DISCUSSION, civil law. A proceeding, on the part of a surety, by
which. the property of the principal debtor is made liable before resort can be
had to the sureties; this is called the benefit of discussion. This is the law
in Louisiana. Civ. Code of Lo. art. 3014 to 3020. See Domat, 3, 4, 1 to 4; Burge
on Sur. 329, 343, 348; 5 Toull. p. 544 7 Toull. p. 93; 2 Bouv. Inst. n.
DISFRANCHISEMENT. The act of depriving a member of a corporation of
his right as such, by expulsion. 1 Bouv. Inst. n. 192.
2. It differs from amotion, (q. v.) which is applicable to the removal of an
officer from office, leaving him his rights as a member. Willc. on Corp. n. 708;
Ang. & Ames on Corp. 237; and see Expulsion.
DISGRACE. Ignominy, shame, dishonor. No witness is required to
disgrace himself. 13 How. St. Tr. 17, 334; 16 How. St. Tr. 161. Vide
Crimination; To Degrade.
DISHERISON. Disinheritance; depriving one of an inheritance. Obsolete.
DISHERITOR. One who disinherits, or puts another out of his freehold.
TO DISHONOR, contr. This term is applied to the nonfulfilment of
commercial engagements. To dishonor a bill of exchange, or a promissory note, is
to refuse or neglect to pay it at maturity.
2. The holder is bound to give notice to the parties to such instrument of
its dishonor, and his laches will discharge the indorsers. Chit. on Bills, 394,
395, 256 to 278.
DISINHERISON, civil law. The act of depriving a forced heir of the
inheritance which the law gives him.
2. In Louisiana, forced heirs may be deprived of their legitime, or legal
portion, and of the seisin granted them by law, for just cause. The disinherison
must be made in proper form, by name and expressly, and for a just cause,
otherwise it is null.
3. The just causes for which parents may disinherit their children, are ten
in number. 1. If the child has raised his or her hand to strike the parent, or
if he or she has actually struck the parent; but a mere threat is not
sufficient. 2. If the child has been guilty, towards a parent, of cruelty, of a
crime, or grievous injury. 3. If the child has attempted to take away the life
of either parent. 4. If the child has accused either parent of any capital
crime, except, however, that of high treason. 5. If the child has refused
sustenance to a parent, having the means to afford it. 6. If the child has
neglected to take care of a parent, become insane. 7. If a child has refused to
ransom them when detained in captivity. 8. If the child used any act of violence
or coercion to hinder a parent from making a will. 9. If the child has refused
to become security for a parent, having the means, in order to take him out of
prison. 10. If the son. or daughter, being a minor, marries without the consent
of his or her parents. Civil Code, art. 1609-1613.
4. The ascendants may disinherit their Iegitimate decendants, coming to their
succession for the first nine causes above expressed, when the, acts of
ingratitude, there mentioned, have been committed towards them, instead of
towards their parents; but they cannot disinherit their descendants for the last
cause. Art. 1614.
5. Legitimate children, dying without issue, and leaving a parent,. cannot
disinherit him or her, unless for the seven following causes, to wit: 1. If the
parent has accused the child of a capital crime, except, however, the crime of
high treason. 2. If the parent has attempted to take the child's life. 3. If the
parent has, by any violence or force, hindered the child from making a will. 4.
If the parent has refused sustenance to the child in necessity, having the means
of affording it. 5. If the parent has neglected to take care of the child when
in a state of insanity. 6. If the parent has neglected to ransom the child when
in captivity. 7. If the father or mother have attempted the life the one of the
other, in which case the child or descendant, making a will, may disinherit the
one who has attempted the life of the other. Art. 1615.
6. The testator must express in the will for what reason he disinherited his
forced heirs, or any of them, and the other heirs of the testator are moreover
obliged to prove the facts on which the disinherison is founded, otherwise it is
null. Art. 1616. Vide Nov 115 Ayl. Pand. B. 2, t. 29; Swinb. art 7, 22.
DISINHERITANCE. The act by which a person deprives his heir of an
inheritance, who, without such act, would inherit.
2. By the common law, any one may give his estate to a stranger, and thereby
disinherit his heir apparent. Coop. Justin. 495. 7 East, Rep. 106.
DISINTERESTED WITNESS. One who has no interest in the cause or matter
in is-sue, and who is lawfully competent to testify.
2. In North Carolina and Tennessee, wills to pass lands must be attested by
disinterested witnesses. See Attesting Witness; Competent Witness; Credible
Witness; Respectable Witness, and Witness.
DISJUNCTIVE TERM. One which is placed between two contraries, by the
affirming of one of which, the other is taken away: it is usually expressed by
the word or. Vide 3 Ves. 450; 7 Ves. 454; 2 Rop. Leg. 290.; 1 P. Wms. 433; 2
Cox, Rep. 213; 2 P. Wms. 283 2 Atk. 643; 6 Ves. 341; 2 Ves. sr. 67; 2 Str. 1175;
Cro. Eliz. 525; Pollexf. 645; 1 Bing. 500; 3 T. R. 470; 1 Ves. sr. 409; 3 Atk.
83, 85; Ayl. Pand. 56; 2 Miles, Rep. 49.
2. In the civil law, when a legacy is given to Caius or Titius, the word or
is considered and, and both Caius and Titius are entitled to the legacy in equal
parts. 6 Toull. n. 704. See Copulative term; Construction, subdivision, And;
Or.. Also, Bac. Ab. Conditions, P 5.
DISMES. Another name for tithes. Dime, (q. v.) a piece of federal
money, is sometimes improperly written disme.
TO DISMISS A CAUSE, practice. A term used in courts of chancery for
removing a cause out of court without any further hearing.
DISOBEDIENCE. The want of submission to the orders of a superior.
2. In the army, disobedience is a misdemeanor.
3. For disobedience to parents, children may be punished; and apprentices may
be imprisoned for disobedience to the lawful commands of their master. Vide
DISORDERLY HOUSE, crim. law. A house, the inmates of which believe so
badly as to become a nuisance to the neighborhood.
2. The keeper of such house may be indicted for keeping a public nuisance.
Hardr. 344; Hawk. b. 1, c. 78, s. 1 and 2 Bac. Ab. Inns, A; 1 Russ. on Cr. 298;
1 Wheel. C. C. 290; 1 Serg. & Rawle, 342; 2 Serg. & Rawle, 298; Bac. Ab.
Nuisances, A; 4 Chit. BI.. Com. 167, 8, note. The hushand must be joined with
the wife in an indictment to suppress a disorderly house. Justice's Case, Law
16; 1 Shaw, 146. Vide Bawdy house; Ill fame.
DISPARAGEMENT. An injury by union or comparison with some person or
thing of inferior rank or excellence; as, while the infant was in ward, by the
English law, the guardian had the power of tendering him a suitable match
without disparagement. 2 Bl. Com. 70.
TO DISPAUPER, Eng. law. To deprive a person of the privilege of suing
in forma pauperis. (q. v.)
2. When a person has been admitted to sue in forma pauperis, and, before the
suit is ended, it appears that the party. has become the owner of a sufficient
estate real or personal, or has been guilty of some wrong, he may be
DISPENSATION. A relaxation of law for the benefit or advantage of an
individual. In the United States, no power exists, except in the legislature, to
dispense with law, and then it is not so much a dispensation as a change of the
TO DISPONE, Scotch law. This is a technical word, which implies, it is
said, a transfer of feudal property by a particular deed, and is not equivalent
to the term alienate; but Lord Eldon says, "with respect to the word dispone, if
I collect the opinions of a majority of the judgcs rightly, I am of opinion that
the word dispone would have the same effect as the word alienate.) (q. v.)
Sandford on Entails, 179, note.
DISPOSITION, French law. This word has several accept-ations;
sometimes it signifies the effective marks of the will of some person; and at
others the instrument containing those marks.
2. The dispositions of man make the dispositions of the law to cease; for
example, when a man bequeaths his estate, the disposition he makes of it,
renders the legal disposition of it, if he had died intestate, to cease.
DISSEISED pleading. This is a word with a technical meaning, which,
when inserted in an indictment for forcible entry and detainer, has all the
force of the words expelled or unlawfully, for the last is superfluous, and the
first is implied in the word disseised. 8 T. R. 357; Cro. Jac. 32; vide 3
Yeates' R. 39; S. C. 4 Dall. Rep. 212.
DISSEISEE, torts. One who is wrongfully put out of possession of his
DISSEISIN, torts. The privation of seisin. It takes the seisin or
estate from one man and places it in another. It is an ouster of the rightful
owner from the seisinor estate in the land, and the coinmencement of a new
estate in the wrong doer. It may be by abatement, intrusion, discontinuance, or
deforcement, as well as by disseisin, properly so called. Every dispossession is
not a disseisin. A disseisin, properly so called, requires an ouster of the
freehold. A disseisin at election is not a disseisin in fact; 2 Prest. Abs. tit.
279, et seq.; but by admission only of the injured party, for the purpose of
trying his right in a real action. Co. Litt. 277; 3 Greenl. 316; 4 N. H. Rep.
371; 5 Cowen, 371; 6 John. 197; 2 Fairf. 309, 2 Greenl. 242; 5 Pet. 402; 6 Pick.
2. Disseisin may be effected either in corporeal inheritances, or
incorporeal. Disseisin of things corporcal, as of houses, lands, &c., must
be by entry and actual dispossession of the freehold; as if a man enters, by
force or fraud, into the house of another, and turns, or at least, keeps him or
his servants out of possession. Disseisin of incorporeal hereditaments cannot be
an actual dispossession, for the subject itself is neither capable of actual
bodily possession nor dispossession. 3 B1. Com. 169, 170. See 15 Mass. 495 6
John. R. 197; 2 Watts, 23; 6 Pick. 172 1 Verm. 155; 11 Pet. R. 41; 10 Pet. R.
414; 14 Pick. 374; 1 Dana's R. 279; 2 Fairf. 408; 11 Pick. 193; 8 Pick. 172; 8
Vin. Ab. 79; 1 Swift's Dig. 504; 1 Cruise, *65; Arch. Civ. Pl. 12; Bac. Ab. h.
t.; 2 Supp. to Ves. Jr. 343; Dane's Ab. Index, h. t.; 1 Chit. Pr. 374, note
DISSEISOR, torts. One who puts another out of the possession of his
DISSENT, contracts. A disagreement to something which has been done.
It is express or implied.
2. The law presumes that every person to whom a conveyance has been made has
given his assent to it, because it is supposed to be for his benefit. To rebut
the presumption, his dissent must be expressed. Vide 4 Mason, R. 206; 11 Wheat.
R. 78; 1 Binn. R. 502; 2 Binn. R. 174; 6 Binn. R. 338; 12 Mass. R. 456; 17 Mass.
R. 552; 3 John. Ch. R. 261; 4 John. Ch. R. 136, 529; and dssent, and the
authorities there cited.
DISSOLUTION, contracts. The dissolution of a contract, is the
annulling its effects between the contracting parties.
2. This dissolution of a partnership, is the putting an end to the
partnership. Its dissolution does not affect contracts made between the.
partners and others; so that they are entitled to all their rights, and they are
liable on their obligations, as if the partnership had not been dissolved. Vide
article Partnership and 3 Kent, Com. 27 Dane's Ab. h. t.; Gow on Partn. Index,
h. t.; Wats. on Partn. h. t.; Bouv. Inst. Index, h. t.
DISSOLUTION, practice. The act of rendering a legal proceeding null,
or changing its character; as, a foreign attachment in Pennsylvania is:
dissolved by entering bail to the action. Injunctions are dissolved by the
TO DISSUADE, crim. law. To induce a person not to do an act.
2. To dissuade a witness from giving evidence against a person indicted, is
an indictable offence at common law. Hawk. B. 1, c. 2 1, s. 1 5. The mere
attempt to stifle evidence, is also criminal, although the persuasion should not
succeed, on the general principle that an incitement to commit a crime, is in
itself criminal. 1 Russ. on Cr. 44; 6 East, R. 464; 2 East, R. 6, 21; 2 Str.
904; 2 Leach, 925. Vide To Persuade.
DISTRACTED PERSON, This term is used in the statutes of Illinois; Rev.
Laws of Ill. 1833, p. 332; and New Hampshire; Dig. Laws of N. H. 1830, p. 339;
to express a state of insanity.
TO DISTRAIN. To take an keep any personal chattel in custody, as a
distress. (q. v.)
DISTRAINOR. One who makes a distress of goods and chattels to enforce
DISTRESS, remedies. A distress is defined to be, the taking of a
personal chattel, without legal process, from the possession of the wrong doer,
into the hands of the party grieved, as a pledge for the redress of an injury,
the performance of a duty, or the satisfaction of a demand. 3 Bl. Com. 6. It is
a general rule, that a man who has an entire duty, shall not split the entire
sum and distrain for part of it at one time, and part of it at another time. But
if a man seizes for the whole sum that is due him, but mistakes the value of the
goods distrained, there is no reason why he should not afterwards complete his
execution by making a further seizure. 1 Burr. 589. It is to be observed also,
that there is an essential difference between distresses at common law and
distresses prescribed by statute. The former are taken nomine penae, (q. v.) as
a means of compelling payment; the latter are similar to executions, and are
taken as satisfaction for a duty. The former could not be sold the latter might
be. Their only similarity is, that both are replevisable. A consequence of this
difference is, that averia carucae are distrainable in the latter case, although
there be other sufficient distress. 1 Burr. Rep. 588.
2. The remedy by distress to enforce the payment of arrears of rent is so
frequently adopted by landlords, (Co. Lit. 162, b,) that a considerable space
will be allotted to this article under the following heads: 1. The several kinds
of rent for which a distress may be made. 2. The persons who may make it. 3. The
goods which may be distrained. 4. The time when a distress may be made. 5. In
what place it may be made. 6. The manner of making it, and disposing of the
goods distrained. 7. When a distress will be a waiver of a forfeiture of the
3. - §1. Of the rents for which a distress may be made. 1. A distress may
generally be taken for any kind of rent in arrear, the detention of which,
beyond the day of payment, is an injury to him who is entitled to receive it. 3
Bl. Com. 6. The rent must be reserved out of a corporeal hereditament, and must
be certain in its quantity, extent, and time of payment, or at least be capable
of being reduced to certainty. Co. Lit. 96, a.; 13 Serg. & Rawle, 64; 3
Penn. R. 30. An agreement that the lessee pay no rent, provided he make repairs,
and the value of the repairs is uncertain, would not authorize the landlord to
distrain. Addis. 347. Where the rent is a certain quantity of grain, the
landlord may distrain for so many bushels in arrear, and name the value, in
order that if the goods should not be replevied, or the arrears tendered, the
officer may know what amount of money is to be raised by the sale, and in such
case the tenant may tender the arrears in grain. 13 Serg. & Rawle, 52; See 3
Watts & S. 531. But where the tenant agreed, instead of rent, to render "
one-half part of all the grain of every kind, and of all hemp, flax, potatoes,
apples, fruit, and other produce of whatever kind that should be planted,
raised, sown or produced, on or out of the demised premises, within and during
the terms,", the landlord cannot, perhaps, distrain at all; he cannot,
certainly, distrain for a sum of money, although he and the tenant may
afterwards have settled their accounts, and agreed that the half of the produce
of the land should be fixed in money, for which the tenant gave his note, which
was not paid. 1 3 Serg. & Rawle, 5 2. But in another case it was held, that
on a demise of a grist mill, when the lessee is to render one-third of the toll,
the lessor may distrain for rent. 2 Rawle, 11.
4. - 2. With respect to the amount of the rent, for which a lessor may in
different cases be entitled to make a distress, it may be laid down as a general
rule, that whatever can properly be considered as a part of the rent, may be
distrained for, whatever be the particular mode in which it is agreed to be
paid. So that where a person entered into possession of certain premises,
subject to the approbation of the landlord, which was afterwards obtained, by
agreeing to pay in advance, rent from the time be came into possession, it was,
in England, determined that the landlord might distrain for the whole sum
accrued before and after the agreement. Cowp. 784. For on whatever day the
tenant agrees that the rent shall be due, the law gives the landlord the power
of distraining for it at that time. 2 T. R. 600. But see 13 S. & R. 60. In
New York, it was determined, that an agreement that the rent should be paid in
advance, is a personal covenant on which an action lies, but not distress. 1
Johns. R. 384. The supreme court of Pennsylvania declined deciding this point,
as it was not necessarily before them. 13 Serg. & Rawle, 60. Interest due on
rent cannot, in general, be distrained for; 2 Binn. 146; but may be recovered
from the tenant by action, unless under particular circumstances. 6 Binn.
5. - §2. Of the persons entitled to make a distress. 1. When the landlord is
sole owner of the property out of which rent is payable to him, he may, of
course, distrain in his own right.
6. - 2. Joint tenants have each of them an estate in every part of the rent;
each may, therefore, distrain alone for the whole, 3 Salk. 207, although he must
afterwards account with his companions for their respective shares of the rent.
3 Salk. 17; 4 Bing. 562; 2 Brod. & B. 465; 5 Moore, 297 Y. B. 15 H. VIII,
17, a; 1 Chit. Pr. 270; 1 Tho. Co. Litt. 783, note R; Bac. Ab. Account; 5 Taunt.
431; 2 Chit. R. 10; 3 Chit. Pl. 1297. But one joint tenant cannot avow solely,
because the avowry is always upon the right, and the right of the rent is in all
of them. Per Holt, 3 Salk. 207. They may all join in making the distress, which
is the better way.
7. - 3. Tenants in common do not, like joint tenants, hold by one title and
by one right, but by different titles, and have several estates. Therefore they
should distrain separately, each for his share, Co. Lit. s. 317, unless the rent
be of an entire thing, as to render a horse, in which case, the thing being
incapable of division, they must join. Co. Lit. 197, a. Each tenant in common is
entitled to receive, from the lessee, his proportion of the rent; and therefore,
when a person holding under two tenants in common, paid the whole rent to one of
them, after having received a notice to the contrary from the other, it was
held, that the party who gave the notice might afterwards distrain. 5 T. R. 246.
As tenants in common have no original privity of estate between them, as to
their respective shares, one may lease his part of the land to the other,
rendering rent, for which a distress may be made, as if the land had been
demised to a stranger. Bro. Ab. tit. Distress, pl. 65.
8. - 4. It may be, perhaps, laid down asa general rule, that for rent due in
right of the wife, the hushand may distrain alone; 2 Saund. 195; even if it
accrue to her in the character of executrix or administratrix. Ld. Raym. 369.
With respect to the remedies for the recovery of the arrears of a rent accruing
in right of his wife, a distinction is made between rent due for land, in which
the wife has a chattel interest, and rent due in land, in which she has an
estate of freehold and inheritance. And in some cases, a further distinction
must be made between a rent accruing before and rent accruing after the
coverture. See, on this subject, Co. Lit. 46, b, 300, a; 351, a; 1 Roll. Abr.
350; stat; 32 Hen. VIII. c. 37, s. 3.
9. - 5. A tenant by the curtesy, has an estate of freehold in the lands of
his wife, and in contemplation of law, a reversion on all land of the wife
leased for years or lives, and may distrain at common law for all rents reserved
10. - 6. A woman may be endowed of rent as well as of land; if a hushand,
therefore, tenant in fee, make a lease for years, reserving rent, and die, his
widow shall be endowed of one-third part of the reversion by metes and bounds,
together with a third part of the rent. Co. Litt. 32, a. The rent in this base
is apportioned by the act of law, and therefore if a widow be endowed of a third
part of a rent in fee, she may distrain for a third part thereof, and the heir
shall distrain for the other part of the rent. Bro. Abr. tit. Avowry, pl.
11. - 7. A tenant for his own life or that of another, has an estate of
freehold, and if he make a lease for years, reserving rent, he is entitled to
distrain upon the lessee. It may here be proper to remark, that at common law,
if a tenant for life made a lease for years, if be should so long live, at a
certain rent, payable quarterly, and died before the quarter day, the tenant was
discharged of that quarter's rent by the act of God. 10 Rep. 128. But the 11
Geo. II. c. 19, s. 15, gives an action to the executors or administrators of
such tenant for life.
12. - 8. By the statute 32 Henry VIII. c. 37, s. 1, "the personal
representatives of tenants in fee, tail, or for life, of rent-service,
rent-charge, and rents-seek, and fee farms, may distrain for, arrears upon the
land charged with the payment, so long as the lands continue in seisin or
possession of the tenant in demesne, who ought to have paid the rent or fee
farm, or some person claiming under him by purchase, gift or descent." By the
words of the statute, the distress must be made on the lands while in the
possession of the "tenant in demesne," or some person claiming under him, by
purchase, gift or descent; and therefore it extends to the possession of those
persons only who claim under the tenant, and the statute does not comprise the
tenant in dower or by the curtesy, for they come in, not under the party, but by
act of law. 1 Leon. 302.
13. - 9. The heir entitled to the reversion may distrain for rent in arrear
which becomes due after the ancestor's death; the rent does not become due till
the last minute of the natural day, and if the ancestor die between sunset and
midnight, the heir, and not the executor, shall have the rent. 1 Saund. 287. And
if rent be payable at either of two periods, at the choice of the lessee, and
the lessor die between them, the rent being unpaid, it will go to the heir. 10
Rep. 128, b.
14. - 10. Devisees, like heirs, may distrain in respect of their reversionary
estate; for by a devise of the reversion the rent will pass with its incidents.
1 Ventr. 161.
15. - 11. Trustees who have vested in them legal estates, as trustees of a
married woman, or assignees of an insolvent, may of course distrain in respect
of their legal estates, in the same manner as if they were beneficially
16. - 12. Guardians may make leases of their wards' lands in their, own
names, which will be good during the minority of the ward. and, consequently, in
respect of such leases, they possess the same power of distress as other persons
granting leases in their own rights. Cro. Jac. 55, 98.
17. - 13. Corporations aggregate should generally make and accept leases or
other conveyances of lands or rent, under their common seal. But if a lease be
made by an agent of the corporation, not under their common seal, although it
may be invalid as a lease, yet if the tenant hold under it, and pay rent to the
bailiff or agent of the corporation, that is sufficient to constitute a tenancy
at least from year to year, and to entitle the corporation to distrain for rent.
New Rep. 247. But see Corporation.
18. - §3. Of the things which may or may not be distrained. Goods found upon
the premises demised to a tenant are generally liable to be distrained by a
landlord for rent, whether such goods in fact belong to the tenant or other
persons. Coin. Dig. Distress, B 1. Thus it has been held, that a gentleman's
chariot, which stood in a coach-house belonging to a common livery stable
keeper, was distrainable by the landlord for the rent due him by the livery
stable keeper for the coach-house. 3 Burr. 1498. So if cattle are put on the
tenant's land by consent of the owners of the beasts, they are distrainable by
the landlord immediately after for rent in arrear. 3 Bl. Com. 8. But goods are
sometimes privileged from distress, either absolutely or conditionally.
19. First. Those of the first class are privileged, 1. In respect of the
owner of 2. Because no one can have property in them. 3. Because they cannot be
restored to the owner in the same plight as when taken. 4. Because they are
fixed to the freehold. 5. Because it is against the policy of law that they
should be distrained. 6. Because they are in the custody of the law. 7. Because
they are protected by some special act of the legislature.
20. - 1. The goods of a person who has some interest, in the land jointly
with the distrainer, as those of a joint tenant, although found upon the land,
cannot be distrained. The goods of executors and administrators, or of the
assignee of an insolvent regularly discharged according to law, cannot, in
Pennsylvania, be distrained for more than one year's rent. The goods of a former
tenant, rightfully on the land, cannot be distrained for another's rent. For
example, a tenant at will, if quitting upon notice from his landlord, is
entitled to the emblements or growing crops; and therefore even after they are
reaped, if they remain on the land for the purpose of hushandry, they cannot be
distrained for rent due by the second tenant. Willes, 131. And they are equally
protected in the hands of a vendee. Ibid. They cannot be distrained, although
the purchaser allow them to remain uncut an unreasonable time after the are
ripe. 2 B. & B. 862; 5 Moore, 97, S. C.
21. - 2. As every thing which is distrained is presumed to be the property of
the tenant, it will follow that things wherein no man can have an absolute and
valuable property, as cats, dogs, rabbits, and all animals ferae naturae, cannot
be distrained. Yet, if deer, which are of a wild nature, 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. 3 B1. Com. 7.
22. - 3. Such things as cannot be restored to the owner in the same plight as
when they were taken, as milk, fruit, and the like, cannot be distrained. 3 Bl.
23.- 4. Things affixed or annexed to the freehold, as furnaces, windows,
doors, and the like, cannot be distrained, because they are not personal
chattels, but belong to the realty. Co. Litt. 47, b. And this rule extends. to
such things as are essentially a part of the freehold, although for a time
removed therefrom, as a millstone removed to be picked; for this is matter of
necessity, and it still remains in contemplation of law, a part of the freehold.
For the same reason an anvil fixed in a smith's shop cannot be distrained. Bro.
Abr. Distress, pl. 23; 4 T. R. 567; Willis, Rep. 512 6 Price's R. 3; 2 Chitty's
24. - 5. Goods are privileged in cases where the proprietor is either
compelled, from necessity to place his goods upon the land, or where be does so
for commercial purposes. 17 S. & R. 139; 7 W. & S. 302; 8 W. & S.
302; 4 Halst. 110; 1 Bay, 102, 170; 2 McCord, 39; 3 B. & B. 75; 6 J. B.
Moore, 243; 1 Bing. 283; 8 J. B. Moore, 254; 2 C. & P. 353; 1 Cr. M. 380. In
the first case, the goods are exempt, because the owner has no option; hence the
goods of a traveller in an inn are exempt from distress. 7 H. 7, M. 1, p. 1.;
Hamm. N. 380, a.; 2 Keny. 439; Barnes, 472; 1 Bl. R. 483; 3 Burr. 1408. In the
other, the interests of the community require that commerce should be
encouraged, and adventurers will not engage in speculations, if the property
embarked is to be made liable for the payment of debts they never contracted.
Hence goods landed at a wharf, or deposited in a warehouse on storage, cannot be
distrained. 17 Serg. & Rawle, 138; 6 Whart. R. 9, 14; 9 Shepl. 47; 23 Wend.
462. Valuable things in the way of trade are not liable to distress; as, a horse
standing in a smith's shop to be shod, or in a common inn; or cloth at a
tailor's house to be made into a coat; or corn sent to a mill to be ground, for
these are privileged and protected for the benefit of trade. 3 Bl. Com. 8. On
the same principle it has been decided, that the goods of a boarder are not
liable to be distrained for rent due by the keeper of a boarding house; 5 Whart.
R. 9; unless used by the tenant with the boarder's consent, and without that of
the landlord: 1 Hill , 565.
25. - 6. Goods taken in execution cannot be distrained. The law in some
states gives the landlord the right to claim payment out of the proceeds of an
execution for rent, not exceeding one year, and he is entitled to payment up to
the day of seizure, though it be in the middle of a quarter 2 Yeates, 274; 5
Binn. 505; but he is not entitled to the day of sale. 5 Binn. 505. See 18 Johns.
R. 1. The usual practice is, to give notice to the, sheriff that there is a
certain sum due to the landlord as arrears of rent; which notice ought to be
given to the sheriff, or person who takes the goods in execution upon the
premises for the sheriff is, not bound to find out whether rent is due, nor is
he liable to an action, unless there has been a demand of rent before the
removal. 1 Str. 97, 214; 3 Taunt. 400 2 Wils. 140; Com. Dig. Rent, D 8; 11
Johns. R. 185. This notice can be given by the immediate landlord only a ground
landlord is not entitled to his rent out of the goods of the under tenant taken
in execution. 2 Str. 787. And where there are two executions, the landlord is
not entitled to a year's rent on each. See Str. 1024. Goods distrained and
replevied may be distrained by another landlord for subsequent rent. 2 Dall.
26.-7. By some special acts of the legislature it is provided that tools of a
man's trade, some designated household furniture, school books, and the like,
shall be exempted from distress, execution, or sale. And by a recent Act of
Assembly of Pennsylvania, April 9, 1849, property to the value of three hundred
dollars, exclusive of all wearing apparel of the defendant and his family, and
all bibles and school books in use in the family, are exempted from levy and
sale on execution, or by distress for rent.
27. - Secondly. Besides the above mentioned goods and chattels, which are
absolutely privileged from distress, there are others which are conditionally
so, but which may be distrained under certain circumstances. These are, 1.
Beasts of the plough, which are exempt if there be a sufficient distress besides
on the land whence the rent issues. Co. Litt. 47, a; Bac. Abr. Distress, B. 2.
Implements of trade; as, a loom in actual use; and there is a sufficient
distress besides. 4 T. R. 565. 3. Other things in actual use,; as, a horse
whereon a person is riding, an axe in the hands of. a person cutting wood, and
the like. Co. Litt. 4 7, a.
28. - §4. The time when a distress may be made. 1. The distress cannot be
made till the rent is due by the terms of the lease; as reat is not due until
the last minute of the natural day on which it is reserved, it follows that a
distress for rent cannot be made on that day. 1 Saund. 287; Co. Litt. 47, b. n.
6. A previous demand is not generally necessary, although there be a clause in
the lease, that the lessor may distrain for rent," being lawfully demanded
Bradb. 124; Bac. Abr. Rent, 1; the making of the distress being a demand though
it is advisable to make such a demand. But where a lease provides for a special
demand; as, if the clause were that if the rent should happen to be behind it
should be demanded at a particular place not on the land; or be demanded of the
person of the tenant; then such special demand is necessary to support the
distress. Plowd. 69 Bac. Abr. Rent, I.
29. - 2 A distress for rent can only be made during the day time. Co. Litt.
30. - 3. At common law a distress could not be made after the expiration of
the lease to remedy this evil the legislature of Pennsylvania passed an act
making it "lawful for any person having any rent in arrear or due upon any lease
for life or years or at will, ended or determined, to distrain for such arrears
after the determination of the said respective leases, in the same manner as
they might have done, if such lease had not been ended: provided, that such
distress be made during the continuance of such lessor's title or interest.",
Act of March 21, 1772, s. 14, 1 Smith's Laws of Penna. 375. 4. In the city and
county of Philadelphia, the landlord may, under certain circumstances, apportion
his rent, and distrain before it becomes due. See act of March 25, 1825, s. 1,
Pamph. L. 114.
31. - §5. In what place a distress may be made. The distress may be made upon
the land, or off the land. 1. Upon the land. A distress generally follows the
rent, and is consequently confined to the land out of which it issues. If two
pieces of land, therefore, are let by two separate demises, although both be
contained in one lease, a joint distress cannot be made for them, for this would
be to make the rent of one issue out of the other. Rep. Temp. Hardw. 245; S. C.
Str. 1040. But where lands lying in different counties are let together by one
demise, at one entire rent, and it does not appear that the lands are separate
from each other, one distress may be made for the whole rent. Ld. Raym. 55; S.
C. 12 Mod. 76. And, where rent is charged upon land, which is afterwards held by
several tenants, the grantee or landlord may distrain for the whole upon the
land of any of them; because the whole rent is deemed to issue out of every part
of the land. Roll. Abr. 671. If there be a house on the land, the distress may
be made in the house; if the outer door or window be open, a distress may be
taken out of it. Roll. Abr. 671. And if an outer door be open, an inner door may
be broken open for the purpose of taking a distress. Comb. 47; Cas. Temp. Hard.
168. Barges on a river, attached to the leased premises (a wharf) by ropes,
cannot be distrained. 6 Bingh. 150; 19 Eng. Com. Law R. 36.
32. - 2. Off the land. By the 5th and 6th sections of the Pennsylvania act of
assembly of March 21, 1772, copied from the 11 Geo. II. c. 19, it is enacted,
that if any tenant for life, years, at will, or otherwise, shall fraudulently or
clandestinely convey his goods off the premises to prevent the landlord from
distraining the same, such person, or any person by him lawfully authorized,
may, within thirty days after such conveyance, seize the same, wherever they
shall be found, and dispose of them in such manner as if they had been
distrained on the premises. Provided, that the landlord shall not distrain any
goods which shall have been previously sold, bona fide, and for a valuable
consideration, to one not privy to the fraud. To bring a case within the act,
the removal must take place after the rent becomes due, and must be secret, not
made in open day, for such removal cannot be said to be clandestine within the
meaning of the act. 3 Esp. N. P. C. 15; 12 Serg. & Rawle, 217; 7 Bing. 422;
1 Moody & Malkin, 585. It has however been made a question, whether goods
are protected that were fraudulently removed on the night before the rent had
become due. 4 Camp. 135. The goods of a stranger cannot be pursued; they can be
distrained only while they are, on the premises. 1 Dall. 440.
33. - §6. Of the manner of making a distress. 1. A distress for rent may be
made either by the person to whom it is due, or, which is the preferable mode,
by a constable, or bailiff, or other officer properly authorized by him.
34. - 2. If the distress be made by a constable, it is necessary that he
should be properly authorized to make it; for which purpose the landlord should
give him a written authority, or; as it is usually called, a warrant of
distress; but a subsequent assent and recognition given by the party for whose
use the distress has been made, is sufficient. Hamm. N. P. 382.
35. - 3. When the constable is thus provided with the requisite authority to
make a distress, he, may distrain by seizing the tenant's goods, or some of them
in the name of the whole, and declaring that he takes them as a distress for the
sum expressed in the warrant to be due by the tenant to the landlord, and that
he takes them by virtue of the said warrant; which warrant he ought, if
required, to show. 1 Leon. 50.
36. - 4. When making the distress it ought to be made for the whole rent; but
if goods cannot be found at the time, sufficient to satisfy the rent, or the
party mistake the value of the thing distrained, he may make a second distress.
Bradb. 129, 30; 2 Tr. & H. Pr. 155; supra 1.
37. - 5. As soon as a distress is made, an inventory of the goods distrained
should be made, and a copy of it delivered to the tenant, together with a notice
of taking such distress, with the cause for taking the same. This notice of
taking a distress is not required by the statute to be in writing; and,
therefore, parol or verbal notice may be given either to the tenant on the
premises, or to the owner of the goods distrained. 12 Mod. 76. And although
notice is directed by the act to specify the cause of taking, it is not material
whether it accurately state the period of the rent's becoming due; Dougl. 279;
or even whether the true cause of taking the goods be expressed therein. 7 T. R.
654. If the notice be not personally given, it should be left in writing at the
tenant's house, or according to the directions of the act, at the mansion-house
or other most notorious place on the premises charged with the rent distrained
38. - 6. The distrainor may leave or impound the distress on the premises for
the five days mentioned in the act, but becomes a trespasser after that time. 2
Dall. 69. As in many cases it is desirable for the sake of the tenant that the
goods should not be sold as soon as the law permits, it is usual for him to sign
an agreement or consent to their remaining on the premises for a longer time, in
the custody of the distrainor, or of a person by him appointed for that purpose.
While in his possession, the distrainor cannot use or work cattle distrained,
unless it be for the owner's benefit, as to milk a cow, or the like. 5 Dane's
39. - 7. Before the goods are sold they must be appraised by two reputable
free-holders, who shall take an oath or affirmation to be administered by the
sheriff, under-sheriff, or coroner, in the words mentioned in the act.
40. - 8. The next requisite is to give six days public notice of the time and
place of sale of the things distrained; after which, if they have not been
replevied, they may be sold by the proper officer, who may apply the proceeds to
the payment and satisfaction of the rent, and the expenses of the distress,
appraisement and sale. The over-plus, if any, is to be paid to the tenant.
41. - §7. When a distress will be a waiver of a forfeiture of the lease. On
this subject, see 1 B. & Adol. 428. The right of distress, it seems, does
not exist in the New England states. 4 Dane's Ab. 126; 7 Pick. R. 105; 3 Griff.
Reg 404; 4 Griff. Reg. 1143; Aik. Dig. 357, nor in Alabama, Mississippi, North
Carolina, nor Ohio; and in Kentucky, the right is limited to a distress for a
pecuniary rent. 1 Hill. Ab. 156. Vide, generally, Bouv. Inst. Index, h . t.;
Gilb. on Distr. by Hunt; Bradb. on Distr.; Com. Dig. h. t.; Bac. Ab. h. t.; Vin.
Ab. h. t.; 2 Saund. Index, h. t.; Wilk. on Repl.; 3 Chit. Bl. Com. 6, note;
Crabb on R. P. §222 to 250.
DISTRESS INFINITE, English practice. A process commanding the sheriff
to distrain a person from time to time, and continually afterwards, by taking
his goods by way of pledge, to enforce the performance of something due from the
party distrained upon. In this case, no distress can be immoderate, because,
whatever its value may be, it cannot be sold, but is to be immediately restored
on satisfaction being made. 3 Bl. Com. 231. See Distringas.