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CHAPTER I.: OF THE REDRESS OF PRIVATE WRONGS BY THE MERE ACT OF THE PARTIES. - Sir William Blackstone, Commentaries on the Laws of England in Four Books, vol. 2 
Commentaries on the Laws of England in Four Books. Notes selected from the editions of Archibold, Christian, Coleridge, Chitty, Stewart, Kerr, and others, Barron Field’s Analysis, and Additional Notes, and a Life of the Author by George Sharswood. In Two Volumes. (Philadelphia: J.B. Lippincott Co., 1893).
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OF THE REDRESS OF PRIVATE WRONGS BY THE MERE ACT OF THE PARTIES.
At the opening of these commentaries,(a) municipal law was in general defined to be, “a rule of civil conduct, prescribed by the supreme power in a state commanding what is right, and prohibiting what is wrong.”(b) From hence therefore it followed, that the primary objects of the law are the establishment of rights, and the prohibition of wrongs. And this occasioned(c) the distribution of these collections into two general heads; under the former of which we have already considered the rights that were defined and established, and under the latter are now to consider the wrongs that are forbidden and redressed, by the laws of England.
*[*2In the prosecution of the first of these inquiries, we distinguished rights into two sorts: first, such as concern, or are annexed to, the persons of men, and are then called jura personarum, or the rights of persons; which, together with the means of acquiring and losing them, composed the first book of these commentaries: and secondly, such as a man may acquire over external objects, or things unconnected with his person, which are called jura rerum, or the rights of things: and these, with the means of transferring them from man to man, were the subject of the second book. I am now therefore to proceed to the consideration of wrongs; which for the most part convey to us an idea merely negative, as being nothing else but a privation of right. For which reason it was necessary, that before we entered at all into the discussion of wrongs, we should entertain a clear and distinct notion of rights: the contemplation of what is jus being necessarily prior to what may be termed injuria, and the definition of fas precedent to that of nefas.
Wrongs are divisible into two sorts or species: private wrongs and public wrongs. The former are an infringement or privation of the private or civil rights belonging to individuals, considered as individuals; and are thereupon frequently termed civil injuries: the latter are a breach and violation of public rights and duties, which affect the whole community, considered as a community; and are distinguished by the harsher appellation of crimes and misdemeanours. To investigate the first of these species of wrongs, with their legal remedies, will be our employment in the present book; and the other species will be reserved till the next or concluding one.
The more effectually to accomplish the redress of private injuries, courts of justice are instituted in every civilized society, in order to protect the weak from the insults of the stronger, by expounding and enforcing those laws, by which rights are defined and wrongs prohibited. This remedy is therefore principally to be sought by application to these **3]courts of justice; that is, by civil suit or action. For which reason our chief employment in this book will be to consider the redress of private wrongs by suit or action in courts. But as there are certain injuries of such a nature that some of them furnish and others require a more speedy remedy than can be had in the ordinary forms of justice, there is allowed in those cases an extrajudicial or eccentrical kind of remedy; of which I shall first of all treat, before I consider the several remedies by suit: and, to that end, shall distribute the redress of private wrongs into three several species: first, that which is obtained by the mere act of the parties themselves; secondly, that which is effected by the mere act and operation of law; and, thirdly, that which arises from suit or action in courts, which consists in a conjunction of the other two, the act of the parties co-operating with the act of law.
And first of that redress of private injuries which is obtained by the mere act of the parties. This is of two sorts: first, that which arises from the act of the injured party only; and, secondly, that which arises from the joint act of all the parties together: both which I shall consider in their order.
Of the first sort, or that which arises from the sole act of the injured party, is
I. The defence of one’s self, or the mutual and reciprocal defence of such as stand in the relations of husband and wife, parent and child, master and servant. In these cases, if the party himself, or any of these his relations,2 be forcibly attacked in his person or property, it is lawful for him to repel force by force; and the breach of the peace which happens is chargeable upon him only who began the affray.(d) For the law in this case respects the passions of the human mind, and (when external violence is offered to a man himself, or those to whom he bears a near connection) makes it lawful in him to do himself that immediate justice to which he **4]is prompted by nature, and which no prudential motives are strong enough to restrain. It considers that the future process of law is by no means an adequate remedy for injuries accompanied with force; since it is impossible to say to what wanton lengths of rapine or cruelty outrages of this sort might be carried unless it were permitted a man immediately to oppose one violence with another. Self-defence, therefore, as it is justly called the primary law of nature, so it is not, neither can it be in fact, taken away by the law of society. In the English law particularly it is held an excuse for breaches of the peace, nay, even for homicido itself: but care must be taken that the resistance does not exceed the bounds of mere defence and prevention: for then the defender would himself become an aggressor.
II. Recaption or reprisal is another species of remedy by the mere act of the party injured. This happens when any one hath deprived another of his property in goods or chattels personal, or wrongfully detains one’s wife, child, or servant: in which case the owner of the goods, and the husband, parent, or master, may lawfully claim and retake them wherever he happens to find them, so it be not in a riotous manner, or attended with a breach of the peace.(e) The reason for this is obvious; since it may frequently happen that the owner may have this only opportunity of doing himself justice: his goods may be afterwards conveyed away or destroyed; and his wife, children, or servants concealed or carried out of his reach; if he had no speedier remedy than the ordinary process of law. If therefore he can so contrive it as to gain possession of his property again without force or terror, the law favours and will justify his proceeding. But as the public peace is a superior consideration to any one man’s private property; and as, if individuals were once allowed to use private force as a remedy for private injuries, all social justice must cease, the strong would give law to the weak, and every man would revert to a state of nature; for these reasons it is provided that this natural right of recaption *[*5shall never be exerted where such exertion must occasion strife and bodily contention, or endanger the peace of society. If, for instance, my horse is taken away, and I find him in a common, a fair, or a public inn, I may lawfully seize him to my own use; but I cannot justify breaking open a private stable, or entering on the grounds of a third person, to take him, except he be feloniously stolen;(f) but must have recourse to an action at law.3
III. As recaption is a remedy given to the party himself for an injury to his personal property, so, thirdly, a remedy of the same kind for injuries to real property is by entry on lands and tenements when another person without any right has taken possession thereof.4 This depends in some measure on like reasons with the former; and like that, too, must be peaceable and without force. There is some nicety required to define and distinguish the cases in which such entry is lawful or otherwise; it will therefore be more fully considered in a subsequent chapter; being only mentioned in this place for the sake of regularity and order.
IV. A fourth species of remedy by the mere act of the party injured is the abatement or removal of nuisances.5 What nuisances are, and their several species, we shall find a more proper place to inquire under some of the subsequent divisions. At present I shall only observe, that whatsoever unlawfully annoys or doth damage to another is a nuisance; and such nuisance may be abated, that is, taken away or removed, by the party aggrieved thereby, so as he commits no riot in the doing of it.(g) If a house or wall is erected so near to mine that it stops my antient lights, which is a private nuisance, I may enter my neighbour’s land and peaceably pull it down.(h) Or if a new gate be erected across the public highway, which is a common nuisance, any of the king’s subjects passing that way may cut it down and destroy it.(i) **6]And the reason why the law allows this private and summary method of doing one’s self justice, is because injuries of this kind, which obstruct or annoy such things as are of daily convenience and use, require an immediate remedy, and cannot wait for the slow progress of the ordinary forms of justice.
V. A fifth case in which the law allows a man to be his own avenger, or to minister redress to himself, is that of distraining cattle or goods for the non-payment of rent, or other duties;6 or distraining another’s cattle damage-feasant, that is, doing damage or trespassing upon his land. The former intended for the benefit of landlords, to prevent tenants from secreting or withdrawing their effects to his prejudice; the latter arising from the necessity of the thing itself, as it might otherwise be impossible at a future time to ascertain whose cattle they were that committed the trespass or damage.
As the law of distresses is a point of great use and consequence, I shall consider it with some minuteness: by inquiring, first, for what injuries a distress may be taken; secondly, what thing may be distrained; and thirdly, the manner of taking, disposing of, and avoiding distresses.
1. And first it is necessary to premise that a distress,(j)districtio, is the taking a personal chattel out of the possession of the wrong-doer into the custody of the party injured, to procure a satisfaction for the wrong committed. 1. The most usual injury for which a distress may be taken is that of non-payment of rent. It was observed in the former book,(k) that distresses were incident by the common law to every rent-service, and by particular reservation to rent-charges also; but not to rent-seck till the statute 4 Geo. II. c. 28 extended the same remedy to all rents alike, and thereby in effect abolished all material distinction between them. So that now we may lay it down as a universal principle, **7]that a distress may be taken for any kind of rent in arrear; the detaining whereof beyond the day of payment is an injury to him that is entitled to receive it.7 2. For neglecting to do suit at the lord’s court,(l) or other certain personal service,(m) the lord may distrain of common right. 3. For amercements in a court-leet a distress may be had of common right; but not for amercements in a court-baron, without a special prescription to warrant it.(n) 4. Another injury for which distresses may be taken is where a man finds beasts of a stranger wandering in his grounds damage-feasant; that is, doing him hurt or damage by treading down his grass or the like; in which case the owner of the soil may distrain them till satisfaction be made him for the injury he has thereby sustained. 5. Lastly, for several duties and penalties inflicted by special acts of parliament, (as for assessments made by commissioners of sewers,(o) or for the relief of the poor,)(p) remedy by distress and sale is given; for the particulars of which we must have recourse to the statutes themselves: remarking only that such distresses(q) are partly analogous to the antient distress at common law, as being repleviable and the like; but more resembling the common law process of execution, by seizing and selling the goods of the debtor under a writ of fieri facias, of which hereafter.
2. Secondly, as to the things which may be distrained, or taken in distress,8 we may lay it down as a general rule, that all chattels personal are liable to be distrained, unless particularly protected or exempted. Instead therefore of mentioning what things are distrainable, it will be easier to recount those which are not so, with the reason of their particular exemptions.(r) And, 1. As every thing which is distrained is presumed to be the property of the wrong-doer, it will follow that such things wherein no man can have an absolute and valuable property (as dogs, cats, rabbits, and *[*8all animals feræ naturæ,) cannot be distrained. Yet if deer (which are feræ naturæ) are kept in a private enclosure for the purpose of sale or profit, this so far changes their nature, by reducing them to a kind of stock or merchandise, that they may be distrained for rent.(s) 2. Whatever is in the personal use or occupation of any man is for the time privileged and protected from any distress; as an axe with which a man is cutting wood, or a horse while a man is riding him. But horses drawing a cart may (cart and all) be distrained for rent-arrere; and also if a horse, though a man be riding him, be taken damage-feasant, or trespassing in another’s grounds, the horse (notwithstanding his rider) may be distrained and led away to the pound.9(t) Valuable things in the way of trade shall not be liable to distress; as a horse standing in a smith-shop to be shoed, or in a common inn; or cloth at a tailor’s house; or corn sent to a mill or a market. For all these are protected and privileged for the benefit of trade, and are supposed in common presumption not to belong to the owner of the house, but to his customer.10 But, generally speaking, whatever goods and chattels the landlord finds upon the premises, whether they in fact belong to the tenant or a stranger, are distrainable by him for rent: for otherwise a door would be open to infinite frauds upon the landlord; and the stranger has his remedy over by action on the case against the tenant, if by the tenant’s default the chattels are distrained so that he cannot render them when called upon.11 With regard to a stranger’s beasts which are found on the tenant’s land, the following distinctions are, however, taken. If they are put in by consent of the owner of the beasts, they are distrainable immediately afterwards for rent-arrere by the landlord.(u) So also if the stranger’s cattle break the fences and commit a trespass by coming on the land, they are distrainable immediately by the lessor for the tenant’s rent, as a punishment to the owner of the beasts for the wrong committed through his negligence.(v) But if the lands were not *[*9sufficiently fenced so as to keep out cattle, the landlord cannot distrain them till they have been levant and couchant (levantes et cubantes) on the land; that is, have been long enough there to have lain down and rose up to feed; which in general is held to be one night at least:12 and then the law presumes that the owner may have notice whether his cattle have strayed, and it is his own negligence not to have taken them away. Yet, if the lessor or his tenant were bound to repair the fences and did not, and thereby the cattle escaped into their grounds without the negligence or default of the owner; in this case, though the cattle may have been levant and couchant, yet they are not distrainable for rent till actual notice is given to the owner that they are there, and he neglects to remove them:(w) for the law will not suffer the landlord to take advantage of his own or his tenant’s wrong.13 3. There are also other things privileged by the antient common law; as a man’s tools and utensils of his trade, the axe of a carpenter, the books of a scholar, and the like: which are said to be privileged for the sake of the public, because the taking them away would disable the owner from serving the commonwealth in his station.14 So, beasts of the plough,15averia carucæ, and sheep, are privileged from distresses at common law;(x) while dead goods, or other sort of beasts, which Bracton calls catalla otiosa, may be distrained. But as beasts of the plough may be taken in execution for debt, so they may be for distress by statute, which partake of the nature of executions.(y) And perhaps the true reason why these and the tools of a man’s trade were privileged at the common law, was because the distress was then merely intended to compel the payment of the rent, and not as a satisfaction for its non-payment: and therefore to deprive the party of the instruments and means of paying it would counteract the very end of the distress.(z) 5. Nothing shall be distrained for rent which may not be rendered again in as good plight as when it was distrained: for which reason milk, fruit, and the like cannot be distrained, a distress at **10]common law being only in the nature of pledge or security, to be restored in the same plight when the debt is paid. So, antiently, sheaves or shocks of corn could not be distrained, because some damage must needs accrue in their removal; but a cart loaded with corn might, as that could be safely restored. But now, by statute 2 W. and M. c. 5, corn in sheaves or cocks, or loose in the straw, or hay in barns or ricks, or otherwise, may be distrained, as well as other chattels.16 6. Lastly, things fixed to the freehold may not be distrained; and caldrons, windows, doors, and chimney-pieces; for they savour of the realty.17 For this reason also corn growing could not be distrained, till the statute 11 Geo. II. c. 19 empowered landlords to distrain corn, grass, or other products of the earth, and to cut and gather them when ripe.18
Let us next consider, thirdly, how distresses may be taken, disposed of, or avoided. And first I must premise that the law of distresses is greatly altered within a few years last past. Formerly they were looked upon in no other light than as a mere pledge or security for payment of rent or other duties, or satisfaction for damage done. And so the law still continues with regard to distresses of beasts taken damage-feasant, and for other causes, not altered by act of parliament; over which the distrainor has no other power than to retain them till satisfaction is made. But, distresses for rent-arrere being found by the legislature to be the shortest and most effectual method of compelling the payment of such rent, many beneficial laws for this purpose have been made in the present century, which have much altered the common law as laid down in our antient writers.
In pointing out therefore the methods of distraining, I shall in general suppose the distress to be made for rent, and remark, where necessary, the differences between such distress and one taken for other causes.
**11]In the first place then, all distresses must be made by day,19 unless in the case of damage-feasant; an exception being there allowed, lest the beasts should escape before they are taken.(a) And, when a person intends to make a distress, he must, by himself or his bailiff, enter on the demised premises; formerly during the continuance of the lease, but now,(b) if the tenant holds over, the landlord may distrain within six months after the determination of the lease; provided his own title or interest, as well as the tenant’s possession, continue at the time of the distress.20 If the lessor does not find sufficient distress on the premises, formerly he could resort nowhere else; and therefore tenants who were knavish made a practice to convey away their goods and stocks fraudulently from the house or lands demised, in order to cheat their landlords. But now(c) the landlord may distrain any goods of his tenant carried off the premises clandestinely, wherever he finds them within thirty days after, unless they have been bonâ fide sold for valuable consideration; and all persons privy to or assisting in such fraudulent conveyance forfeit double the value to the landlord.21 The landlord may also distrain the beasts of his tenant feeding upon any commons or wastes appendant or appurtenant to the demised premises.22 The landlord might not formerly break open a house to make a distress; for that is a breach of the peace. But when he was in the house, it was held that he might break open an inner door;(d) and now(e) he may, by the assistance of the peace-officer of the parish, break open in the daytime any place whither the goods have been fraudulently removed and locked up to prevent a distress; oath being first made, in case it be a dwelling-house, of a reasonable ground to suspect that such goods are concealed therein.
Where a man is entitled to distrain for an entire duty, he ought to distrain for the whole at once, and not for part at one time and part at another.(f)23 But if he distrains for the whole, and there is not sufficient on the premises, or he happens *[*12to mistake in the value of the thing distrained, and so takes an insufficient distress, he may take a second distress to complete his remedy.(g)
Distresses must be proportioned to the thing distrained for. By the statute of Marlbridge, 52 Hen. III. c. 4, if any man takes a great or unreasonable distress for rent arrere, he shall be heavily amerced for the same. As if(h) the landlord distrains two oxen for twelve pence rent; the taking of both is an unreasonable distress; but if there were no other distress nearer the value to be found, he might reasonably have distrained one of them; but for homage, fealty, or suit and service, as also for parliamentary wages, it is said that no distress can be excessive.(i) For, as these distresses cannot be sold, the owner upon making satisfaction, may have his chattels again. The remedy for excessive distresses is by a special action on the statute of Marlbridge; for an action of trespass is not maintainable upon this account, it being no injury at the common law.(j)24
When the distress is thus taken, the next consideration is the disposal of it. For which purpose the things distrained must in the first place be carried to some pound, and there impounded by the taker. But in their way thither they may be rescued by the owner, in case the distress was taken without cause or contrary to law: as if no rent be due, if they were taken upon the highway, or the like; in these cases the tenant may lawfully make rescue.(k) But if they be once impounded, even though taken without any cause, the owner may not break the pound and take them out; for they are then in the custody of the law.(l)
A pound (parcus, which signifies any enclosure) is either pound-overt, that is, open overhead; or pound-covert, that is, close. By the statute 1 & 2 P. and M. c. 12, no distress of cattle can be driven out of the hundred where it is taken, **13]unless to a pound-overt within the same shire, and within three miles of the place where it was taken. This is for the benefit of the tenants, that they may know where to find and replevy the distress. And by statute 11 Geo. II. c. 19, which was made for the benefit of landlords, any person distraining for rent may turn any part of the premises upon which a distress is taken into a pound, pro hac vice, for securing of such distress. If a live distress of animals be impounded in a common pound-overt, the owner must take notice of it at his peril; but if in any special pound-overt, so constituted for this particular purpose, the distrainor must give notice to the owner: and in both these cases the owner, and not the distrainor, is bound to provide the beasts with food and necessaries. But if they are put in a pound-covert, in a stable, or the like, the landlord or distrainor must feed and sustain them.(m)25 A distress of household goods, or other dead chattels, which are liable to be stolen or damaged by weather, ought to be impounded in a pound-covert; else the distrainor must answer for the consequences.
When impounded, the goods were formerly, as was before observed, only in the nature of a pledge or security to compel the performance of satisfaction; and upon this account it hath been held(n) that the distrainor is not at liberty to work or use a distrained beast. And thus the law still continues with regard to beasts taken damage-feasant, and distresses for suit or services; which must remain impounded till the owner makes satisfaction, or contests the right of distraining by replevying the chattels. To replevy (replegiare, that is, to take back the pledge) is when a person distrained upon applies to the sheriff or his officers, and has the distress returned into his own possession, upon giving good security to try the right of taking it in a suit of law, and, if that be determined against him, to return the cattle or goods once more into the hands of the distrainor. This is called a replevin, of which more will be said hereafter. At present I shall only observe that, as a distress is at common *[*14law only in nature of a security for the rent or damages done, a replevin answers the same end to the distrainor as the distress itself, since the party replevying gives security to return the distress if the right be determined against him.
This kind of distress, though it puts the owner to inconvenience, and is therefore a punishment to him, yet if he continues obstinate and will make no satisfaction or payment, it is no remedy at all to the distrainor. But for a debt due to the crown, unless paid within forty days, the distress was always salable at common law.(o) And for an amercement imposed at a court-leet, the lord may also sell the distress:(p) partly because, being the king’s court of record, its process partakes of the royal prerogative;(q) but principally because it is in the nature of an execution to levy a legal debt. And so, in the several statute-distresses before mentioned, which are also in the nature of executions, the power of sale is likewise usually given, to effectuate and complete the remedy. And in like manner, by several acts of parliament,(r) in all cases of distress for rent, if the tenant or owner do not, within five days after the distress is taken,26 and notice of the cause thereof given him, replevy the same with sufficient security, the distrainor, with the sheriff or constable, shall cause the same to be appraised by two sworn appraisers, and sell the same towards satisfaction of the rent and charges; rendering the overplus, if any, to the owner himself. And by this means a full and entire satisfaction may now be had for rent in arrere by the mere act of the party himself, viz., by distress, the remedy given at common law; and sale consequent thereon, which is added by act of parliament.
Before I quit this article, I must observe, that the many particulars which attend the taking of a distress used formerly to make it a hazardous kind of proceeding: for if any *[*15one irregularity was committed it vitiated the whole and made the distrainors trespassers ab initio.(s) But now, by the statute 11 Geo. II. c. 19, it is provided, that for any unlawful act done the whole shall not be unlawful, or the parties trespassers ab initio: but that the party grieved shall only have an action for the real damage sustained, and not even that if tender of amends is made before any action is brought.
VI. The seizing of heriots, when due on the death of a tenant, is also another species of self-remedy, not much unlike that of taking cattle or goods in distress. As for that division of heriots which is called heriot-service, and is only a species of rent, the lord may distrain for this as well as seize; but for heriot-custom (which Sir Edward Coke says(t) lies only in prender, and not in render) the lord may seize the identical thing itself, but cannot distrain any other chattel for it.(u) The like speedy and effectual remedy of seizing is given with regard to many things that are said to lie in franchise; as waifs, wrecks, estrays, deodands, and the like; all which the person entitled thereto may seize without the formal process of a suit or action. Not that they are debarred of this remedy by action; but have also the other and more speedy one, for the better asserting their property; the thing to be claimed being frequently of such a nature as might be out of the reach of the law before any action could be brought.
These are the several species of remedies which may be had by the mere act of the party injured. I shall next briefly mention such as arise from the joint act of all the parties together. And these are only two, accord and arbitration.
I. Accord is a satisfaction agreed upon between the party injuring and the party injured; which, when performed, is a bar of all actions upon this account. As if a man contract **16]to build a house or deliver a horse, and fail in it; this is an injury for which the sufferer may have his remedy by action; but if the party injured accepts a sum of money or other thing as a satisfaction, this is a redress of that injury, and entirely takes away the action.(w)27 By several late statutes, (particularly 11 Geo. II. c. 19, in case of irregularity in the method of distraining, and 24 Geo. II. c. 24, in case of mistakes committed by justices of the peace,) even tender of sufficient amends to the party injured is a bar of all actions, whether he thinks proper to accept such amends or no.28
II. Arbitration is where the parties injuring and injured submit all matters in dispute, concerning any personal chattels or personal wrong, to the judgment of two or more arbitrators, who are to decide the controversy; and if they do not agree, it is usual to add, that another person be called in as umpire, (imperator or impar,)(x) to whose sole judgment it is then referred: or frequently there is only one arbitrator originally appointed. This decision, in any of these cases, is called an award. And thereby the question is as fully determined, and the right transferred or settled, as it could have been by the agreement of the parties or the judgment of a court of justice.(y) But the right of real property cannot thus pass by a mere award:(z) which subtilty in point of form (for it is now reduced to nothing else) had its rise from feodal principles; for if this had been permitted the land might have been aliened collusively without the consent of the superior. Yet doubtless an arbitrator may now award a conveyance or a release of land; and it will be a breach of the arbitration-bond to refuse compliance.29 For though originally the submission to arbitration used to be by word, or by deed, yet, both of these being revocable in their nature, it is now become the practice to enter into mutual bonds with condition to stand to the award or arbitration of the arbitrators **17]or umpire therein named.(a)30 And experience having shown the great use of these peaceable and domestic tribunals, especially in settling matters of account, and other mercantile transactions, which are difficult and almost impossible to be adjusted on a trial at law, the legislature has now established the use of them as well in controversies where causes are depending as in those where no action is brought: enacting, by statute 9 & 10 W. III. c. 15, that all merchants and others who desire to end any controversy, suit, or quarrel, (for which there is no other remedy but by personal action or suit in equity,) may agree that their submission of the suit to arbitration or umpirage shall be made a rule of any of the king’s courts of record, and may insert such agreement in their submission or promise, or condition of the arbitration-bond: which agreement being proved upon oath by one of the witnesses thereto, the court shall make a rule that such submission and award shall be conclusive: and, after such rule made, the parties disobeying the award shall be liable to be punished as for a contempt of the court; unless such award shall be set aside for corruption or other misbehaviour in the arbitrators or umpire, proved on oath to the court within one term after the award is made. And, in consequence of this statute, it is now become a considerable part of the business of the superior courts to set aside such awards when partially or illegally made; or to enforce their execution, when legal, by the same process of contempt as is awarded for disobedience to those rules and orders which are issued by the courts themselves.31
[(a) ] Introd. 2.
[1 ] I imagine this to be a misquotation of the following passage:—“Est enim lex nihil aliud, nisi recta et a numine Deorum tracta ratio, imperans honesta, prohibens contraria.” Phil. xi. 12.—Coleridge.
[(c) ] Book i. ch. 1.
[2 ] It is said that, according to 1 Salk. 407, 1 Ld. Raym. 62, and Bul. N. P. 18, a master cannot justify an assault in defence of his servant, because he might have an action per quod servitium amisit. But, according to 2 Rol. Abr. 546, D. pl. 2, Owen, 151, Bac. Abr. Master and Servant. P., such an interference by the master is lawful; and lord Hale (1 vol. 484) says, “That the law had been for a master killing in the necessary defence of his servant, the husband in defence of his wife, the wife of the husband, the child of the parent, or the parent of the child, for the act of the assistant shall have the same construction in such cases as the act of the party assisted should have had if it had been done by himself; for they are in a mutual relation to one another.” But though, as observed by the learned commentator, the law respects the passions of the human mind, yet it does not allow this interference as an indulgence of revenge, but merely to prevent the injury, or a repetition of it; and therefore, in a plea by a father, master, &c., founded on this ground, it is necessary to state that the plaintiff would have beat the son, servant, &c., if the defendant had not interfered; and if it be merely alleged that the plaintiff had assaulted or beat, &c., it will be demurrable, for if the assault on the master, &c. be over, the servant cannot strike by way of revenge, but merely in order to prevent an injury. 2 Stra. 953. When a person does not stand in either of these relations, he cannot justify an interference on behalf of the party injured, but merely as an indifferent person, to preserve the peace. 2 Stra. 954.—Chitty.
[(d) ] 2 Roll. Abr. 546. 1 Hawk. P. C. 131.
[(e) ] 3 Inst. 134. Hal Anal. 46.
[(f) ] 2 Roll. Rep. 55, 56, 208. 2 Roll. Abr. 565, 566.
[3 ] In the case of personal property improperly detained or taken away, it may be retaken from the house and custody of the wrong-doer, even without a previous request; but, unless it was seized or attempted to be seized forcibly, the owner cannot justify doing any thing more than gently laying his hands on the wrong-doer in order to recover it, (8 T. R. 78. 2 Roll. Abr. 56, 208. 2 Roll. Abr. 565, pl. 50. 2 Leonard 302. Selw. N. P. tit. Assault and Battery;) nor can he without leave enter the door of a third person, not privy to the wrongful detainer, to take his goods therefrom. 2 Roll. Abr. 55, 56, 308. 2 Roll. Abr. 565, I. pl. 2. Bac. Abr. Trespass, F.—Chitty.
If the possession of one’s property be held by another, the owner may take possession if he can do so without tumult and riot or breach of the peace; but he has no right to use unreasonable violence. Davis vs. Whitridge, 2 Strobh. 232.
The owner of personal property left in the possession of a third person may by his own act repossess himself of such property, though it be taken from the possession of such third person by virtue of a writ of replevin; and the plaintiff in the replevin cannot maintain trespass against him. Spencer vs. McGowen, 13 Wend. 256. One whose chattel has been wrongfully taken from him may enter upon the land of the taker for the purpose of retaking it, without subjecting himself even to nominal damages. Chambers vs. Bedell, 2 Watts & Serg. 225.—Sharswood.
[4 ] With respect to land and houses also, resumption of possession by the mere act of the party is frequently allowed. Thus, if a tenant omit at the expiration of his tenancy to deliver up possession, the landlord may legally, in his absence, break open the outer door and resume possession, though some articles of furniture remain therein; and, if the landlord put his cattle on the land, and the tenant distrain them as damage-feasant, he may be sued. 1 Bing. R. 158. 7 T. R. 431, 432. 1 Price R. 53. And. 109, 6 Taunt. 202. If the landlord, in resuming possession, be guilty of a forcible entry with strong hand, or other illegal breach of the peace, he will be liable to an indictment. 7 T. R. 432. 3 T. R. 295. 6 Taunt. 202. 8 T. R. 364, 403. But the circumstance of the owner of property using too much force in regaining possession, but taking care to avoid personal injury to the party resisting, will not enable the latter to sue him. See cases in last two notes. But if any unnecessary violence to the person be used in rescuing or defending possession of real or personal property, the party guilty of it is liable to be sued. 8 T. R. 299. Id. 78. 1 Saund. 296, n. 1. So, as the law allows retaking of the possession of land, it also sanctions the due defence of the possession thereof; and therefore, though if one enter into my ground I must request him to depart before I can lay hands on him to turn him out, yet if he refuse I may then push him out, and if he enter with actual force I need not first request him to be gone, but may lay hands on him immediately. 8 T. R. 78. 1 Salk. 641. See 1 Bing. 158.—Chitty.
[5 ] Thus, in case of a public nuisance, if a house be built across a highway, any person may pull it down; and it is said he need not observe particular care in abating it, so as to prevent injury to the materials. And though a gate, illegally fastened, might have been opened without cutting it down, yet the cutting would be lawful. However, it is a general rule that the abatement must be limited by its necessity, and no wanton or unnecessary injury must be committed. 2 Salk. 458. As to private nuisances, they also may be abated; and therefore it was recently held, that if a man in his own soil erect a thing which is a nuisance to another, as by stopping a rivulet and so diminishing the water used by the latter for his cattle, the party injured may enter on the soil of the other and abate the nuisance, and justify the trespass; and this right of abatement is not confined merely to a house, mill, or land. 2 Smith’s Rep. 9. 2 Rol. Abr. 565. 2 Leon. 202. Com. Dig. Pleader, 3 M. 42. 3 Lev. 92. So it seems that a libellous print or paper, affecting a private individual, may be destroyed, or (which is the safer course) taken and delivered to a magistrate. 5 Coke, 125, b. 2 Camp. 511. Per Best, J., in the Earl Lonsdale vs. Nelson, 2 Bar. & Cres. 311, “nuisances, by an act of commission, are committed in defiance of those whom such nuisances injure, and the injured party may abate them without notice to the person who committed them; but there is no decided case which sanctions the abatement by an individual of nuisances from omission, except that of cutting the branches of trees which overhang a public road or the private property of the person who cuts them. The permitting these branches to extend so far beyond the soil of the owner of the trees is an unequivocal act of negligence, which distinguishes this case from most of the other cases that have occurred. The security of lives and property may sometimes require so speedy a remedy as not to allow time to call on the person on whose property the mischief has arisen to remedy it: in such cases an individual would be justified in abating a nuisance from omission without notice. In all other cases of such nuisances, persons should not take the law into their own hands, but follow the advice of lord Hale, and appeal to a court of justice;” and see, further, 3 Dowl. & R. 556. And it was held in the same case, that where a person is bound to repair works connected with a port, and neglects to do so, another person cannot justify an entry to repair without averring and proving that immediate repairs were necessary, and the party’s right to use the port. As to cutting trees, “if the boughs of your trees grow out into my land, I may cut them.” Per Croke, J., Rol. Rep. 394. 3 Buls. 198. Vin. Abr. Trees, E. & tit. Nuisance, W. 2, pl. 3.
The abater of a private nuisance cannot remove the materials further than necessary, or convert them to his own use. Dalt. c. 50. And so much only of the thing as causes the nuisance should be removed; as, if a house be built too high, only so much of it as is too high should be pulled down. 9 Rep. 53. God. 221. 2 Stra. 686.—Chitty.
[(g) ] Rep. 101. 9 Rep. 55.
[(h) ] Salk. 459.
[(i) ] Cro. Car. 184.
[6 ] As to distresses in general, see Gilbert on Distresses, by Hunt; Bradley on Dist.; Com. Dig. Distress; Bac. Abr. Distress; Vin. Abr. Distress; 2 Saunders, index, Distress; Wilkinson on Replevin. As the law allows a creditor to arrest the person of his debtor as a security for his being forthcoming at the determination of the suit, so in certain cases it permits a landlord to distrain for arrears of rent, in order to compel the payment of it. It is laid down that the remedy for recovery of rent by way of distress was derived from the civil law; for anciently, in the feudal law, the neglect to attend at the lord’s courts, or not doing feudal service, was a forfeiture of the estate; but these feudal forfeitures were afterwards turned into distresses according to the pignotary method of the civil law; that is, the land let out to the tenant is hypothecated, or as a pledge in his hands, to answer the rent agreed to be paid to the landlord; and the whole profits arising from the land are liable to the lord’s seizure for the payment and satisfaction of it. Gilb. Dist. 2. Gilb. Rents, 3. Bacon on Govt. 77. Vigillius, 257, 271, 326. Cromp. Int. 9. 2 New R. 224. The distress could not at common law, before the stat. 2 W. and M. c. 5, be sold, but could only be impounded and detained, in order to induce the tenant to perform the feudal service. Distresses, therefore, were at common law only allowed when the relation of landlord and tenant subsisted, and when, consequently, there remained feudal service to be performed; and hence the necessity at the present day that the landlord distraining should, at the time of the distress, be entitled to the legal reversion; and hence the consequence that if a landlord, after rent has become due, and before payment, conveys his legal estate to another, he cannot distrain, (Gilb. Action Debt, 411. Bro. Debt, pl. 93. Vaughan, 40. Bac. Abr. Distress, A.;) and, for the same reason, it is necessary to aver in an avowry and cognizance that at the time of the distress the tenancy subsisted. The common law was altered, as far as regards tenants holding over, by the 8 Anne, c. 14, which provided that if a person retain possession of the estate after the expiration of his tenancy, the landlord, if his interest continue, may distrain within six months. Before this statute it was usual, and still may be expedient, to provide that the last half-year’s rent shall be paid at a day prior to the determination of the lease, so as to enable the landlord to distrain before the removal of the tenant. Co. Litt. 47, b. If by agreement or custom the tenant has an away-going crop, and right to hold over to clear the same, the landlord may, during such excrescence of the term, distrain at common law. 1 Hen. Bla. 8. So the 11 Geo. II. c. 19, s. 8 enables a landlord to distrain for double rent if a tenant do not deliver up possession after the expiration of his own notice to quit, by which he incurs double rent so long as he holds over. When a lessor has not the legal estate or reversion, he should reserve a power to distrain, which will entitle him to do so. Co. Litt. 47, a. 5 Co. 3. But though the principal object of a distress was to compel the performance of feudal services, and, consequently, if rent be reserved on a letting merely of personal property, no distress can be taken, (5 Co. 17. 3 Wils. 27,) yet a distress may be made for rent of a ready-furnished house or lodging, because it is then considered that the rent issues out of the principal,—the real property demised. 2 New Rep. 224.
Accepting a note of hand and giving a receipt for the rent does not, till payment, preclude the landlord from distraining; and so if the landlord accept a bond; but a judgment obtained on either of such instruments would preclude the right of distress. See Bull. N. P. 182. An agreement to take interest on rent in arrear does not take away the right of distress. 2 Chit. R. 245. Where there are rents for which the party cannot distrain, although he may have an assize, yet remedy may be had in equity. Per Comyns, B., Exch. Trin. 5 & 6 Geo. II. 1 Selw. N. P. 6 ed. 673.
To entitle a person to distrain for non-payment of money, it must be due under a demise, and for rent fixed and certain in its nature; and therefore, if a person be let into possession under an agreement for a lease which does not contain words of immediate demise, no distress can be made, unless from a previous payment of rent or other circumstance a tenancy from year to year can be inferred; and the only remedy is by action for use and occupation. 2 Taunt. 148. 5 B. & A. 322. 13 East, 19. So, as lord Coke quaintly says, (Co. Litt. 96, a.,) it is a maxim in law that no distress can be taken for any services that are not put into certainty nor can be reduced to any certainty, for id certum est quod certum reddi potest, but yet in some cases there may be a certainty in uncertainty. Therefore, if a man hold land, paying so much per acre, although in the terms of the demise the number of acres be not fixed, the lord may distrain, (Vin. Abr. Distress, E. See form of avowry, 3 Chitty on Pl. 4th edit. 1051;) but where an estate has been let without in any way fixing the amount of rent, the only remedy is by action.—Chitty.
[(j) ] The thing itself taken by this process, as well as the process itself, is in our law-books very frequently called a distress.
[(k) ] Book ii. ch. 3.
[7 ] But, to entitle a party to distrain, there must be rent due in the legal sense of that word. One man may be in possession of another’s house or land with his consent, and may be bound to render him such a sum for the use and occupation of it as a jury shall deem a proper equivalent for the rent; but if there be no actual demise, nor any contract for a demise amounting to as much, and no fixed rent has been agreed on or paid, the owner cannot distrain; for in his avowry to an action of replevin for such distress he would be bound to state an actual tenancy and the definite terms of it, which it would be impossible to do under such a relation as above supposed. Kegan vs. Johnson, 2 Taunt. 148. Dunk vs. Hunter, 5 B. & A. 322.—Coleridge.
[(l) ] Bro. Abr. tit. distress, 15.
[(m) ] Co. Litt. 47.
[(n) ] Brownl. 36.
[(o) ] Stat. 7 Anne, c. 10.
[(p) ] Stat. 43 Eliz. c. 2.
[(q) ] 1 Burr. 539.
[8 ] Besides the rules in the text, it is a maxim of law that goods in the custody of the law cannot be distrained: thus, goods distrained, damage-feasant, cannot be distrained, (Co. Litt. 47, a.;) so goods taken in execution, (Willes, 131;) but the goods so taken must be removed from the premises within a reasonable time, or they will not be protected. 1 Price, 277. 1 M. &. S. 711. However, growing corn sold under a writ of fi. fa. cannot be distrained unless the purchasor allow it to remain uncut an unreasonable time after it is ripe, (2 B. & B. 362. 5 Moore, 97, S. C.;) but goods taken under a void outlawry are liable to distress. 7 T. R. 259. For the protection of landlords, by the 8 Anne, c. 14, s. 1, no goods taken in execution upon any premises demised can be removed until rent, not exceeding one year’s arrear, be paid. Under this act the sheriff is bound to satisfy the rent in the first instance. 4 Moore, 473. In cases to which the statute applies, the land lord is entitled to be paid his whole rent without deducting poundage. 1 Stra. 643. Rent only due at the time of the levy can be obtained under the act, (1 M. & S. 245. 1 Price, 274;) but forehand-rent, or rent stipulated to be paid in advance, may be obtained, (7 Price, 690;) so rent that falls due on the day of the levy. Tidd, Prac. 8th edit. 1054. After the landlord has had one year’s rent paid him, he is not entitled to another upon a second execution, (2 Stra. 1024. 2 B. & B. 362. 5 Moore, 97, S. C.,) unless, as we have just seen, the goods be not removed within a reasonable time. The ground landlord is not within the act where there is an execution against the under-lessee. 2 Stra. 787. If the sheriff remove the goods without payment of the rent, and after notice and a formal demand of the rent, an action on the case lies against him. Vin Abr. Dist. c. 3. Stra. 97. 3 B. & A. 440. But no specific and formal notice is necessary. 3 B. & A. 645. 4 Moore, 473. 2 B. & B. 67, S. C. The action lies though part only of the goods be removed, (4 Moore, 473, 2 B. & B. 67, S. C.;) but the landlord’s consenting to the removal waives the remedy. 3 Camp. 24. An executor or administrator, (1 Stra. 212,) or a trustee of an outstanding satisfied term to attend the inheritance, may sue. 4 Moore, 473. 2 B. & B. 67, S. C. Instead of an action, the landlord may move the court out of which the execution issued that he may be paid what is due to him out of the money levied and in the sheriff’s hands, (Ca. temp. Hardw. 255, 2 Wils. 140,) and the court will grant the motion, though the sheriff had no notice of the rent due till after the removal. 3 B. & A. 440; and see further, on this point, Tidd’s Prac. 8th edit. 1053-1055.
The recent bankrupt act provides that, in case of bankruptcy, no distress made after act of bankruptcy shall be available for more than a year’s rent, but the landlord may prove for the excess. 1 Geo. IV. c. 16, § 74; and see ante, 2 book, 473.
For the protection of landlords, by the 56 Geo. III. c. 50, no sheriff or other officer shall carry off, or sell, or dispose of, for the purpose of being carried off from any lands, any straw, chaff, turnips, in any case, nor any hay or other produce which, according to any covenant or written agreement, ought not to be so carried off, provided notice be given to the sheriff of the existence of such covenant; but, by third section, the sheriff may sell on condition of such crops being consumed on the land. The sixth section provides that landlords shall not distrain for rent on the purchasor of any such crops sold according to third section, nor on articles or cattle, &c. employed for the purpose of consuming such crops.—Chitty.
[(r) ] Co. Litt. 47.
[(s) ] Davis vs. Powl, C. B. Hil. 11 Geo. II.
[9 ] But this doctrine is contrary to Sayer Rep. 139. 2 Keb. 596. Cro. Eliz. 596. Co. Litt. 47, a. Roll. Abr. Distress, A. pl. 4; and was expressly overruled in 6 Term R. 138, on the ground that the distraining a horse as damage-feasant whilst any person is riding him would perpetually lead to a breach of the peace. And it has been held that nets or ferrets cannot be taken damage-feasant in a warren if they are in the hands of the person using them. Harg. Co. Litt. note 13. Cro. Eliz. 550. So a loom cannot be distrained while in the hands of the weaver, (Willes, 517,) nor wearing-apparel if in actual use; but if put off, though only for the purpose of repose, it is liable to be distrained. 1 Esp. Rep. 206. Peake’s Rep. 36, S. C.—Chitty.
[(t) ] 1 Sid. 440.
[10 ] As to this exception in favour of trade, see Gilb. Dist. by Hunt, 39. so cattle and goods of a guest at an inn are not distrainable for rent, but a chariot or horses standing at livery are not exempt. 2 Burr. 1498. Mr. Sergt. Williams, in 2 Saund. 290, n. 7, suggests that it should seem that at this day a court of law would be of opinion that cattle belonging to a drover being put into ground, with the consent of the occupier, to graze only one night on their way to a fair or market, are not liable to the distress of the landlord for rent; and lord Nottingham intimated the same opinion in 2 Vern. 130; and Mr. Christian, in his edition, has the following note of a decision to the same effect:—“Cattle driven to a distant market, and put into land to rest for one night, cannot be distrained for rent by the owner of the land, such protection being absolutely for the public interest.” Tate vs. Gleed, C. P. Hil. 24 Geo. III. Gilb. Dist. by Hunt, 47. It was before held that cattle going to London, and put into a close, with the consent of the landlord and leave of the tenant, to graze for a night, might be distrained by the landlord for rent, (3 Lev. 260. 2 Vent. 50. 2 Lutw. 1161;) but the owner of the cattle was afterwards relieved in equity on the ground of fraudulent connivance and concealment of the demand for rent by the landlord, and he was decreed to pay all costs both of law and equity. 2 Vern. 129. Prec. Ch. 7. Gilb. Dist. by Hunt, 47. As courts of law now take notice of fraud, as well as courts of equity, when it can be fully proved, there would now be the same result at law.
Goods of a principal in the hands of a factor are privileged from distress for rent due from such factor to his landlord, on the ground that the rule of public convenience, out of which the privilege arises, is within the exception of a landlord’s general right to distrain, and therefore that such goods are protected for the benefit of trade. 6 Moore Rep. 243. 3 B. & B. 75, S. C. So goods landed at a wharf and consigned to a broker, as agent of the consignor, for sale, and placed by the broker in the wharfinger’s warehouse for safe custody until an opportunity for selling them should occur, are not distrainable for rent due in respect of the wharf and warehouse, as they were brought to the wharf in the course of trade. 1 Bing. 283. So goods carried to be weighed, even at a private beam, if in the way of trade, are exempt; so is a horse that has carried corn to a mill to be ground, and during the grinding of the corn is tied to the mill-door. Cro. Eliz. 549, 596. Goods in a public fair are exempt from distress, unless for toll due from the owner. 2 Lutw. 1380. Goods in possession of a carrier are also exempt, and this though the carrier be not a public one. 1 Salk. 249.—Chitty.
The American courts have adopted the principle stated in the text, and carried it out in application with great liberality. Thus, goods in an auctioneer’s rooms, or in the store of one who takes merchandise on storage or on commission to sell, have been held to be exempt. Hinely vs. Wyatt, 1 Bay, 102. Brown vs. Simms, 17 Serg. & Rawle, 138. Walker vs. Johnson, 4 McCord, 552. Bevan vs. Crooks, 7 Watts & Serg. 452. So it has been held that the goods of a boarder are not liable to be distrained for rent due by the keeper of the boarding-house. Riddle vs. Welden, 5 Wharton, 9. Stone vs. Matthews, 7 Hill, 428.—Sharswood.
[11 ] As if horses or cattle are sent to agist, they may be immediately distrained by the landlord for rent in arrear, and the owner must seek his remedy by action against the farmer. The principle of this rule extends to public livery-stables, to which if horses and carriages are sent to stand, it is determined that they are distrainable by the landlord as if they were in any public place, (3 Burr. 1498;) so upon the same principle the goods of lodgers or any other person on the premises are liable to be distrained; and to exempt goods from distress on the ground of their being in an inn, they must be within the very precincts of the inn, and not on other premises at a distance belonging to it, (Barnes, 472;) and even within the inn itself the exemption does not extend to a person dwelling therein as a tenant rather than a guest. 1 Bla. Rep. 484.
As to the remedy over by an under tenant or lodger, see the cases cited in 3 Bar. & Cres. 789, in which it was held that where the tenant of premises had underlet a part by deed, and the original landlord distrained for rent upon the under-tenant, the latter could not support assumpsit against his immediate lessor upon an implied promise to indemnify him against the rent payable to the superior landlord.—Chitty.
[(u) ] Cro. Eliz. 549.
[(v) ] Co. Litt. 47.
[12 ] Levant and couchant in this sense means that the cattle must be lying down and rising up on the premises for a night and a day, without pursuit made by the owner of them. Gilb. Dist. by Hunt, 3 edit. 47.—Chitty.
[(w) ] Lutw. 1580.
[13 ] In the case of Poole vs. Longuevill, 2 Saund. 289, the contrary was determined; but that case was overruled in 2 Lutw. 1580; and the result of the cases seems to be, that if a stranger’s beasts escape into another’s land, by default of the owner of the beasts, as by breaking the fences, otherwise sufficient, they may be distrained for rent immediately, without being levant and couchant; but that if they escape there by default of the tenant of the land, or for want of his keeping a sufficient fence, then they cannot be distrained for rent or service of any kind till they have been levant and couchant, nor afterwards by a landlord for rent on a lease, unless the owner of the beasts neglect or refuse, after actual notice, to remove them within a reasonable time; but it is said that such notice is not necessary where the distress is by the lord of the fee or by the grantee of a rent-charge. 2 Lutw. 1573. Co. Litt. 47, b., n. 3. Gilb. Dist. by Hunt, 3d edit. 45. 2 Saund. 290, n. 7, 285, n. 4. See further, Vin. Abr. Fences.—Chitty.
[14 ] A stocking-frame (Willes, 512) or a loom. (4 T. R. 565,) being implements of trade, cannot be distrained; but it must be observed that utensils and implements of trade may be distrained where they are not in actual use and no other sufficient distress can be found on the premises. Co. Litt. 47, a. 4 T. R. 565. And it should seem that if there be reasonable ground for presuming there are not sufficient other goods, the party may distrain implements of trade, and is not bound to sell the other goods first, (6 Price’s Rep. 3. 2 Chitty’s R. 167;) and this rule of exemption does not extend to cases where a distress is given in the nature of an execution by any particular statute, as for poor-rates and the like, (3 Salk. 136. 1 Burr. 579. Lord Raym. 384. 1 Salk. 249, S. C.,) nor where the distress is for damage-feasant. Com. Dig. Distress, B. 4.—Chitty.
[15 ] In actual use, but not otherwise. 4 T. R. 566. Also see 2 Inst. 132, where other authorities are collected. The modern case just cited contains much learning upon what is, and what is not, with reference to the freehold, distrainable.—Chitty.
[(x) ] Stat. 51 Hen. III. st. 4, de districtiones caccania.
[(y) ] 1 Burr. 589.
[(z) ] Ibid. 588.
[16 ] This provision extends to corn in whatever state it may be, whether threshed or unthreshed, (1 Lutw. 214;) and, as observed by Mr. Bradby, inasmuch as this statute directs the distress to be sold unless replevied within five days, perhaps the rule of the ancient common law with respect to the perishable nature of the distress no longer extends in the case of a distress for rent to any thing which is not liable to deterioration within the five days. Bradby on Dist. 213. A sale by a landlord of standing corn, taken as a distress before it is ripe, is void, and the tenant need not replevy, neither can he sue the seller, in an action on the case, for selling such corn before the expiration of five days. 3 B. & A. 470.—Chitty.
[17 ] Co. Litt. 47, b. This rule extends to such things as are essentially part of the household, although for a time removed therefrom,—as a millstone, removed to be picked. Bro. Abr. Distress, pl. 23. 4 T. R. 567. As to what are fixtures, see 2 Chit. Com. Law, 268. Com. Dig. Biens. H. Chitty’s Law of Descents, 256, 257. 4 Moore, 281, 440. 2 D. & R. 1. 5 B. & A. 826. 2 Stark. 403. 2 B. & C. 608. 4 D. & R. 62, S. C. 1 M‘Clelan Rep. Ex. 217.—Chitty.
[18 ] The act applies only to corn and other produce of the land which may become ripe, and are capable of being cut and laid up: therefore trees, shrubs, and plants growing on land which the defendant had demised to the plaintiffs for a term, and which they had converted into a nursery-ground, and planted subsequently to the demise, were held not distrainable by the former for rent. 2 Moore, 491. 8 Taunt. 431. S. C. 3 Moore, 114, S. P. 3 B. & A. 470.—Chitty.
To these heads of things not distrainable may be added all goods in the custody of the law, whether as being already distrained damage-feasant, or taken in execution. In this last case, however, so long as they remain on the premises, the statute 8 Anne, c. 14 gives the landlord a beneficial lien on them, for which see post, p. 417.
The words of the statute 11 Geo. II. c. 19 are, “corn, grass, hops, roots, fruits, or other product growing on the estate demised.” The court of Common Pleas has determined that the general word “product” does not extend beyond things of a similar nature with those before specified, to all of which the process of becoming ripe, and of being cut, gathered, made and laid up when ripe, was incidental. It was held therefore that nursery trees and shrubs could not be distrained. Clark vs. Gaskarth, 8 Taunt. 431.—Coleridge.
[19 ] Mirrour, c. 2, s. 26. See also 7 Rep. 7, a. The distress cannot be made until the day after the rent falls due, unless, indeed, there be any agreement or local custom to the contrary. Gilb. Dist. 56, &c. Hargrave’s Co. Litt. 47, b. n. 6. The distress must not be made after tender of payment of the entire rent due. According to 8 Co. 147, a., Gilb. Dist. by Hunt, 76, &c., 3 Stark. 171, 1 Taunt. 261, tender upon the land before the distress makes the distress tortious; tender after the distress, and before the impounding, makes the detainer, and not the taking, wrongful; tender after impounding makes neither the one nor the other wrongful; but in the case of a distress for rent, upon the equity of the 2 W. and M. c. 5, a sale of the distress after tender of the rent and costs would be illegal.—Chitty.
[(a) ] Co. Litt. 142.
[(b) ] Stat. 8 Anne, c. 14.
[20 ] Although this proviso is in terms confined to the possession of the tenant, yet it has been holden that where the tenant dies before the term expires, and his personal representative continues in possession during the remainder and after the expiration of the term, the landlord may distrain within six calendar months after the end of the term for rent due for the whole term. 1 H. Bla. 465. And in 1 H. Bla. 7, n. a. it was holden that the term was continued by the custom of the country for the purpose of giving a right to the landlord to distrain on the premises in which the waygoing crop remained. See 1 Selw. N. P. 6 ed. 681.—Chitty.
[(c) ] Stat. 8 Anne, c. 14. 11 Geo. II. c. 19.
[21 ] See 11 Geo. II. c. 19, sects. 1, 2, 3. The act is remedial, not penal. 9 Price, 30. It applies to the goods of the tenant only which are fraudulently removed, and not those of a stranger. 5 M. & S. 38. And the rent must be in arrear at the time of the removal. 1 Saund. 284, a. 3 Esp. 15. 2 Saund. 2. n. b; sed vid. 4 Camp. 136.—Chitty.
[22 ] If the lord come to distrain cattle which he sees within his fee, and the tenant, or any person, to prevent the lord from distraining, drive the cattle out of the lord’s fee into some other place, yet he may pursue and take the cattle. Co. Litt. 161, a. But this rule does not hold to distresses damage-feasant, which must be made on the land. Id.—Chitty.
[(d) ] Co. Litt. 161. Comberb. 17.
[(e) ] Stat. 11 Geo. II. c. 19.
[(f) ] 2 Lutw. 1532.
[23 ] It may be as well here to observe that if a landlord come into a house and seize upon some goods as a distress, in the name of all the goods of the house, that will be a good seizure of all. 6 Mod. 215. 9 Vin. Abr. 127. But a fresh distress may be made on the same goods which have been replevied, for subsequent arrears of rent. 1 Taunt. 218. So, if the cattle distrained die in the pound, the loss will fall on the party distrained on, and not upon the distrainor. Burr. 1738. 1 Salk. 248. 11 East, 54.—Chitty.
[(g) ] Cro. Eliz. 13. Stat. 17 Car. II. c. 7. 1 Burr. 590.
[(h) ] 2 Inst. 107.
[(i) ] Bro. Abr. tit. assize, 291; prerogative, 98.
[(j) ] 1 Ventr. 104. Fitzgibb. 85. 4 Burr. 590.
[24 ] And see 2 Stra. 851. 3 Leon. 48. See exceptions, 1 Burr. 582. 1 H. Bla. 13. 9 East, 298. It is no bar to this action that, between the distress and sale of the goods distrained, the parties came to an arrangement respecting the sale, (1 Bing. 401. 4 D. & R. 539. 2 B. & C. 821, S. C.;) and the action is sustainable though there was a tender of the rent before the distress was made. 2 D. & R. 250. Where more rent is distrained for than is due, the remedy is at common law, and is not founded on the 52 Hen. III. c. 4, nor on the 2 W. and M. c. 5, s. 5. Stra. 151. Where no rent is due, the owner of the goods distrained may, in an action of trespass on the case, recover double the value of the goods and full costs. 2 W. and M. sess. 1, c. 5, s. 5.—Chitty.
[(k) ] Co. Litt. 160, 161.
[(l) ] Co. Litt. 47.
[(m) ] Co. Litt. 47.
[25 ] The distrainor cannot tie up cattle impounded; and if he tie a beast and it is strangled, he will be liable in damages. 1 Salk. 248. If the distress be lost by act of God, as by death, the distrainor may distrain again. 11 East, 51. Burr. 1738.—Chitty.
[(n) ] Cro. Jac. 148.
[(o) ] Bro. Abr. tit. distress, 71.
[(p) ] 8 Rep. 41.
[(q) ] Bro. ibid. 12 Mod. 330.
[(r) ] 2 W. and M. c. 5. 8 Anne, c. 14. 4 Geo. II. c. 28. 11 Geo. II. c. 19.
[26 ] A reasonable time after the expiration of the five days is allowed to the landlord for appraising and selling the goods. 4 B. & A. 208; sed vid. 1 H. Bla. 15. The five days are reckoned inclusive of the day of sale; as if the goods are distrained on the first, they must not be sold before the sixth. 1 H. Bla. 13. An action lies on the equity of this act for selling within the five days. Semb. id. If the distrainor continue in possession more than a reasonable time beyond the five days, an action of case or trespass lies on the equity of the statute. 11 East, 395. Stra. 717. 4 B. & A. 208. 1 B. & C. 145. Though the act authorizes a sale after the five days, it does not take away the right to replevy after the five days in case the distress is not sold; but it would be otherwise after a sale. 5 Taunt. 451. 1 Marsh. 135. By the consent of the tenant, the landlord may continue in possession longer than the five days without incurring any liability; and his so continuing in possession will not of itself create any presumption of collusion between him and the tenant to defeat an execution. 7 Price, 690.—Chitty.
[(s) ] 1 Ventr. 37.
[(t) ] Cop. 25.
[(u) ] Cro. Eliz. 590. Cro. Car. 260.
[(w) ] 9 Rep. 79.
[27 ] See, in general, Com. Dig. Accord, Bac. Abr. Accord.
The mere consent of a party to accept a satisfaction, without an actual satisfaction, is not sufficient to discharge the other. The accord and satisfaction must be perfect, complete, and executed; for, were it otherwise, it would be only substituting one cause of action for another, which might go on to any extent. 9 Rep. 79, b. 5 T. R. 141. Satisfaction must be made to the whole of the original demand; and a party will not be discharged upon performance of a satisfaction to part of such demand, the residue remaining unperformed. 1 Taunt. 526. 5 East, 230. The performance of one of two things stipulated for by an accord is nugatory, (lord Raym. 203;) and where it was agreed that the plaintiff and defendant should each deliver up his part of an indenture to be cancelled, and the defendant had delivered up his part, this was held no accord and satisfaction. 3 Lev. 189. The accord and satisfaction must be certain: an accord to pay a less sum on the same or at a subsequent day is not sufficient. 5 East, 230. So an accord that the defendant shall employ workmen in two or three days is bad, (4 Mod. 88;) and performance of an uncertain accord will not aid the defect. 3 Lev. 189. Yelv. 124.
We have already seen (ante, 2 book) how far a contract may be varied, released, or discharged by another contract. A deed before breach cannot be discharged by accord and satisfaction without a deed, (1 Taunt. 428. Com. Dig. Pleader, 2, v. 8;) but after breach accord and satisfaction without deed is a good plea, for there the satisfaction is of the breach, and not of the deed. Com. Dig. Accord, A. 1 & C. 7 East, 150. 1 J. B. Moore, 358, 460. Cro. Eliz. 46. 2 Wils. 86. 6 Rep. 43, b.
The satisfaction must be a reasonable one. Generally speaking, the mere acceptance of a less sum is not in law a satisfaction of a greater sum, (5 East, 230;) and this though an additional security be given. 1 Stra. 426. An agreement between a debtor and creditor that part of a larger sum due should be paid by the debtor, and accepted by the creditor as a satisfaction for the whole, might, under special circumstances, operate as a discharge of the whole; but then the legal effect of such an agreement might be considered to be the same as if the whole debt had been paid, and part had been returned as a gift to the party paying. Per Holroyd, J., 2 B. & C. 481. A debtor’s assignment of all his effects to a trustee, to raise a fund for the payment of a composition to his creditors, is a sufficient satisfaction, (2 T. R. 24:) so if a third person guarantees the payment of the less sum. 11 East, 390. So if a creditor, by his undertaking to accept a composition, induce the debtor to part with his property to his creditors, or induce other creditors to discharge the debtor, to enter into a composition-deed, or deliver up securities to him, such creditor would be bound by such undertaking. 2 Stark. Rep. 407. 2 M. & S. 120. 1 Esp. 236. And where several creditors, with the knowledge of each other, agree on the faith of each others’ undertaking to give time to, or accept a composition from, a debtor, the agreement will be binding on every creditor who is party to it. 3 Camp. 175. 2 M. & S. 122. 16 Ves. 374; and see further, as to composition with creditors, 3 Chitty’s Com. L. 687 to 698. It should be here also observed that when a bond or other security under seal has been given and accepted in satisfaction of a simple contract-debt, the latter is merged in such higher security, and no action can be supported for the non-performance of the simple contract, (Cro. Car. 415. Bac. Abr. Debt, G.,) unless indeed such new security be avoid; but the mere taking of an instrument of a higher order as a collateral or additional security does not preclude the debtor from suing on the original contract, and this though judgment be obtained on such security. 2 Leon. 110. 6 T. R. 176, 177. Payment and acceptance of a part of a debt before the day it falls due, or at a place where the whole debt was not payable, in satisfaction of the whole, is a good satisfaction, (Co. Litt. 212, b.;) and so if the debtor give a chose in possession for a chose in action, (2 T. R. 24,) as the gift of a horse, or other property in specie. Co. Litt. 212, b. The mere fulfilment of an act which a party is bound in law to do is no satisfaction. Per Grose, J., 5 East, 302. A release of an equity of redemption is no satisfaction. 2 Wils. 86. Conferring a benefit to a third person at the debtor’s request is sufficient. See Skin. Rep. 391.
The satisfaction should proceed from the party who wishes to avail himself of it; for when it proceeds entirely from a stranger it will be a nullity. See 5 East, 294. 1 Smith, 515. Cro. Eliz. 541.
Accord and satisfaction by copartner is a bar to any action against the other partners. 9 Rep. 79, b. So the acceptance of satisfaction from a joint tort-feasor discharges the other wrong-doers, (Sembl. 3 Taunt. 117;) and accord and satisfaction to one of several co-plaintiffs will operate as a discharge from all. See 13 Edw. IV. 6. 5 Co. 117, b.—Chitty.
[28 ] By several statutes, (particularly 11 Geo. II. c. 19, in case of irregularity in the method of distraining, and 11 & 12 Vict. c. 44, in case of mistakes committed by justices of the peace,) a tender of amends to the party injured is a bar to the action, if the party thinks proper to accept such tender. If the party injured does not accept the amends tendered, and the jury, on the trial of the action, think the sum offered sufficient, their verdict must be for the defendant. By the Common Law Procedure Act, 1852, s. 70, the defendant in all actions (except actions for assault and battery, false imprisonment, libel, slander, malicious arrest or prosecution, criminal conversation, or debauchery of the plaintiff’s daughter or servant) may pay into court a sum of money by way of compensation or amends. And, by statute 6 & 7 Vict. c. 96, s. 2, in action for a libel contained in any newspaper or periodical publication, the defendant may plead that it was inserted without malice or gross negligence, and that an apology had been offered to be published. The defendant may with the plea pay money into court as amends. By s. 4, the offer of apology is admissible in evidence in mitigation of damages.—Stewart.
Where, by act of assembly, a penalty of fifty pounds was imposed upon any magistrate or minister marrying a minor without the consent of parents or guardians, and an act of assembly provided also for notice of any suit against a magistrate in order that he might have the opportunity to tender amends, it was held that no sum of money short of the penalty could be a sufficient amends. In demands founded on torts and sounding in damages, any sum of money may be treated as amends, because the standard of damage is uncertain, depending on a variety of circumstances, and a party is as likely to recover on trial less than the sum tendered as to recover more. But for a pecuniary debt, fixed and certain, a less sum of money cannot be an equivalent. Thus, payment of a less sum of money can never be admitted as an accord and satisfaction of a greater sum due. But payment of any sum accepted as satisfaction of damages for a personal injury is sufficient. Lowrie vs. Verner, 3 Watts, 317.—Sharswood.
[(x) ] Whart. Angl. Sacr. i. 772. Nicols. Scot. Hist. Libr. ch. 1, prope finem.
[(y) ] Brownl. 55. 1 Freem. 410.
[(z) ] 1 Roll. Abr. 242. 1 Lord Raym. 115.
[29 ] And where a party’s title to land is referred with his consent, the award is conclusive evidence, and binding on him and his heirs and assigns as to such title. 3 East, 15.—Chitty.
[(a) ] Append. No. III. 6.
[30 ] If the parties intend to refer all disputes, the terms of the reference should be, “of all matters in difference between the parties.” When the reference is only intended to be of the matter in a particular cause, it should be, “of all matters in difference in the cause.” 3 T. R. 628. A time should in all cases be mentioned within which the award is to be made; but, if no time be mentioned, the award should be made in a reasonable time. 2 Keb. 10, 20. 3 M. & S. 145. It is usual to vest in the arbitrators a power of enlarging the time for making their award; but it should be stipulated that this enlargement be made a rule of court. It is best to provide that the arbitration is not to be defeated by the death of either party. 7 Taunt. 571. 2 B. & A. 394. 3 D. & R. 184, 608. In some cases the court will amend an order of reference. 5 Moore, 167.
A court of chancery will not decree a specific performance, (19 Ves. 431. 6 Ves. 815,) and no action lies for not appointing an arbitrator, (2 B. & P. 13;) but if a party has agreed not to revoke, or has covenanted to perform an award, and the award be made, he will be liable to an action for a breach of the agreement or covenant if he revoke or refuse to perform the award, (see 5 B. & A. 507. 1 D. & R. 106. 2 Chit. R. 316. 5 East, 266; and see 4 B. & C. 103;) and an attachment for a contempt of court sometimes lies, where the submission is a rule of court. Crompt. Prac. 262. 1 Stra. 593. 7 East, 607.
With respect to the revocation of the arbitrator’s authority, it is a rule of law that every species of authority, being a delegated power, although by express words made irrevocable, is nevertheless in general revocable. See 8 Co. 82. A submission to arbitration may be revoked by the act of God, by operation of law, or by the act of the parties.
The death of either or any of the parties before the award is delivered in general vacates the submission, unless it contain a stipulation to the contrary, (see 1 Marsh. 366. 7 Taunt. 571. 1 Moore, 287, S. C. 2 B. & A. 394;) but where all matters in difference in a cause are referred by order of nisi prius to arbitration, the death of one of the parties at any time before award made is a revocation of the arbitrator’s authority and the court will set aside an award made after his death; or, in other words, it should seem, if the cause of action is referred, the death abates the action, but not so if other matters besides the cause of action are referred. 3 D. & R. 608. 2 B. & A. 394.
If a feme-sole submit to arbitration, and marry before the award is delivered, such marriage is in effect a revocation, without notice to the arbitrators, (2 Keb. 865. Jones, 388. Roll. Abr. 331;) but the husband and wife may be sued on their bond for such revoking. 5 East, 266.
Bankruptcy of one of the parties is no revocation. 2 Chit. Rep. 43. 4 B. & A. 250.
The death of the arbitrators, or one of them, will defeat the reference, unless there be a clause in the submission to the contrary, (see 4 Moore, 3;) so if the arbitrators do not make the award within the limited time, or they disagree, or refuse to act or intermeddle any further. 1 Roll. Abr. 261. 2 Saund. 129. Tidd, 8 ed. 877.
The parties themselves, as we have just seen, may revoke the arbitrators’ authority before the award is made: the revocation must follow the nature of the submission: if the latter be by parol, so may the revocation. 2 Keb. 64. If the submission be by deed, so must the revocation. 8 Co. 72; and see T. Jones, 134. Notice of the revocation by the act of the parties must be given to the arbitrators in order to render it effectual. Roll. Abr. 331. Vin. Abr. Authority, 13; and see 5 B. & A. 507.
The law relating to the proceedings during the conduct of the arbitration, and the duties of arbitrators and umpires, will be found in 3 Chit. Com. Law, 650 to 656, and Caldw. on Arb. 42, 45, &c. As to the power, &c. of awarding costs, see Tidd, 8 ed. 883 to 887. As to when a court of equity will compel an arbitrator to proceed, see 1 Swanst. 40. As to the general requisites of an award and how it will be construed, see 3 Chit. Com. Law, 656 to 660. Tidd, 8 ed. 882. For the remedy to compel the performance of an award, see Tidd, Prac. 8 ed. 887 to 894. 3 Chit. Com. Law, 600 to 665; and for the relief against an improper award, see 3 Chit. Com. Law, 665 to 668. Tidd, Prac. 8 ed. 894 to 898.—Chitty.
[31 ] The Common Law Procedure Act, 1854, it may be observed, contains several very important provisions with reference to arbitrations by consent of parties. Some more particular mention of these enactments may not be considered inopportune.
To prevent an arbitration coming to an end without an award being made, it is provided that if in any arbitration the document authorizing the reference provides that the reference shall be to a single arbitrator, and the parties do not concur in the appointment of an arbitrator; or if any arbitrator refuses to act, or becomes incapable of acting, or dies, and the parties do not concur in appointing a new one; or if, where the parties or two arbitrators are at liberty to appoint an umpire, such parties or arbitrators do not appoint an umpire; or if any umpire refuses to act, or becomes incapable of acting, or dies, and the parties or arbitrators do not appoint a new umpire,—in every such instance any party may serve the other party or the arbitrators, as the case may be, with notice to appoint an arbitrator or umpire; and if within seven days no arbitrator or umpire is appointed, any judge of any of the superior courts may appoint the arbitrator or umpire.
Nor can a reference be rendered nugatory by the failure of one party to appoint an arbitrator; for when a reference is to two arbitrators, one to be appointed by each party, and one party fails to appoint an arbitrator for seven days after the other party has done so and has served the party thus failing to appoint with a notice to appoint his arbitrator, the party who has appointed may appoint his own arbitrator to act as sole arbitrator, and an award made by such sole arbitrator will then be binding on both parties. The court or a judge may, nevertheless, revoke the appointment on such terms as may seem just.
Formerly it was required that express authority to appoint an umpire should be given to arbitrators; otherwise such an appointment could not be made by them. Now, however, when a reference is to two arbitrators, and the document authorizing it does not show that it was intended that there should not be an umpire or provide otherwise for the appointment of an umpire, the two arbitrators may appoint an umpire. They may be called upon to make the appointment by notice from any of the parties to the reference; and the appointment must be made within seven days; otherwise an umpire may be appointed by a judge.
An arbitrator is also required to make his award within three months after he has been appointed and has entered on the reference, or been called upon by a notice in writing from a party to the reference to do so; but the parties, by consent in writing or the court, may enlarge the time for the arbitrator making his award.
That delay may be avoided, however, when arbitrators cannot agree, it is provided that any umpire, when appointed, may enter on the reference in lieu of the arbitrators, if the latter have allowed their time to expire without making an award, or have delivered to any party, or to the umpire himself, a notice stating that they cannot agree. Instead of deciding the dispute, an arbitrator may state his award in the form of a special case for the opinion of the court, the nature and object of which proceeding shall be explained afterwards.
Soon after the statute 9 & 10 W. III. c. 15, it was decided that the right to real property could not pass by a mere award. 1 Roll. Abr. 242. 1 Ld. Raym. 115. This subtlety in point of form (for it was soon reduced to nothing else) had its rise from feudal principles; for, if this had been permitted, the land, it was said, might be aliened collusively without the consent of the superior. If, therefore, an arbitrator awarded a conveyance or a release of land, and the party ordered to convey refused to do so, the court of chancery must have been resorted to in order to enforce a specific performance of the award. This proceeding is no longer necessary, however; for an award directing the possession of land to be delivered may now be enforced summarily, like a judgment in ejectment. Com. Law Proc. Act, 1854.
An award, as we have seen, is only a final judgment on the matters submitted, when the decision of the arbitrator is properly made. An award may and will be set aside by the court, in the exercise of the summary jurisdiction conferred upon it by the statute before referred to, when the arbitrator has not pursued the submission, or has in any respect exceeded his authority; when the award itself is uncertain or ambiguous; when the proceedings in the arbitration have been irregular; when the arbitrator has misconducted himself; or when the award has been procured by undue means. But these constitute but a few of the instances in which an award will be set aside; for it would be quite out of place here to enter into any detail of the circumstances which will avoid an award.—Kerr.