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CHAP. I.

Of the Redress of Private Wrongs

BY THE

MERE ACT OF THE PARTIES.

THE statutes which respect the remedies for the re- Book III. dress of civil injuries or private wrongs, are next in order; and obviously follow those which have been stated in the two preceding parts of this digest, which were conversant about the rights of persons in their various characters, capacities, and relations.

$1.

Beasts of the

distress.

As to the remedy of distress considered with relation to the things which may be distrained: It is a provision plough, &c. of the 51. Hen. 3. st. 4 E. & I. that no man of religion, exempted from nor other, shall be distrained by his beasts that gain his 51. H n.3.st.4. land, nor by his sheep, for the king's debt, nor the debt E. & 1. of any other man, nor other cause, but until they can find another distress sufficient; except impounding of beasts that a man findeth in his ground damage feasant. And the

c. 12 E. & I.

c. 5. s. 3. Eng. 7 W. 3. c. 92.

28. Edw. 1. st. 3. c. 12. E. & I. also exempts beasts of 28 Edw.1. st.5. the plough from distress for the king's debt, so long as a man may find another. By the 2 W. & M. st. 1. c. 5. 2 W. & M. st. 1. s. 3. Eng. every person having rent arrear upon any demise, lease or contract, may seize and secure any sheaves s. 4 & 5. Ir. or cocks of corn, or corn loose or in the straw, or hay lying or being in any barn or granary, or upon any hovel, &c may be stack or rick, or otherwise upon any part of the land or ground charged with such rent; and lock up or detain the same in the place where it shall be found, until it

YOL. II.

B

shall

Corn in sheaves,

distrained.

136909

Corn &c. growdistrained.

shall be replevied (as by s. 2. post) [*and in default of so replevying, may sell the same after appraisement] so as it be not removed to the damage of the owner, but kept where it shall be found till it be replevied or sold. The 7 W. 3. c. 22. Ir. contains similar clauses, (s. 4 & 5.) with such variation only as is noted in the margin. The 11 11 Geo. 2.c.19. Geo. 2. c. 19. s. 8. Eng. further provides, that every s. 8. Eng. lessor or landlord, or his steward, bailiff, or other empowered by him, may take as a distress for rent, all ing may be also sorts of corn and grass, hops, roots, fruits, pulse, or other product, growing on any part of the estate so holden; and cut, gather, make, cure, carry, and lay up, when ripe, in the barns or other place on the premises; and in case there shall be no barn or proper place on the premises, then in any other barn, &c. which such lessor, &c. shall procure for the purpose, as near as may be to the premises; and in convenient time, appraise, sell, or otherwise dispose of the same, as other goods may be distrained and disposed of; the appraisement thereof to be taken when cut, &c. and not before. Provided (s. 9.) that notice of the place where the goods so distrained shall be deposited, shall, within a week after the lodging thereof, be given to such lessee or tenant, or left at the last place of his abode; and if before such distress shall be ripe and cut, cured or gathered, the tenant, his executors, &c. shall pay the rent in arrear, with the costs of such distress, then upon such payment, or lawful tender thereof, such distress shall cease, and the corn, &c. so distrained shall be delivered up. The tenantry acts of Ireland do not contain any provisions similar to those of the 11 Geo. 2. c. 19. s. 8 & 9. Eng. With respect to the several kinds of rent for which may be distrain- the remedy of distress may be resorted to: the ed for. 4 Geo 2. c. 28. s. 5. Eng. provides, that every person, s. 5. Eng. &c. shall have the like remedy by distress, and by impounding and selling the same, in cases of rents-seck,

3.9.

Proviso.

Rents-seck, &c.

4 Geo. 2. c. 28.

11 Ann. c. 2. s. 7. Ir.

rents

*Instead of the words within the crotche's, the 7 W. 3. c. 12. s. 4. Ir. provides, that in case such distress shall not be replevied or owned within eight days next after the taking thereof, then the same to be appraised and sold according to law,

rents of assize, and chief rents, as in case of rent reserved upon lease: which is also the provision of the 11 Ann, c. 2. s. 7. Ir.

be driven out of

52 Hen. 3. c. 4 E. & I.

E. & l.

8. 2.

Foundage limit

Next as to the disposal of the distress: It is enacted Distress not to by the 52 Hen. 3. c. 4. E. & I. (which was confirmed by the county. the 3 Edw. 1. c. 16. E. & I.) that none shall cause any distress to be driven out of the county; and that if any 3 Edw. 1. c.16. neighbour shall do so to another, of his own authority, and without judgment, he shall be punished by redemption; but if the lord so do against his tenant, he shall be grievously punished by amercement. And by the 1 & 2 Ph. & M. c. 12. s. . Eng. no distress of cattle 1 & 2Ph. & M. c. 12. s. 1. Eng. shall be driven out of the hundred, [*rape, wapentake or ath] where such distresses shall be taken, except to Distance of a pound overt within the shire, not above 3 miles distant pound. from the place where the distress is taken. And no goods distrained for any cause at one time, shall be impounded in several places, whereby the owner shall be constrained to sue several replevins; upon pain that every person offending shall forfeit to the party grieved 100s. and treble damages. And by s. 2. no person shall take in pound or poundage of any distress above 4d. ; and where less hath been used there to take less; upon pain of £5. ed. to be paid to the party grieved, besides such money as he shall take above 4d. The 10 Car. 1. st. 2. c. 25. Ir. 10 Car. 1. st. 3 contains corresponding provisions. By the 2 W. & M. c. 25 Ir. st. 1. c. 5. s. 2. Eng. where goods shall be distrained for c. 5. s. 2. Eng. rent due upon any lease or contract, and the tenant or owner of the goods shall not within 5 days after such of distress. distress, and notice thereof, with the cause of such taking, left at the mansion-house or other most notorious place of the premises charged with the rent, replevy the same; the person distraining may, with the sheriff or under sheriff of the county, or with the constable of the hundred, parish, or place, where the distress shall be taken, cause the distress to be appraised by 2 sworn appraisers, whom such sheriffs, &c. shall swear to appraise them truly; and after such appraisement may sell the same towards satisfaction of the rent, and the charges of the distress, &c. leaving the overplus, if any, in the hands

B 2

*"Hundred or barony" in the 10 Car. 1. st. 2. c. 25. s. 1. Ir.

2 W. & M.st.1

Appraisement

Ir.

10 & 11 Car. 1. c. 7. s. 2. Ir.

hands of the sheriff, &c. for the owners use.

By the

18 Edw.4.c.1. 18 Edw. 4. c. 1. Ir. as explained by the 10 & 11 Car. I. c. 7. s. 2. Ir. the appraisement of distresses made by any tenant in fee, or of any estate of freehold, or for years, or guardian in socage, or tenant by elegit, statute merchant, or statute staple, is directed to be within 8 days after the taking, by 4 or more honest and discreet persons of the parish (as was used to be done by 4 per sons of the lordship, between very lord and very tenant); the oath to be administered by the parties distraining, or by their seneschals, bailiff or receiver. And if he from whom it is taken do not come in within 8 days after the presentment, and pay or make agreement for his duty, the distress may be taken, as it is appraised, for the rent and damages; if the distress be above the rent, the surplus to be restored; if deficient, the tenant to be dis

s. 6. lr.

8 Geo. 1. c. 2. trained again. But the 8 Geo. 1. c. 2. s. 6. Ir. provides, that it shall be lawful to appraise any goods that shall be taken by way of distress for rent, duties, or services, which by law are liable to be appraised, by 3 or more honest and discreet persons of the barony where such distress shall be taken; and that the landlord, his steward, bailiff, agent or receiver, may and shall administer an oath to such persons, that they will according to the best of their judgment, skill, and knowledge, justly and indifferently value and appraise the same; which appraisement shall be as effectual as if made in pursuance 25 Geo. 2. c.13. of any former law. And the 25 Geo. 2. c. 13. s. 5. Ir. recites, that the manner in which rent-services, feefarm rents, or rent charges, have been often disposed of, have occasioned troublesome suits; and enacts that all distresses lawfully taken for any such rent or arrears of rent shall, unless redeemed within 8 days after the same shall be distrained, be sold by public cant to the highest and fairest bidder, at such time or times, and at such convenient place or places, as the person distraining, his agent or bailiff, shall appoint; such person, &c. after default made in redeeming such distress within the time aforesaid, first causing notice in writing of the

s. 5. Ir.

Distress if not

redeemed in 3

days, sold after 6 days notice.

place

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