DISTRAIN. To take as a pledge pro perty of another, and keep the same until he performs his obligation or until the pro perty is replevied by the sheriff. It was used to secure an appearance in court, pay ment of rent, performance of services, etc.
3 Blackstone, Comm. 231 ; Fitzherbert, Nat. Brev. 32 (B) (C), 223. See DISTRESS. DISTRESS (Fr. distraindre, to draw away from). The taking of a personal chattel out of the possession of a wrong-doer into the custody of the party injured, to procure suds. faction for the wrong done. 3 Blackstone, Comm. 6. It is generally resorted to for the purpose of enforcing the payment of rent, taxes, or other duties, as well as to exact compensation for such damages as result from the trespasses of cattle.
2. This remedy is of great antiquity, and is said by Spelman to have prevailed among the Gothio nations of Europe from the breaking up of the Roman Empire. The English statutes since the days of Magna Charta have, from time to time, extended and modified its features to meet the exigencies of the times. Our state legislatures have generally, and with some alterations, adopted the English provisions, recognizing the old remedy as a salutary and necessary one, equally condu cive to the security of the landlord and to the welfare of society. As a means of collecting rent, however, it is becoming unpopular in the United States, as giving an undue advantage a landlords over other creditors in the collection of debts. Taylor, Landi. & T. 0 556; 2 DEB. Penn. 68; 2 Heist. N. J. 29 ; 1 Harr. & J. Md. 3; 1 M'Cord, So. C. 299 ; 1 Blackf. Ind. 409; 1 Bibb, Ky. 607; 2 Leigh, Va. 370; 3 Dan. Ky. 209.
3. In the New England states the law of attach ment on meene process has superseded the law of distress. 3 Pick. Mass. 105, 360; 4 Dane, Abr. 126. The state of New York has expressly abolished it by statute. The courts of North Carolinalold it to be inconsistent with the spirit of her laws and government, and declare that the common process of distress does not exist in that state. 2 M'Cord, So. C. 39; Cam. & N. No. C. 22. In Georgia it is limited to the cities of Savannah and Augusta; while in Ohio, Alabama, and Tennessee there are no statutory provisions on the subject, except in the former state to secure to the landlord a share of the crops in preference to an execution creditor.
Griffith, Law Reg. 404; Aiken, Dig. 357. Missis sippi has abolished it by statute ; but property cannot be taken in executiin on the premises unless a year's rent, if it be due, is first tendered to the landlord. And in Louisiana the landlord may follow goods removed from his premises for fifteen days after removal, provided they continue to be the property of the tenant. La. Civ. Code, 2675.
4. To authorize a distress for rent there must be an actual demise, and not a mere agreement for one, at a certain fixed rent, payable either in money, in produce, or by services. But a parol demise will be suffi cient, and the terms, although not imme diately obvious, may be capable of being reduced to a certainty. Coke, Litt. 96 a; 9 Wend. N. Y. 322 ; 3 Penn. St. 31 ; 1 Bay, So. C. 315. Thus, an agreement that the lessee shall pay no rent, provided he make repairs, and the value of the repairs is un certain, would not authorize the landlord to distrain. Add. Penn. 347. But where the rent is a certain quantity of grain, the land lord may distrain for so many bushels in arrear, and name the value, in order that if the goods should not be replevied, or the arrears tendered, the officer may know what amount of money is to be raised by the sale ; and in such case the tenant may tender the arrears in grain. 13 Serg. & R. Penn. 52. See 3 Watts & S. Penn. 531.
5. A distress can only be taken for rent in arrear, and not, therefore, until the day after it is due ; unless by the terms of the leas it is made payable in advance. 4 Cow. N. Y. 516 ; 3 Munf. Va. 277. But no previous demand of rent is necessary, except where the conditions of the lease require it. Nor will the right be extinguished either by an unsatisfied judgment for the rent or by taking a promissory note therefor, unless such note has been accepted in absolute payment of the rent. 5 Hill, N. Y. 651; 3 Penn. St. 490.