All personal chattels are dis trainable with the following exceptions:
(i) Goods absolutely privileged—(a) fixtures (q.v.); (b) goods
sent to the tenant in the way of trade; (c) things which cannot be
restored, e.g. meat and milk; growing corn and corn in sheaves
formerly fell within this category, but the Distress for Rent Act
1737 (s. 8) abolished this exemption in the case of the former,
and a statute of 1690 abolished it in that of the latter; (d) things
in actual use, e.g. a horse while it is drawing a cart; (e) animals
ferae naturae (dogs and tame deer or deer in an enclosed park
may be distrained); (f ) things in the custody of the law, e.g. in the
possession of a sheriff under an execution (q.v.); (g) straying cattle;
(h) in the case of agricultural holdings under the Agricultural
Holdings Acts 1883-1900 hired agricultural machinery and breeding
stock; (i) the wearing apparel and “bedding”-a term which
includes “bedstead"—of tenant and his family, and the tools
and implements of his trade to the value of £5 (Law of Distress
Amendment Act 1888); (j) the goods of ambassadors and their
suites (Diplomatic Privileges Act 1708). (ii) Goods conditionally
privileged, i.e. privileged if there are sufficient goods of other kinds
on the premises to satisfy the distress—(a) implements of trade not
in actual use; (b) beasts of the plough and sheep; (c) agisted
cattle; (d) growing crops sold under an execution (Landlord and
Tenant Act 1851, s. 2); (e) lodgers’ goods. The Lodgers' Goods
Protection Act 1871 provides that where a lodger’s goods have
been seized by the superior landlord the lodger may serve him with
a notice stating that the intermediate landlord had no interest in
the property seized, but that it is the property, or in the lawful
possession, of the lodger, and setting forth the amount of the rent
due by the lodger to his immediate landlord. On payment or
tender of such rent the landlord cannot proceed with the distress
against the goods in question.
In general, a landlord cannot distrain except upon the premises demised, but he has a statutory right to follow things clandestinely or fraudulently removed from the premises within 30 days after their removal, unless they have been in the meantime sold bona fide and for valuable consideration. A landlord may, by statute (Landlord and Tenant Act 1709, s. 6), 'distrain within six months after the determination of the lease provided that the tenant has remained in possession. A distress must be made in the daytime, i.e. not before sunrise or after sunset. Six years’ arrears of rent only are recoverable by distress (Real Property Limitation Act 1833, s. 12): the Real Property Limitation Act 1874 (s. 1), which bars distress for rent after twelve years,” applies to rent-charges and not to rent under a lease, and the six years’ arrears may be recovered in spite of the lapse of time. In the case of agricultural tenancies falling within the Agricultural Holdings Acts 1883-1900, the right of distress is confined to one year’s arrears of rent. Where the tenant is bankrupt, a distress levied after the bankruptcy is limited to six months’ rent accrued due prior to the date of adjudication; see Bankruptcy Act 1883 (s. 42) and 1890 (s. 28). Where a company is being wound up, the landlord may not distrain without the leave of the court. An extension of time is allowed in cases where in the ordinary course of dealing between landlord and tenant the payment of rent has been allowed to be deferred for a quarter or half year after the rent became legally due (act of 1883, s. 4). The landlord may distrain in person or may employ a certificated bailiff (Law of Distress Amendment Act 1888, s. 7). An uncertificated person levying a distress is liable to a fine of £10, without prejudice to his civil liability (Law of Distress Amendment Act 1895, s. 2). The seizure must not be excessive (statute of Henry III., 1267); but enough must be taken to satisfy the claim, for the landlord cannot distrain twice for the same rent where he could have taken sufficient in the first instance. After being seized, the goods must be impounded (Distress for Rent Act 1707, s. 10; and see the statute of 1690, s. 3, on impounding of corn, straw, hay; the Distress for Rent Act 1737, s. 8, on impounding of growing crops; and the statute of 1554 and the Cruelty to Animals Act 1849, s. 5, on impounding of cattle); and the landlord has a statutory power of sale (statute of 1690, s. 5). It is illegal to proceed with a distress if the tenant tenders the rent before the impounding; and a tenant has, by statute (1690, c. 5), five clear days’ grace, excluding the date of seizure, between impound in and sale. On the written request of the tenant, this period will he extended to fifteen days (Law of Distress Amendment Act 1888, s. 6). A tenant may, before sale, recover goods illegally dis trained by an action of replevin (L. Lat. replegiare, to redeem a thing taken by another). Where no rent was due to the dis trainer the tenant may recover by action double the value of the goods sold (statute 1690, s. 5); and summary remedies for the recovery of the property have been created by modern enactments (Law of Distress Amendment Act 1895, s. 4, on distress of privileged goods; Agricultural Holdings Act 1883, s. 46). Where rent was due, but the distress was irregular, the tenant can only recover special damage (Distress for Rent Act 1737, s. 19).
Goods taken under an execution (q.v.) are not removable till one year’s rent has been paid to the landlord (Landlord and Tenant Act 1709).
The landlord has, besides distress, his ordinary remedy by action. In addition, special statutory remedies are given in the case of tenants holding over after the expiration of their tenancy. By the Distress for Rent Act 1737 any tenant giving notice to quit, and holding over, is liable to pay double rent for such time as he continues in possession (see further under Ejectment).
Ireland.—The main differences between Irish and English law have been caused by legislation (see Ejectment; Landlord and Tenant).
Scotland.—Rent is properly the payment made by tenant to landlord for the use of lands held under lease (see Landlord and Tenant). In agricultural tenancies the legal terms for the payment of rent are at Whitsunday after the crop has been shown, and at Martinmas after it has been reaped. But a landlord and tenant may substitute conventional terms of payment, either anticipating (fore, or forehand rent) or postponing (back, or backhand rent) the legal term. The rent paid by vassal to superior is called feu-duty (see Feu). Its nearest English equivalent is the fee farm rent. The remedy of distress does not exist in Scots law. Rents are recovered (i) by summary diligence, proceeding on a clause, in the lease, of consent to registration for execution; (ii) by an ordinary petitory action; (iii) by an action of “maills and duties” (the rents of an estate in money or grain: “maills” was a coin at one time-current in Scotland) in the Sheriff Court or the Court of Session; and (iv) in non-agricultural tenancies by procedure under the right of hypothec, where that still exists; the right of hypothec over land exceeding 2 acres in extent let for agriculture or pasture was abolished as from November 11, 1881 (see Hypothec); (v) by action of removing (see Ejectment). Arrears of rent prescribe in five years from the time of the tenant’s removal from the land.
Labour or service rents were at one time very frequent in Scotland. The events of 1715 and 1745 showed the vast influence over the tenantry that the great proprietors acquired by such means. Accordingly acts of 1716 anti) 1746 provided for the commutation of services into money rents. Such services may still be created by agreement, subject to the summary power of commutation by the sheriff given by the Conveyancing Act 1874 (§§ 20, 21). “ In the more remote parts of Scotland it is understood that there still exist customary returns in produce of various kinds, which being regulated by the usa e of the district or of the barony or estate cannot be comprehend id under any general rule” (Hunter, Landlord and Tenant, ii. 298). Up to 1848 or 1850 there existed in Scotland “steelbow” leases-analogous to the chetel de fer of French law (see Landlord and Tenant)—by which the landlord stocked the farm with corn, cattle, implements, &c., the tenant returning similar articles at the expiration of his tenancy and paying in addition to the ordinary rent a steelbow rent of 5% on the value of the stock.
As to the rent of apartments, &c., see Lodger and Lodgings.
United States.—The law is in general accordance with that of England. The tendency of modern state legislation is unfavourable to the continuance of distress as a remedy. In the New England states, attachment on mesne process has, to a large extent, superseded it. In New York and Missouri it has been abolished by statute; in Mississippi the landlord has a claim for one year’s rent on goods seized under an execution and a lien on the growing crop. In Ohio, Tennessee and Alabama it is not recognized, but in Ohio the landlord has a. share in the growing crops in preference to the execution creditor. The legislatures of nearly all the states agree with the law of England as to the exemption from distress of household goods, wearing apparel, &c. (see Dillon’s Laws and Jurisprudence of England and America, pp. 360, 361; also Homestead). As to the rent of apartments, &c., see Lodger and Lodgings. Fee farm rents exist in some states, like Pennsylvania, which have not adopted the statute of Quia Emptores as a part of their common law (Washburn’s Real Property, ii. 252).
Other Laws.—Under the French Code Civil (art. 2102) the landlord is a privileged creditor for his rent. If the lease is by authentic act, or under private signature for a fixed term, he has a right over the year’s harvest and produce, the furniture of the house and everything employed to keep it up, and (if a farm) to work it, in order to satisfy all rent due up to the end of the term. If the lease is not.by authentic act nor for a specified term, the landlord’s claim is limited to the current year and the year next following (see law of 12th Feb. 1872). The goods of a sub-lessee are protected: and goods bailed or deposited with the tenant are in general not
