Act of January 12, 1818-January 1, 1820. R. C. ch. 113.

term of years, at will or otherwise, shall, at any time hereafter, be liable to be taken by virtue of any writ of execution, or on any pretence whatsoever, unless the party, so taking the same, shall, before removal of the goods from off such premises, pay or tender to the landlord or lessor (e) thereof, or his agent, all the money or tobacco due for the rent of the said premises, at the time of taking(f) such goods or chattels in execution. 8 Ann. c. 14; May 1730, c. 9, § 6, 4 Stat. Larg. 289; Oct. 1748, c. 15, § 5, 6 Stat. Larg. 2; 1792, c. 89, R. C.

12. 8. Provided nevertheless, That such rent arrear do not amount to more than one year's rent; and, if more be due, then the party suing out such execution, paying or tendering to such landlord, or his agent, one year's rent, may proceed to execute his judgment; and the sheriff or officer serving the same, is hereby empowered and required to levy and pay to the plaintiff, as well the money or tobacco so paid for rent, as the execution money. lbid. [Where any goods or chattels, lying or being in or upon any leased premises, whereon any rent shall be reserved, accruing and unpaid, although the same be not due, shall be taken by virtue of any writ of execution, or on any pretence whatsoever, if the tenant shall not, at the time of levying such execution, tender to the landlord, or lessor, or his agent, or to the officer levying such execution, a bond with one or more sufficient securities, conditioned for the payment of the rent, at the time it shall become due, the party, suing out such execution, may proceed to execute his judgment; and the sheriff, or of ficer serving the same, shall proceed to sell, in the first place, so much of the

(e) There must be an existing tenancy at the time of the execution. The object of this act is to make the landlord amends for taking away his power of distress; if there be no existing tenancy, he has no power to distrain, and therefore cannot avail himself of this provision. Hodgson et al. v. Gascoigne, 5 B. & A. 88.

It is the duty of the landlord to demand the rent; otherwise, the sheriff will not be affected by the fact of its being due, he having no knowledge thereof. Waring v. Dewberry, 1 Str. 97, and 214; Alexander v. Mahon, 11 Johns. R. 185; see Harrison v. Barry, sheriff, 7 Price's E. Rep. 690.

No specific notice, however, is required from the landlord. The notice to the sheriff is only for the purpose of establishing beyond doubt, his knowledge of the landlord's claim. If that knowledge can, by any other means, be brought home to him, he will be liable. Andrews v. Dixon, 3 Barn. & Ald. 645. The sheriff is bound to retain one year's rent, if so much be due, out of the proceeds of the tenant's goods taken in execution, provided he has notice of the landlord's claim, at any time while the goods, or their proceeds remain in his hands, and the court, on motion, will order the same to be paid to the landlord, even where notice was given after the removal of the goods from the premises. Arnitt v. Garnett, 3 Barn. & Ald. 440; Beckman v. Lansing, 3 Wend. 446; see Byrd v. Cocke, Wash. 232, in which it was held, that case for consequential damages, was the proper form of action against the sheriff.

An officer takes under execution, and removes goods of lessee, without paying the rent in arrear due to the landlord: Held, in an action by the landlord against the officer for so doing, not the amount of the rent arrear, but the value of the goods is the just measure of damages. Crawford et al. v. Jarrett's adm'r, 2 Leigh, 630; Thurgood v. Richardson et al. 4 C. & P. 481; see Calvert v. Joliffe, 2 Barn. & Adolp. 418; Duck v. Bradoyll, 13 Price's E. R. 455.

The sheriff is not bound to take the goods in execution, unless the party at whose suit the execution is sued out, shall, before the removal of such goods, pay the landlord a year's rent; until then, the sheriff is not authorized to remove the goods, and by removing them before, he subjects himself to an action by the landlord. Calvert v. Joliffe, 2 Barn. & Adolp. 418. But a sheriff is not liable to a landlord for removing the goods of an under tenant from demised premises, leaving the rent unpaid, though notice of such rent being due is duly served. Brown v. Fay, 6 Wend. 392; Bennet's case, 2 Stra. 787; the statute extends only to the immediate landlord, and 7 Bing. 428.

(f) The time of taking the goods, fixes the amount of rent due, for which the landlord can demand payment. Hoskins v. Knight, 1 Mau. & Selw. 245; Gwilliam v. Barker, 1 Price's E. Rep. 274; see Trappan v. Morie, 18 Johns. R. 1; Hazard v. Raymond, 2 Johns. R. 478; Binns v. Hudson, Binney, 505; West's adm'rs v. Sink, 2 Yeates's R. 274.

Act of January 12, 1818-January 1, 1820. R. C. ch. 113.

goods and chattels as shall be necessary for payment of such rent, on a credit corresponding with the time of payment thereof, the purchasers giving good security for such payment, and shall assign such bonds to the landlord; and he shall proceed as to the residue of the said goods and chattels, in like manner as in other cases of executions: Provided, That nothing in this act contained shall be construed to allow to the landlord more than one year's rent, in any case. Feb. 15-April 1, 1823, c. 29, § 7.]

13. 17. In case any lessee for life or lives, term of years, at will, or otherwise, of messuages, lands or tenements, upon the demise whereof any rents are or shall be reserved, or made payable, shall, at any time, fraudulently or clandestinely,(g) convey or carry off or from such demised premises, his goods or chattels, with intent to prevent the landlord or lessor from distraining(h) the same for arrears of rent so reserved, it shall be lawful for such lessor or landlord, or any person or persons by him for that purpose lawfully empowered, (d) within ten days next after such conveying away or carrying off such goods and chattels, to take and seize the same wherever they shall be found, (c) as a distress for the arrears of such rent, and the same to sell in the like manner as if they actually had been distrained by such lessor or landlord in and upon the demised premises. (c) 8 Ann. c. 14; 1730, c. 9, 4 Stat. Larg. 290; 1748, c. 15, 6 Stat. Larg. 11; 1792, c. 89, R. C.

14. § 18. Provided, always, That no goods or chattels so carried off, and bona fide sold for valuable consideration, before such seizure made, shall be afterwards liable to be so taken or seized for any arrears of rent. Ibid. [It shall be lawful for any lessor, or landlord, or any person or persons by him, for that purpose, lawfully empowered, in all cases where rent is due, and in arrear, to distrain(5) any(1) property which the tenant may have fraudulently conveyed away, or permitted to be carried from the premises, at any time within thirty days after the same shall have been removed from the tene

(g) (h) Eyre, C. J. held, in Watson v. Maine, 3 Esp. R. 15, 16, that in order to justify the landlord in seizing goods removed off premises, as a distress for rent, the removal must have taken place after the rent became due, and must have been secret, and not open in the face of day, as in such case, the removal could not be said to be clandestine, within the meaning of the statute. See Furneaux v. Fotherby et al. 4 Camp. R. 136; and Serj. Williams's note (2) to Poole v. Longuevill, 2 Saund. 284. The word clandestinely was left out of the act of Feb. 15, 1823, c. 29; see post. No. 14. A distress for rent cannot be made off the demised premises, and therefore an attachment against an absconding debtor, levied on property found off the premises, will take precedence of it. Mosby v. Leeds, 3 Call, 439; see Grace v. Shively et al. 12 Serg. & Raw. 217; Opperman v. Smith, 4 D. & R. 33; Parry v. Duncan, 7 Bing. 243. A landlord cannot distrain under 11 Geo. 2, c. 19, § 1, goods fraudulently and clandestinely removed from the tenant's premises before the rent becomes due. Rand v. Vaughan et al. (E. T. 1835,) 1 Bing. N. C. 767, 27 E. C. L. 568.

(d) 'Tis advisable that the authority be evidenced in writing.

(c) See Rich v. Woolley et al. 7 Bing. 651. An action for money had and received

cannot be maintained by a landlord to recover his year's rent, against the sheriff who has sold his tenant's goods under an execution. Green et al. v. Austin, 3 Campb. 260.

(5) See Rich v. Woolley et al. 7 Bing. 651. This section gives the landlord the same authority over the premises to which goods shall have been clandestinely removed, as over the premises of the tenant, and on these premises he could have no right to break open a lock, &c.: the 7th section gives, &c., [not incorporated in our law]. If the outer door be open, an inner door may be broken to distrain. Pr. Ld. Hardwicke, in Browning v. Dann et al. Cas. Temp. Talb. 167.

(1) Of the goods of the tenant. Thornton v. Adams et al. 5 Mau. & Selw. 38.

If the landlord should distrain or seize property as being fraudulently removed from the premises, and should not shew that it was so fraudulently removed, nor that the distress was levied within the time allowed by law, nor that the property was ever on the premises demised, yet, the tenant should not seek his redress in a court of equity. If the landlord has proceeded illegally, he is responsible for damages at law, at the discretion of a jury, according to the circumstances. Davis v. Payne's adm'r, 4 Rand. 332; Postman v. Harrell et al. 6 Car. & Payne, 225.

Act of January 12, 1818-January 1, 1820. R. C. ch. 113.

ment;(4) and the same to sell for arrears of rent, in the same manner as if the property had actually been distrained on the premises: Provided, That the property shall not have been sold for a bona fide consideration, before it shall have been distrained.(2) 11 Geo. 2, c. 19, § 1, 2; Feb. 15—April 1, 1823, c. 29, § 2.] Sup. 254.

15. § 31. It shall not be lawful for any person taking any distress to drive or remove the same out of the county where such distress was taken; and whosoever doth so shall be amerced at the discretion of the jury; moreover, distresses shall be reasonable and not too great,(a) and he that taketh great and unreasonable distresses shall be amerced for the excess of such distress. 52 Hen. 3, c. 4; 1792, c. 89, R. C.

16. § 1. Where any goods and chattelst shall be distrainedt for any rent, reserved and due upon any demise, lease or contract whatsoever, (3) and the tenant (6) or owner of the goods so distrained shall not, within ten days(i) after such distress taken, and notice thereof, and the cause of such taking, left at the chief mansion house, or other most notorious place on the premises charged with the rent distrained for,(j) replevy the same, by sufficient security given to the sheriff or officer(k) serving such distress, to pay the money or tobacco, and all costs, with lawful interest() for the same, at the end of three months; in such case such sheriff or other officer(k) shall and may sell

(a) In an action for an excessive distress, the question is, what the goods seized would have sold for at a broker's sale? If it be excessive, the plaintiff is entitled to recover the fair value of them. Wells v. Moody et al. 7 Car. & P. 59.

What distrainable? See Simpson v. Hartopp, Willes's R. 512.

One of several co-heirs in gavelkind, may distrain for rent due to him and his companions, without an actual authority from his companions. And may avow in his own right, with cognizance as bailiff of the other co-heirs, without averring an authority from them to distrain. Quare, as to the power of the co-heirs to countermand such implied authority? Leigh v. Shepherd, 2 Brod. & Bing. 465.

One joint-tenant may, without the assent of his fellows, appoint a bailiff to distrain for rent due to all the joint-tenants; having authority to distrain for himself and others, it is the same thing whether he distrain by himself or by a bailiff. Robinson v. Hofman, 4 Bing. 562.

(3) To authorize a distress, there must be a fixed rent agreed on; if there be no fixed rent agreed on, the owner must resort to an action for use and occupation. Dunk v. Hunter, 5 Barn. & Ald. 332; Hegan v. Johnson, 2 Taunt. 148; Regnart v. Porter et al. 7 Bing. 451; Valentine v. Jackson, 9 Wend. 302.

Distress cannot be made after dark. Aldenburgh v. People, 6 Car. & Pay. 212, 25 E. C. L. R. 361.

(6) A bond executed by the original lessee, though he be not the tenant in actual possession, nor the owner of the property distrained-if he hath assigned his lease to a third person, without the privity or assent of the lessor-is good under this law. Ferguson et al. v. Moore, 2 Wash. [54].

(i) I cannot think that the slat. of Wm. and Mar. takes away the right to replevy after the five days. After a sale, I grant the purchaser has a right to take the goods and retain them, but until a sale, I think it is competent to the plaintiff to replevy the goods. Gibbs, C. J. the other judges concurring. Jacob v. King, 5 Taunt. 451; 1 Marshall, 135. The Virginia act varies from Wm. and Mar. merely as to the time.

(j) Personal notice is sufficient to warrant a sale. The intent of the act was only that the party should have notice, which is performed by this means, better than if it had been left at the house or other most notorious place. Walter v. Rumbal, 1 Ld. Ray. 53, 54.

(k) To authorize the taking a replevy bond, or the sale of the distrained effects, the landlord must pursue the provisions of this act: the distress must be under the superintendence of an officer duly qualified and authorized. If it does not appear that the statutory remedy was pursued, the landlord cannot avail himself of the summary remedy by motion on the bond, or a sale of the effects. Smith v. Ambler et al. 1 Munf. 596, 598; Ferguson et al. v. Moore, 2 Wash. 57.

This bond should be returned to the court to which the officer levying the distress belongs, or to the court of that county in which the land lies. Ferguson et al. v. Moore, 2 Wash. 54.

Act of January 12, 1818-January 1, 1820. R. C. ch. 113.

the goods and chattels so distrained for, by public auction, to the highest bidder, either for money or tobacco, according as the rent reserved shall be due and payable, to be paid at the end of three months; and shall take bond of the buyer or buyers, with one or more sufficient securities, to pay the same accordingly, with interest, to the landlord for whom the distress was made. May-Dec. 10, 1730, c. 9, 4 Stat. Larg. 288; Oct. 1784, c. 15, 6 Stat. Larg. 1; Nov. 1792, c. 89, R. C. From 2 Will. & Mar. ses. 1, c. 5, § 2. [Interest shall hereafter be allowed on rent in arrear from the period or periods at which the whole or any portion thereof shall become due. Act March 2, 1827, Ses. Acts 1826-7, č. 27, § 3; Sup. R. C. c. 194, p. 256.]

17. § 2. All and every bond and bonds, so taken in pursuance of this act, shall mention that the same was or were entered into, for goods or other estate distrained for rent, and restored to the debtor, or sold to the obligor, (as the case shall be,) and, before the expiration of the said three months, shall be delivered to the landlord for whom distress was made. And if the money or tobacco shall not be paid, according to the condition of such bond, it shall be lawful, and full power and authority is hereby given to the justices of the court where such bond shall be lodged, upon motion of the party to whom the same is payable, to award execution thereupon with costs: Provided, The obligors (b) have ten days notice of such motion; and, upon such execution, the sheriff or officer shall not take any sureties for payment of the money or tobacco at a further day, but shall levy the same immediately. And, for the better direction of such sheriff or officer, the clerk shall endorse upon the back of every such execution, that "no security is to be taken." Oct. 1784, c. 15, 6 Stat. Larg. 1; 1792, c. 89. [When any sheriff, constable or other officer, shall make sale of any goods or chattels distrained for rent, he shall not take bond from any purchaser or purchasers, or give any credit for a sum less than ten dollars; but for all sums less than ten dollars, owing by such pur

Constables have always been in the habit of levying distresses and taking replevy bonds; with what propriety may be doubted when the sum exceeds the ordinary jurisdiction of a justice of the peace. Per Tucker's Com. B. 3, ch. 1, 2 vol. 13.

(2) This bond should not be taken so as to include interest from the time the rent became due, but from the date of the bond; the rent and the costs of distress added together, constitute the principal. If the bond be taken, including back interest, such interest may be deducted, and judgment entered for the correct sum. Williams v. Howard, 3 Munf. 277. Though a bond, including interest from the time the rent became due, may not be a good statutory bond, it will support an action of debt. Early v. Owen, 6 Munf. 319; see Lansing v. Rattoone, 6 Johns. R. 43.

Interest ought not to be given, as of course, in actions for the recovery of rent in arrear. Cooke v. Wise, 3 H. & M. 467; Newton v. Wilson, Ib. 470, 479-500; Skipwith v. Clinch, 2 Call, 257. But it may be given under circumstances, to be judged of by the jury; and if the jury find a general verdict, allowing interest, it shall be intended that sufficient circumstances existed to justify such allowance: but if those circum

stances be stated in a special verdict, the court will judge of their sufficiency. Roane, J. was rather of opinion, that sufficient circumstances, or not, was a question exclusively for the jury. If there always were effects on the premises charged, liable to distress, sufficient to have satisfied the rent, which was not paid, though demanded by the landlord, interest ought not to be given. Dow v. Adams's adm'rs, 5 Munf. 21.

Interest cannot be recovered as of course, in actions for the recovery of rent, but may be given, under circumstances, to be judged of by the jury. This point the court deemed settled by the cases, particularly Dow v. Adams's adm'rs, 5 Munf. 21, which the court sanctioned. Mickie v. Lawrence, ex or of Wood, 5 Rand. 571; see the opinion of Roane, J. in the cases cited from 3 H. & M. p. 492-499; and Obermyer v. Nichols, 6 Binney, 159.

To constitute this a statutory bond 'tis essential that the condition thereof should state that the property was restored, &c., to the debtor. Glassford et al. v. Hackett, ex'or, &c., 3 Call, 193.

(b) A motion cannot be sustained against executors, &c. Glassford et al. v. Hackett, ex'or, &c., 3 Call, 193.

Act of January 12, 1818-January 1, 1820. R. C. ch. 113.

chaser or purchasers, he shall require payment to be made in cash. March 3, 1835, Ses. Acts 1834-5, c. 6, § 3.]

Act of

18. § 3. Provided, always, That when distress shall be made for tobacco, between the last day of September and the last day of December, in any year, and the goods distrained shall not be replevied as aforesaid, such goods shall be sold and security taken for paying the tobacco by the first day of January then next ensuing; and the bonds, taken for the same and costs of seizure and sale, shall be by the officer delivered to the landlord for whom distress was made; which last mentioned bonds shall have the like force, and may be proceeded upon in the same manner as any other bond, directed to be taken by this act. Ibid.

19. § 12. Whenever any distress shall be made for rent reserved in wheat, corn, or any thing other than money, it shall be lawful for the landlord or lessor to apply to the court of the county or corporation, or to the superior court of law for the county in which the leased tenement may lie, to ascertain the value in money of the rent in arrear so reserved, and to order the property so distrained, or so much thereof as may be necessary, to be sold for the satisfaction of such rent. And the court, to which such application shall be made, ten days previous notice thereof having been given to the tenant, or, in case of his absence from the county, being set up at some conspicuous place on the tenement, shall proceed to ascertain the value in money of the rent in arrear so reserved, either by their own judgment, or, if required by either party, by the verdict of a jury, summoned and impannelled at their bar for that purpose, without the formality of pleading; and, having so ascertained the value, shall order a sale of the property so distrained, and award costs to the landlord or lessor. In pursuance of such order, the sheriff or serjeant of the court, or the officer having distrained the property, shall proceed to advertise and sell, under the rules and regulations prescribed for the sale of property taken under execution, the property distrained as aforesaid, or so much thereof as shall be necessary to raise the amount of money and costs aforesaid; and shall return the residue thereof to the owner. The sheriff or other officer receiving the money and costs aforesaid, or any part thereof, under such order of court, shall pay over the same to the landlord or lessor, and, on failure, may be proceeded against for its recovery, and subjected to costs and damages, in the same manner and to the extent provided in the case of a sheriff failing to pay money received by him on an execution returned satisfied. It shall be lawful, however, for any such tenant, at any time after the value of the rent shall be ascertained as aforesaid, and before the sale shall have been made, to execute a replevy bond, with sufficient security, for the amount of the rent so ascertained, and costs, payable with interest at the end of three months from the date thereof. Such bond shall be taken in other respects in the same manner, shall have the same force and effect, and shall be in the same manner recoverable, as other replevy bonds hereby authorized in cases of distress for rent. Feb. 10, 1816, c. 15, § 4. [Whenever any goods and chattels shall be distrained or attached for rent, arrear or accruing, under any demise, lease, or contract whatsoever, whereby such rent is reserved, or is payable in a share of the crop, stock or other product of the demised or leased premises, whether such premises be let with or without stock or other personal property, the same proceedings shall be had as are prescribed by the twelfth and thirteenth sections of the act of twelfth January eighteen hundred and eighteen. [This section and post. No. 26.] Act of March 2, 1827, Ses. Acts 1826-7, c. 27, § 1, p. 25; Sup. R. C. c. 194, p. 256.]

20. § 4. Any officer who shall levy distress for rent, shall be entitled, in case the property be replevied, to the same commission, as in the case of a