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. 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) *And the reason *6] 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

(9) Rep. 101. 9 Rep. 55.

(^) Salk. 459.

(4) Cro. Car. 184.

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.

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 nonpayment of rent, or other duties; or distraining another's cattle damage-feasant,

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.

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 rentcharges 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 prin*7] ciple, 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. 2. For neglecting to do suit at the lord's court,() 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,

() The thing itself taken by this process, as well as the process itself, is in our law-books very frequently called a distress.

(*) Book ii. ch. 3.

(Bro. Abr. tit. distress, 15.

(m) Co. Litt. 47.

(") Brownl. 36.
(0) Stat. 7 Anne, c. 10.
(P) Stat. 43 Eliz. c. 2.
(9) 1 Burr. 539.

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.

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

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 *all animals feræ naturæ,) cannot be distrained. Yet if deer (which are feræ naturæ) are kept in a private [*8 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.(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."

(*) Co. Litt. 47.

(•) Davis vs. Powl, C. B. Hil. 11 Geo. II.

(t) 1 Sid. 440.

But, 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.

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.

10 As to this exception in favour of trade, see Gilb. Dist. by Hunt, 39: so cattle and

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." 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

(*) Cro. Eliz. 549.

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. ÎII. 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 herein 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.