A distress must be made in the daytime, that is, between Distress must sunrise and sunset; and it lies upon the distrainor to show be made in daytime. that he is acting legally in this respect. A distress made in the night is a trespass, for which the tenant of the land may recover damages and the value of goods taken (c). Where a landlord after sunset took measures forcibly to prevent the removal of goods, in order that he might distrain them the next day, which the owner of the goods forbore to resist, it was held that the latter could not claim for a wrongful conversion and deprivation of the goods, because they remained in his possession and control until the distress was legally made (d). house. It is not lawful at common law to break into a house, Breaking into either through the outer door or otherwise, for the purpose of entering to distrain (e). It is lawful to open an outer door for that purpose in the usual way, by turning a key or latch; provided the door is fastened merely to keep it closed, and not to prevent people entering (f). An entry to distrain may be made through an open window; and a window partly opened may be opened wider for the purpose of entering (g); but it is not lawful for that purpose to open a closed window, though not fastened (h). · The same rule applies to buildings of all kinds, as stables, barns and outhouses; also to enclosures of land. It is not lawful to break open outer doors, windows, gates or fences to take a distress (i). Where a landlord and tenant occupied adjacent tenements, being tenants in common of the partition between them, it was held no trespass for the (c) Tutton v. Darke, 5 H. & N. 647; 29 L. J. Ex. 271; Blackburn, J., Attack v. Bramwell, 3 B. & S. 530; 32 L. J. Q. B. 150. "But for damage feasant one may distrain in the night, otherwise it may be the beasts will be gone before he can take them." Co. Lit. 142 a. (d) England v. Cowley, L. R. 8 Ex. 126; 42 L. J. Ex. 80; Martin, dissentiente. B., (e) Semayne's case, 5 Co. 92 a; 1 Smith's L. C. (f) Ryan v. Shilcock, 7 Ex. 72; 21 L. J. Ex. 55. (g) Crabtree v. Robinson, L. R. 15 Q. B. D. 312; 54 L. J. Q. B. 544. (h) Nash v. Lucas, L. R. 2 Q. B. 590; 8 B. & S. 531. (i) Co. Lit. 161 a; Brown v. Glen, 16 Q. B. 254; 20 L. J. Q. B. 205. Breaking inner doors. Taking possession of goods distrained. landlord to remove the partition, and that thus entering without trespass he might lawfully distrain (i).—In all cases of unlawful entry the distrainor is a trespasser ab initio ; the distress is void; the goods taken cannot be dealt with as a distress, or applied in discharge of the rent; and the tenant may recover the goods or their full value (j). By the statuto 11 Geo. II. c. 19, s. 7, a special power is given to break into any house, close or place, to take goods fraudulently removed from the demised premises to prevent distress (k). And it seems that a special power to break into the demised tenement may be acquired by express stipulation with the tenant (1).-After an entry has been lawfully made, inner doors and fastenings may be broken open, if necessary, in order to find goods distrainable (m). If a distrainor lawfully in possession of a distress is forcibly ejected, or if in his temporary absence, not having abandoned the distress, the house or premises are closed against him, he may lawfully break in to recover possession (n). Distress is made by the distrainor or his bailiff taking possession, actual or constructive, of the goods, upon the premises out of which the rent issues. Entering into a house and taking possession of some specific goods as a distress in the name of all the goods in the house is a good distress of all (o). And where the landlord prevented the removal of goods from the demised premises under a claim of distraining them there, it was held a sufficient taking possession (p). Where a bailiff entered upon the premises and gave a written notice that he had distrained the goods specified in the notice, it was held to be a sufficient taking (P) Wood v. Nunn, 5 Bing. 10; Cramer v. Mott, L. R. 5 Q. B. 357; 39 L. J. Q. B. 172. possession upon which to charge the landlord with an excessive distress (2). Where a landlord sent a bailiff to distrain for a sum of rent and costs of distress, which was paid by the tenant to prevent the distress, it was held that the landlord was estopped from denying that he had actually distrained, in an action for an excessive distress (r). of distress. At common law the landlord having taken a distress for Removal and rent was required to remove the goods off the demised impounding premises; and if he kept them there beyond a reasonable time for removal, he became a trespasser. He was further required to put them in a pound, that is, some fit and proper place for keeping the goods taken; but he was not allowed to impound them on the premises (s). He was not restricted to place or distance, and might cause much trouble to the tenant by distraining his cattle and impounding them in several and distant places; for remedy of which hardship the Statute of Marlebridge, 52 Hen. III. c. 4, provided, that "none from henceforth shall cause any distress that he hath taken to be driven out of the county where it was taken." The statute 1 & 2 P. & M. c. 12, s. 1, further provided, "that no distress of cattle shall be driven out of the hundred where such distress is taken, except it be to a pound overt within the same shire 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 shall be constrained to sue several replevies for the delivery of the said distress." The statute imposes a penalty, but does not render the distress void (t). Now by the statute 11 Geo. II. c. 19, s. 10, it is made Impounding (q) Swann v. Falmouth, 8 B. & C. 456. (r) Hutchins v. Scott, 2 M. & W. 809. (s) Griffin v. Scott, 2 Ld. Raym. 1426. (t) Gimbart v. Pelah, Stra. 1272; Woodcroft v. Thompson, 3 Lev. 48. on the premises. Public and private pound. lawful "for any person lawfully taking any distress for any kind of rent to impound or otherwise secure the distress so made, of what nature or kind soever it may be, in such place, or in such part of the premises chargeable with the rent, as shall be most fit and convenient for the impounding and securing such distress." Since this enactment it has become the general practice to impound goods distrained by securing them upon the premises; or, with the assent of the tenant, by leaving them as they stand upon the premises without any removal (e). The distrainor may lock up the goods in part of the premises, if necessary for their security; but he cannot lock up the whole premises to the exclusion of the tenant without his consent; if he cannot impound them safely upon the premises, he must impound them elsewhere (w). No separate charge for impounding can be made, where the distress is impounded on the premises (x). At common law pounds were distinguished as public and private. It was customary in manors to provide a public pound for common use, and to appoint a pound keeper. The duty of the pound keeper was to receive into the pound all distresses brought to him, chiefly cattle, but without any responsibility on his part for the taking or detaining; goods impounded being considered in custody of the law, whence they can be released only by the legal process of replevin, unless by consent of the distrainor (y). This public or manor pound was called a pound overt, that is, open of access, to which the owner of cattle impounded might come to find them and to feed them, and in which they remained at his risk. The private pound was that provided by the distrainor himself, to which the owner of (v) Washborn v. Black, 11 East, 405; Thomas v. Harries, 1 M. & G. 695. (w) Etherton v. Popplewell, 1 East, 139; Woods v. Durrant, 16 M. & W. 149; Smith v. Ashforth, 29 L. J. Ex. 259. (x) Child v. Chamberlain, 5 B. & Ad. 1049. (y) Badkin v. Powell, 2 Cowp. 476; Hawkins, J., Green v. Duckett, L. R. 11 Q. B. D. 280; 52 L. J. Q. B. 435. the distress had no access; in which, therefore, the distrainor kept cattle impounded at his own risk and cost (z). 66 In order to secure the feeding of cattle impounded it is Feeding impounded now provided by the statute 5 & 6 Will. IV. c. 59, that cattle. every person who shall impound any cattle or animal in any common pound, open pound, or close pound, or in any inclosed place is required to find, provide, and supply such cattle and animal daily with good and sufficient food," under a penalty of five shillings a day. It is further provided that he may recover from the owner of such cattle or animal, not exceeding double the value of the food supplied, by proceeding before a justice of the peace; or if he think fit, he may, after notice, sell the cattle or animal, and apply the proceeds of the sale in discharge of the value of the food, rendering the overplus, if any, to the owner. state of The distrainor is in all cases personally responsible that Liability of the pound used by him, whether public or private, is a fit distrainor for and proper place for keeping the distress; and he is liable pound. for loss of or damage to the distress caused by insufficiency or defects of the pound, as for the escape of cattle, or for putting cattle into a pound too small to hold them properly, or in such a bad condition that they become depreciated in value. But he would not be responsible if the distress escaped, died, or was stolen, without any default or negligence on his part; and he might then take another distress (a). distress. At common law a distress was kept impounded as a Sale of pledge until restored by replevin, or redeemed by payment; but it afforded no direct means of obtaining satisfaction. The statute 2 W. & M. sess. 1, c. 5, s. 2, first gave the means of obtaining satisfaction by sale of the goods distrained. After a preamble stating that "whereas the most ordinary and ready way for recovery of arrears of (2) Co. Lit. 47 b; Holt, C. J., Vaspor v. Edwards, 12 Mod. 664. (a) Vaspor v. Edwards, 12 Mod. 662; Wilder v. Speer, 8 A. & E. |