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admintstrators of every such person or persons, unto whom any such rent or fee-farm is or shall be due, and not paid at the time of his death, shall and may have an action of debt for all such arrearages, against the tenant or tenants that ought to have paid the said rent or fee-farms so being behind in the life of their testator, or against the executors and administrators of the said tenants; and also furthermore, it shall be lawful to every such executor and administrator of any such person or persons unto whom such rent or fee-farm is or shall be due, and not paid at the time of his death as is aforesaid, to distrain for the arrearages of all such rents and fee-farms, upon the lands, tenements and other hereditaments, which were charged with the payment of such rents, or fee-farms, and chargeable to the distress of the said testator, so long as the said lands, tenements or hereditaments continue, remain and be in the seisin or possession of the said tenant in demesne, who ought immediately (1) to have paid the said rent or fee-farm so being behind, to the said testator in his life, or in the seisin or possession of any other person or persons claiming the said lands, tenements and hereditaments, only by and from the same tenant by purchase, gift or descent, (2) in like manner and form as their said testator might or ought to have done in his life-time, and the said executors and administrators shall, for the same distress, lawfully make avowry (3) upon their matter aforesaid. (4)

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II. Provided alway, That this Act, nor any thing therein contained, Redemption shall not extend to any such manor, lordship, or dominion in Wales, money paid in or in the marches of the same, whereof the inhabitants have used, time Wales and the out of the mind of man, to pay unto every lord, or owner of such lord- marches. ship, manor, or dominion, at his or their first entry into the same, any sum or sums of money, for the redemption and discharge of all duties, forfeitures and penalties, wherewith the said inhabitants were chargeable to any of their said lords ancestors or predecessors before his said entry.

III. And further be it enacted by the authority aforesaid, That if any The husband's man which now hath, or hereafter shall have in the right of his wife, remedy for any estate in fee-simple, fee-tail, or for term of life, of or in any rent due in the rents or fee-farms, and the same rents or fee-farms now be, or here- right, and in after shall be due, behind and unpaid in the said wife's life; then the the life of his said husband, after the death of his said wife, his executors and ad- wife. ministrators, shall have an action of debt for the said arrearages against the tenant of the demesne that ought to have paid the same, his executors or administrators; and also the said husband, after the death of his said wife, may distrain for the said arrearages, in like manner and form, as he might have done, if his said wife had been then living, and make avowry upon his matter as is aforesaid.

(1) It is not necessary in an avowry to aver that the place remains in the seisin of the person who ought to have paid the rent, or of persons claiming under him. The plaintiff, if he is not liable, should shew how he is not liable; Hool v. Bell, 1 Lord Raym. 172.

(2) In Braithwaite v. Cooksey, 1 H. B. 465. it is said that the statute enables the landlord to distrain against executors or administrators. This observation is not correct, if intended to import that there is any such express provision.

(3) To a declaration of replevin, for taking the plaintiff's goods, the defendant avowed under the stat. 32 H. 8. c. 37., as administratrix of A. B. who was seised in fee: that C. D. held the premises as tenant to him by virtue of a demise made to him C. D. at and under a certain yearly rent; and that because a sum for rent was due to A. B. at the time of his death, from C. D., and still in arrear to

defendant, as administratrix, she well avowed the taking of the goods in the premises, in which, &c. the same being charged with the payment of rent to A. B., and continuing in possession of the plaintiff, as tenant to C. D.: It appearing that C. D. was possessed of the premises by virtue of a lease for twenty-one years; it was objected that the defendant was not entitled to distrain under the statute, and that the avowry was bad; but the court of C. P. held, that as the tenancy did not appear to be for years, and that as it was unnecessary for the defendant to shew how the plaintiff became entitled to or held the premises, the avowry was sufficient. Menton v. Gilbee, 2 Moore 48.

(4) An executor upon such avowry is entitled to costs, although this statute is subsequent to those giving costs to an avowant; 2 Rol, Rep. 437.

No. XII.

c. 37.

The remedy

for a rent, the estate whereof dependethupon another's life being dead.

IV. And likewise it is further enacted by the authority aforesaid, 32 H. VIII. That if any person or persons which now have, or hereafter shall have, any rents or fee-farms for term of life or lives, of any other person or persons, and the said rent or fee-farm now be, or hereafter shall be due, behind and unpaid in the life of such person or persons for whose life or lives the estate of the said rent or free-farm did depend or continue, and after the said person or persons do die; then he unto whom the said rent or fee-farm was due in form aforesaid, his executors or administrators shall and may have an action of debt against the tenant in demesne, that ought to have paid the same when it was first due, his executors and administrators, and also distrain for the same arrearages upon such lands and tenements, out of the which the said rents or fee-farms were issuing and payable, in such like manner and form as he ought or might have done, if such person or persons by whose death the aforesaid estate in the said rents and fee-farms was determined and expired, had been in full life and not dead; and the avowry for the taking of the same distress to be made in manner and form aforesaid.

c. 12.

Where distresses taken shall be impounded.

[ No. XIII. ] 1 & 2 Philip and Mary, c. 12.—An Act for the impounding of Distresses.

1 & 2 P. & M. FOR the avoiding of grievous vexations, exactions, troubles and disorder in taking of distresses, and impounding of cattle,' Be it enacted by the authority of this present Parliament, That from and after the first day of April next coming, no distress of cattle shall be driven out of the hundred, rape, wapentake or lathe where such distress is or shall be taken, except that it be to a pound overt within the same shire, (1) not above three miles distant from the place where the said distress is taken: And that no cattle or other goods distrained or taken by way of distress for any manner of cause at one time, shall be impounded in several places, whereby the owner or owners of such distress shall be constrained to sue several replevies for the delivery of the said distress so taken at one time; upon pain every person offending (2) contrary to this Act, shall forfeit to the party grieved, for every such offence, an hundred shillings, and treble damages.

How much may be taken for poundage.

The sheriff shall appoint four deputies to make reple

vins.

II. And be it further enacted by the authority aforesaid, That after the said first day of April, no person or persons shall take for keeping in pound, impounding or poundage of any manner of distress, above the sum of four-pence for any one whole distress that shall be so impounded; and where less hath been used, there to take less; upon the pain of five pounds, to be paid to the party grieved over and beside such money as he shall take above the sum of four-pence; any usage or prescription to the contrary in any wise notwithstanding.

III. And for the more speedy delivery of cattle taken by way of distress, it is further enacted by the said authority, That every sheriff of shires, being no cities nor towns made shires, shall at his first county day, or within two months next after he hath received his patent of his office of sheriffwick, shall depute, appoint and proclaim in the shiretown within his bailiwick, four deputies (3) at the least, dwelling not above twelve miles, one distant from another; which said deputies so appointed and proclaimed shall have authority in the sheriff's name to

(1) Driving to the next pound in another shire does not make the party a trespasser, although it subjects him to the penalty of the statute; Gimbart v. Pelah, 2 Str. 1272. When lands in adjoining counties are let upon one demise, they may all be taken to a pound in either of the counties, but they cannot be riven through an intermediate county if the nties do not adjoin: Walter v. Rumbal, 1 vm. 53; 1 Salk. 247. In an action for

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driving into another county, the venue may be laid in either county: Pope v. Davis, 2 Taunt. 252.

(2) An offence against this Act is satisfied by one forfeiture, although several persons be concerned; Partridge v. Nailor, Cro. Eliz. 480; Moore 453.

(3) The deputy is answerable for the surfficiency of the pledges as well as the sheriff; Richards v. Acton, 2 Bl. Rep. 1220,

make replevies and deliverance of such distresses, in such manner and form as the sheriff may and ought to do; upon pain that every sheriff for every month that he shall lack such deputy or deputies, shall forfeit for every such offence five pounds; the one half of which forfeitures shall be to the King and Queen's Highness, her heirs and successors, the other half to him that will sue for the same by bill, plaint, information or action of debt, in any the King and Queen's courts of record, in which no essoin, protection nor wager of law shall be admitted.

[ No. XIV. ] 1 Elizabeth, c. 19.-An Act giving Autho rity to the Queen's Majesty, upon the Avoidance of any Archbishopric or Bishopric, to take into her hands certain of the Temporal Possessions thereof, recompensing the same with Parsonages impropriate and Tenths.

[Inserted Part II. Class VIII. No. 4.]

[ No. XV. ] 13 Elizabeth, c. 20.-An Act touching Leases of Benefices, and other Ecclesiastical Livings,

with Cure.

[Inserted Part II. Class VIII. No. 6.]

[ No. XVI. ] 18 Elizabeth, c. 6.-An Act for Maintenance of the Colleges in the Universities, and of Winchester and Eaton.

[At length, Vol. I.]

[No. XVII. ] 17 Charles II. c. 7.-An Act for a more speedy and effectual Proceeding upon Distresses and Avowries for Rents.

No. XIII. 1 & 2 P. and Mary, c. 12.

c. 7.

FORASMUCH as the ordinary remedy for arrearages of rents, is by 17 Charles II. distress upon the lands chargeable therewith; and yet nevertheless, by reason of the intricate and dilatory proceedings upon replevins, that remedy is become ineffectual :'

II. For remedy thereof, it is enacted by the King's most excellent Majesty, with the advice and assent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by authority of the same, That whensoever any plaintiff in replevin shall be Plaintiff in nonsuit before issue joined (1) in any suit of replevin by plaint or writ replevin being lawfully returned, removed, or depending, in any of the King's courts nonsuit before at Westminster, that the defendant making (2) a suggestion in nature issue joined, of an avowry or cognizance for such rent, to ascertain the court of the how the decause of distress, the court upon his prayer shall award a writ to the fendant may sheriff of the county where the distress was taken, to enquire by the oaths of twelve good and lawful men of his bailiwick, touching the

(1) The avowant, after judgment by default for want of a plea, may sue the sureties on the replevin bond, and need not proceed upon the statute; Waterman v. Yea, 2 Wils.

41.

(2) If the plaintiff in replevin is nonsuited, the defendant is not bound to have his damages assessed by the jury, under stat. 17 Car. 2. c.

avow.

7. or to take the earliest moment to prosecute his writ de retorno habendo. And he may again distrain the same goods for rent subsequently accrued, previously to his executing his retorno habendo, without waiving his action against the sureties in the bond; Hefford v. Alger, 1 Taunt. 218,

c. 7.

No. XVII. sum in arrear at the time of such distress taken, and the value of the 17 CharlesII. goods or cattle distrained: And thereupon notice of fifteen days (1) shall be given to the plaintiff or his attorney in court, of the sitting of such enquiry; and thereupon the sheriff shall enquire of the truth of the matters contained in such writ, by the oaths of twelve good and lawful men of his county; And upon the return of such inquisition, the defendant shall have judgment to recover against the plaintiff the arrearages of such rent, in case the goods or cattle distrained shall amount unto that value: And in case they shall not amount to that value, then so much as the value of the said goods and cattle so distrained shall amount unto, together with his full costs of suit; and shall have execution thereupon by fieri facias or elegit, or otherwise as the law shall require: And in case such plaintiff shall be nonsuit after cognizance or avowry made, and issue joined, or if the verdict shall be given against such plaintiff'; then the jurors that are impanelled or returned to enquire of such issue, shall, at the prayer of the defendant, enquire concerning the sum of the arrears, and the value of the goods or cattle distrained; (2) and thereupon the avowant, or he that makes cognizance, shall have judgment for such arrearages, or so much thereof as the goods or cattle distrained amount unto, together with his full costs, and shall have execution for the same by fieri facias or elegit, or otherwise, as the law shall require. (3)

Judgment upon demurrer for the avowant.

19 Charles II. c. 5.

17 Charles 2. c. 7.

III. And be it further enacted by the authority aforesaid, That if judgment in any of the courts aforesaid be given upon demurrer for the avowant, or him that maketh cognizance for any rent, the court shall, at the prayer of the defendant, award a writ to inquire of the value of such distress; and upon the return thereof judgment shall be given for the avowant, or him that makes cognizance as aforesaid, for the arrears alleged to be behind in such avowry or cognizance, if the goods or cattle so distrained shall amount to that value; and in case they shall not amount to that value, then for so much as the said goods or cattle so distrained amount unto, together with his full costs of suit, and shall have like execution as aforesaid.

IV. Provided always, and be it enacted, That in all cases aforesaid, where the value of the cattle distrained, as aforesaid, shall not be found to be to the value of the arrears distrained for, that the party to whom such arrears were due, his executors or administrators, may from time to time distrain again for the residue of the said arrears. [Extended to Wales and the counties palatine, by 19 Car. 2. c. 5.]

[No. XVIII.] 19 Charles II. c. 5.-An Act extending a
former Act concerning Replevins and Avowries, to the
Principality of Wales, and the Counties Palatine.
WH
WHEREAS by an Act of Parliament, intituled, "An Act for the
more speedy and effectual proceeding upon distresses and avow-

(1) The same notice should be given where the judgment is on demurrer; Burton v. Hickey, 1 Marsh. 444.

(2) This statute has taken away the writ of second deliverance: Per Curiam, Playters v. Sheering, 1 Ventr. 64. But see Cooper v. Sherbrooke, 2 Wils. 116; in which the execution of a writ of inquiry, after issuing a writ of second deliverance, was held regular.

(3) The verdict being for the defendant upon cognizance for rent, as to one count, and non cepit as to another, and giving damages, without finding the amount of the rent, or the value of the goods, the court, upon writ of error, allowed the defendant to enter judg

ment pro retorno habendo at common law, upon payment of costs; Rees v. Morgan, 3 T. R. 349. On a verdict for the plaintiff, with damages, not finding the amount and value, judgment for the damages and costs, and pro retorno habendo, although not good under this statute, is good for the damages under st. 21 Henry VIII. c. 19, ante; and is also good at common law, as judgment pro retorno, although not awarded to be irreplevisable; Gamon v. Jones, 4 T. R. 509. And Q. whether there can be a writ of inquiry, when the jury have found for the defendant, but omitted to find the value; Freeman v. Lady Archer, 2 Bl. Rep. 763,

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c. 5.

ries for rents," provision is made where any plaintiff shall be nonsuit No. XVIII. 'before issue joined in any suit or replevin, by plaint or writ lawfully 19CharlesII. ⚫ returned, removed, or depending in any of the King's courts at West'minster;' be it enacted by the King's most excellent Majesty, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, That the said Act, and all the powers and provisions thereby made for causes of replevins depending in his Majesty's courts of Westminster, shall be extended and be of the same force and efficacy in all causes of replevin, which are or shall be depending in his Majesty's Court of Common Pleas for the county palatine of Lancaster, the courts of the great sessions of his Lancaster, Majesty's principality of Wales, the court of the great sessions or assizes Wales, Chester. for the county palatine of Chester, and the Court of Common Pleas for

the county palatine of Durham, as fully and as amply for and during the continuance of the said Act, as if the said courts had been mentioned therein.

[No. XIX. ] 19 Charles II. c. 6.-An Act for Redress of Inconveniences by Want of Proof of the Deceases of Persons beyond the Seas or absenting themselves, upon whose Lives Estates do depend.

[Inserted Part II. Class II. No. 16.]

[No. XX. ] 2 William and Mary, sess. 1. c. 5.-An Act for enabling the Sale of Goods distrained for Rent, in case the Rent be not paid in a reasonable Time.

WH

sess. 1. c. 5.

WHEREAS the most ordinary and ready way for recovery of arrears 2 Wm. & Mary of rent is by distress, yet such distresses not being to be sold, but only detained as pledges for enforcing the payment of such rent, the persons distraining have little benefit thereby:' For the remedying whereof,

II. Be it enacted and ordained by the King's and Queen's most excellent Majesties, by and with the advice and consent of the Lords Spiritual and Temporal, and Commons, in this present Parliament assembled, and by the authority of the same, That from and after the first day of June, Goods distrainin the year of our Lord One thousand six hundred and ninety, that ed for rent may where any goods or chattels shall be distrained for any rent reserved (1) be appraised and due upon any demise, lease, or contract whatsoever, and the tenant and sold. or owner (2) of the goods so distrained shall not, within five days (3) next after such distress taken, and notice thereof (with the cause of such taking) left at the chief mansion house, or other most notorious place on the premises (4) charged with the rent distrained for, replevy the same, with sufficient security to be given to the sheriff according to law, that then in such case, after such distress and notice as aforesaid, and expiration of the said five days, (5) the person distraining shall and may,

(1) This statute evidently extends only to rents reserved upon leasc or contract. The statute 4 George II. c. 28. s. 5, which gives a power to distrain for rents and entry, rents of assize and chief rents, also contains a power of sale. The Irish statute 25 Geo. II. c. 13, gives a power of sale in case of distress for rent services, fee farm rents, or rent charges. This is not provided for by any English statute, except so far as the term chief rents in 4 Geo. II. may be supposed to include rents services and fee farm rents.

(2) The owner of the goods, to whom notice has been given, cannot object that notice has VOL. IV.

not been given to the tenant of the land; Walter v. Rumbal, 1 Lord Raym. 53.

(3) This is construed inclusive, so that goods distrained on Saturday morning may be sold on Thursday afternoon; Wallace v. King, 1 H. B. 13.

(4) This is not necessary, if personal notice is given to the party; Walter v. Rumbal, 1 Lord Raym. 53.

(5) In Griffin v. Scott, 2 Ld. Raym. 1424; Str. 717, it was ruled that trespass might be maintained for suffering the goods (in cases not provided for by the Act) to remain on the premises an unreasonable time, after the five M

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