17. A distress may be made either upon or off the land. It generally follows the rent, and is, consequently, confined to the land out of which it issues. If two pieces of land, therefore, are let by two separate demises, although both be contained in one lease, a joint distress cannot be made for them ; for this would be to make the rent of one issue out of the other. Rep. temp. Hardw. 245 ; 2 Strange, 1040. But where lands lying in different counties are let together by one de mise at one entire rent, and it does not ap pear that the lands are separate from each other, one distress may be made for the whole rent. 1 Ld. Raym. 55 ; 12 Mod. 76. And where rent is charged upon land which is afterwards held by several tenants, the grantee or landlord may distrain for the whole upon the land of any of them ; because the whole rent is deemed to issue out of every part of the land. Rolle, Abr. 671. If there be a house on the land, the distress may be made in the house 5 if the outer door or window be open, a distress may be taken out of it. Rolle, Abr. 671. If an outer door be open, an inner door may be broken for the purpose of taking a distress, but not otherwise. Comb. 47; Cas. temp. Hard. 168. Barges on a river, attached to the leased premises (a wharf) by ropes, cannot be distrained. 6 Bingh. 150.
1S. By the 5th and 6th sections of the Pennsylvania act of assembly of March 21, 1772, copied from the 11 Geo. II. c. 19, it is enacted that if any tenant for life, years, at will, or otherwise, shall fraudulently or clan destinely convey his goods off the premises to prevent the landlord from distraining the same, such person, or any person by him lawfully authorized, may, within thirty days after such conveyance, seize the same, wher ever they shall be found, and dispose of them in such manner as if they had been dis trained on the premises. Provided that the landlord shall not distrain any goods which shall have been previously sold, bond fide and for a valuable consideration, to one not privy to the fraud. To bring a case within the act, the removal must take place after the rent becomes due, and must be secret, not made in open day; for such removal cannot be said to be clandestine within the meaning of the act. 3 Esp. Nisi P. 15 ; 12 Scrg. & R. Penn. 217 ; 7 Bingh. 423 ; 1 Mood. & M. 535. This English statute has been re-enacted in most of the states. It has, however, been made a question whether goods are protected that were fraudulently removed on the night before the rent had become due. 4 Campb. 135. The goods of a stranger cannot he pur sued: they can be distrained only while they are on the premises. 1 Dall. Penn. 440.
19. A distress for rent may be made either by the person to whom it is due, or, which is the preferable mode, by a constable, or bailiff; or other officer properly authorized by him. If made by a constable, it is necessary that he should be properly authorized to make it; for which purpose the landlord should give him a written authority, or, as it is usually called, a warrant of distress ; but a sub sequent assent and recognition given by the party for whose use the distress has been made is sufficient. Hammond, Nisi P. 382.
Being thus provided with the requisite au thority to make a distress, he seizes the tenant's goods, or some of them in the name of the whole, and declares that he takes them as a distress for the sum expressed in the warrant to be due by the tenant to the land lord, and that he takes them by virtue of the said warrant; which warrant he ought, if required, to show. 1 Leon. 50. When making
the distress, it ought to he made for the whole rent ; but if goods cannot be found at the time sufficient to satisfy the whole, or the party mistake the value of the thing dis trained, he may make a second distress. Bradb. 129, 130 ; 2 Troubat & H. Pract. 155. It must be taken in the daytime after sun rise and before sunset ; except for damage feasant, which may be in the night. Coke, Litt. 142 a.
20. As soon as a distress is made, an in ventory of the goods should be made, and a copy of it delivered to the tenant, together with a notice of taking such distress, with the cause of taking it, and an opportunity thus afforded the owner to replevy or redeem the goods. This notice of taking a distress is not required by the statute to be in and, therefore, parol or verbal notice may be given either to the tenant on the premises, or to the owner of the goods distrained. 12 Mod. 76. And although notice is directed by the act to specify the cause of taking, it is not material whether it accurately state the period of the rent's becoming due, Dougl. 279, or even whether the true cause of taking the goods be expressed therein. 7 Term, 654. If the notice be not personally given, it should be left in writing at the tenant's house, or, according to the directions of the act, at the mansion-house, or other most noto rious place on the premises charged with the rent distrained for.
21. The distrainor may leave or impound the distress on the premises for the five days mentioned in the act; but becomes a tres passer after that time. 2 Dall. Penn. 69. As in many cases it is desirable, for the sake of the tenant, that the goods should not be sold as soon as the law permits, it is usual for him to sign an agreement or consent to their remaining on the premises for a longer time, in the custody of the distrainor, or of a per son by him appointed for that purpose. While in his possession, the distrainor can not use or work cattle distrained, unless it be for the owner's benefit, as to milk a cow, or the like. 5 Dane, Abr. 34.
22. Before the goods are sold, they must be appraised by two reputable freeholders, who shall take an oath or affirmation, to be administered by the sheriff, under-sheriff, or coroner, in the words mentioned in the act. The next requisite is to give six days' public notice of the time and place of sale of the things distrained ; after which, if they have not been replevied, they may be sold by the proper officer, who may apply the proceeds to the payment and satisfaction of the rent, and the expenses of the distress, appraise ment, and sale. The overplus, if any, is to be paid to the tenant. A distrainor has always been held strictly accountable for any irregularity he might commit, although accidental, as well as for the taking of any thing more than was reasonably required to satisfy the demand. Bradby, Dist.; Gilbert, Rent; Taylor, Landl. & T.