premises, this would justify the landlord in so doing; but it has now been decided otherwise on account of an old statute of the reign of Richard II. (h), which enacts as follows: "And also the king enjoineth that none from henceforth make entry into any lands and tenements but in case where entry is given by law, and in such case not with strong hand nor with multitude of people, but only on lawful, peaceable, and easy manner. And if any man from henceforth do to the contrary and thereof be duly convicted, he shall be punished by imprisonment of his body and thereof be ransomed at the king's will." On this statute it has been recently held that any leave and licence to break and enter premises is illegal, and that under any circumstances any forcible ejection by the act of the party is illegal, and the person so ejecting is guilty of a trespass (i).

tenant.

It is provided by statute (k) that if a tenant fraudu- Landlord may follow goods lently or clandestinely removes his goods after rent clandestinely has become due, in order to avoid their being seized in removed by a distress, the landlord may, if there is not a sufficient amount of other distrainable property left, within thirty days follow and distrain on the goods if they have not been sold bonâ fide for value, and without notice in the meantime, and a penalty for such an act may be recovered of double the value of the goods.

Manner of making a

The manner of making a distress is as follows:The landlord either personally or by his bailiff (who distress." need not necessarily be authorised by writing) enters and makes a seizure (any time between sunrise and

(h) 5 Rich. II., st. 1, c. 8.

(i) Edridge v. Hawkes or Edwick v. Hawkes or Edridge v. Hawker, L. R. 18 Ch. D. 199; 50 L. J. Ch. 577; 29 W. R. 913. Beddall v. Maitland, L. R. 17 Ch. D. 174; 50 L. J. Ch. 401; 29 W. R. 484. See the statute of Richard II. and the decision in Edridge v. Hawkes more fully discussed in the author's "Concise Treatise on the Law of Bills of Sale," published in 1882.

(k) 11 Geo. 2, c. 19, ss. I, 2.

A landlord may distrain after expira

tion of lease;

and an exe

istrator may distrain.

sunset), by announcing that he there and then distrains. He than makes an inventory of the furniture and goods, and leaves the same, with a written notice of the amount of rent due and of the things distrained, on the premises; after five days from making the distress the chattels are appraised by two appraisers and then sold, and any balance beyond the rent and expenses is afterwards paid to the owner.

A landlord can, if his title still continues, and the tenant is still in possession, distrain for rent after the expiration of his lease (1). An executor or adminis

cutor or admin- trator of any lessor may distrain for rent as his testator or intestate might have done, but such distress must be within six calendar months after the determination of the term or lease (m).

The Six
Carpenters'
Case.

The effect of

The well-known case called "The Six Carpenters' Case" (n) decides the point that where an authority or power is given to a person by the law, and such authority or power is abused by such person, he becomes a trespasser ab initio, and a distress being such an authority or power, it followed from the above decision that if there was any irregularity in making the distress, the distrainor was from the moment of this case as to distraining a trespasser. This hardship has been remedied by statute (0), which provides that if any rent is justly due, in the case of irregularity the distrainor is not to be a trespasser ab initio. But if a landlord is not merely guilty of some irregularity, but distrains in an unauthorized way, he is then a trespasser from the commencement; and if he makes an excessive distress, an action may be brought against him for so doing. If the tenant tenders (p) the amount

a distress now
altered by
II Geo. 2,

c. 19, s. 19.

(1) 8 Anne, c. 14, s. 6.

(m) 3 & 4 Wm. 4, c. 42, ss. 37, 38.
(n) I S. L. C. 143; 8 Coke, 146 a.

(0) 11 Geo. 2, c. 19, 8. 19.

(p) See as to a tender, post, ch. viii. pp. 228-232.

makes a dis

of the rent, this will make the distress tortious, and Tender of rent although a warrant has been delivered to a broker, tress tortious. a tender without expenses is good before the distress is put in; if a tender is made after seizure, but before the impounding of the distress, it makes the detainer and not the original taking wrongful.

The usual proceeding on a wrongful distress is by Replevin. replevin, the first step in which is to enter into a replevin bond before the registrar of the district county court with two sureties; and on this being entered into the goods are re-delivered to the owner, who subsequently has to commence an action to try the validity of the distress, and if it goes against him he has to return the goods to the distrainor (q).

dies of a land

and under
15 & 16 Vict.

Beyond his remedy to recover rent by the summary Other remeprocess of distress, the landlord has another remedy, lord besides viz., by simply bringing an action to recover it, and distress. besides this he may also proceed, on the condition of re-entry, to eject his tenant (r). At common law, Action of ejectment at before commencing an action of ejectment for non- common law. payment of rent, it was necessary to make a demand for the rent at sunset on the last day limited for pay- c. 76, s. 210. ment of the rent; this demand, which was essential, being a great inconvenience, it was provided by the Common Law Procedure Act, 1852 (s), that if half a year's rent is in arrear and there is no sufficient distress to be found upon the premises, the landlord may bring ejectment without the necessity of making any previous demand. If half a year's rent is not due, or there is a sufficient distress on the premises, it will be observed that this provision is inapplicable, and if ejectment is resorted to it must be as at the

(q) See hereon Indermaur's Manual of Practice, 47, note (d).

(r) This subject is unaffected by sect. 14 of the Conveyancing Act, 1881 (44 & 45 Vict. c. 41), which provision should, however, be referred to on the general subject of forfeiture by tenants. See post, p. 74. (8) 15 & 16 Vict. c. 76, s. 210.

Amount of

entitled to sue and distrain for.

common law, quite irrespective of the statute, with the formality of a demand.

A landlord may sue for and recover against the land rent landlord six years' rent, and if the demise be under seal, though he has no claim against the land beyond the six years, yet he has a right of action against the person for the full period of twenty years (t). A landlord may distrain for six years' rent, and if he does so before the goods are taken in execution for a debt, he has a right to the full six years' rent out of the goods notwithstanding the execution; and in the case of the Has a right goods on the demised premises being taken in execution.

against an execution creditor for one year's

rent.

Also in the case of

before he has distrained, he has even then a right to be paid one year's rent (if so much is due) before the goods are removed under the execution, and the sheriff is empowered to levy out of the goods and pay the execution creditor not only the amount of the execution but also such one year's rent which he has had to pay the landlord (u). The landlord has no right as against an execution creditor to more than the one year's rent, although more may be due to him, if the execution has been levied before he has made any distress for his rent (x).

In the case of bankruptcy also a landlord has an bankruptcy. advantage over other creditors to the extent of one year's rent, it being provided by the Bankruptcy Act, 1869 (y), that "the landlord or other person to whom any rent is due from the bankrupt may at any time, either before or after the commencement of the bankruptcy, distrain upon the goods or effects of the bankrupt for the rent due to him from the bankrupt, with this

(t) 3 & 4 Wm. 4, c. 27, s. 42; 3 & 4 Wm. 4, c. 42, s. 3. See Greenwood's Real Property Statutes, 91-95. Sect. I of 37 & 38 Vict. c. 57, makes no difference in what is above stated, for it does not apply as between landlord and tenant as such. Ibid. 9.

limitation, that if such distress be levied after the commencement of the bankruptcy, it shall be available only for one year's rent accrued due prior to the date of the order of adjudication; but the landlord or other person to whom the rent may be due from the bankrupt may prove under the bankruptcy for the overplus due. for which the distress may not have been available" (z).

trustee may

as onerous

property.

If, during the continuance of a lease, the lessee be- On bankruptcy comes bankrupt, the position of his landlord for the disclaim lease remainder of the term is that the trustee in bankruptcy may take to the lease and hold it or deal with it generally for the benefit of the creditors, or may disclaim it, as being onerous property, in which case the lease will be deemed determined from the date of the order of adjudication, and the landlord may then prove against the bankrupt's estate for any injury or loss caused him by such disclaimer (a). The landlord may make an application in writing to the trustee to decide whether or not he will disclaim; and if the trustee does not then disclaim within twenty-eight days, or such further time as may be allowed by the Bankruptcy Court having jurisdiction, he cannot afterwards do so (b). A disclaimer by the trustee in bankruptcy of Effect of a lease or other onerous property of the bankrupt, operates as a surrender only so far as is necessary to relieve the bankrupt and his estate and the trustee from liability, and does not otherwise affect the rights or liabilities of third parties in relation to the property disclaimed. If, for instance, the bankrupt has granted an underlease of property demised to him, a disclaimer of the original lease by his trustee in bankruptcy does not affect the right of the lessor to distrain on the property for the rent reserved by the original lease, and to re-enter for breach of the lessee's covenants in

(z) Sect. 34.

(a) 32 & 33 Vict c. 71, s. 23.

(b) Ibid. s. 24. These provisions as to disclaimer do not only apply to the relation of landlord and tenant, but to all cases of onerous property.

disclaimer.