Tenants law: a treatise of great use, for tenants and farmers of all kinds, and all other persons whatsoever. Wherein the several natures, differences and kinds of tenures and tenants are discussed, and several cases in the law touching leases, rents, distresses, replevins, and other accidents between landlord and tenant, and tenant and tenant between themselves and others; especially such who have suffered by the late conflagration in the city of London. The second edition. By R.T. Gent.

CHAP. IV. Of Corn sown, who shall have the Crop of Estovers, and Trees blown down; of Di∣stresses, What things may be distreyned, and how used; who may take a Distress, for what cause, when, and where.

IT is a usual saying, and generally received opinion, that he that Sows must Reap: but as there is no general rule without some exception; so this holds not always, that he that Sows shall Reap.

But touching the Sowing of Corn; if the Tenant be outed, or his term ends before it be ripe, who shall have the Corn I have already set down in the first Chapter, under the Title of Tenant at Will: sor if a Tenant at Will Sowe his Land, and the Landlord put him out before the Corn be ripe, he shall have liberty to Reap and carry away his Corn, be∣cause

he knew not when his Land∣lord would put him out.

But it is contrary with a Tenant who hath a Lease for years: for if his Lease be out before the Corn be ripe, his Landlord shall have it; because he knew the end of his Lease: where∣fore if he Sowed, it is in his own wrong, unless there be a Covenant in his Lease between the Lessor and him, that he shall have his way-going Crop.

But if a Tenant at Will, set Roots, or Sowe Hemp or Flax, or any thing that brings in any yearly profit, if after the planting the Lessor out him, or if the Lessor dye, yet the Te∣nant or his Executors shall have the Crop. But it is otherwise if he plant young Fruit-Trees, or other young Trees, as Oaks, Ashes, or Elmes; or Sow the ground with Acorns; In this case if the Lessor out him, he shall have none of these, be∣cause these yeeld no yearly profit at present.

If a Tenant for life Soweth the ground, and dye before the Crop be ripe, his Executors shall have it; and so they shall have Grass if it

be cut, but if it be unmown they shall not have it, for that is part of the In∣heritance till it be severed.

Every Tenant that hath an Estate incertain, shall have the corn sown by him; though he be outed before it be ripe.

If a man be seized in Lan Jure uxoris, and Sow this Land, and dye before the Corn be ripe; his Execu∣tors shall have the Crop: but if they be Joynt-tenants of Lands, and the Husband soweth the ground and dyeth, the Wife shall then have the Crop.

But if a Woman who holds Land, Durante viduitate sua, while she continues her Widdow-hood, and Sows the ground, and marries a Husband before the Corn be ripe; here the Lessor shall have the Corn, because her Estate ends by her own act.

If a man lets a Lease of his Wifes Land, she not joyning with him; this Lease is void after his death: but if the Lessee have Sown the Land, he shall reap the Crop.

A Tenant holds by Lease, and the Land is recovered against the Land∣lord

by a title Paramount; in this ••ase if the Tenant have Sown the Land, he that hath recovered it shall have the Crop, if it be not reaped be∣fore Judgment.

There is three kinds of Estovers in the Law, which is incident to the e∣state of every Tenant, whether it be for life or years.

House-boote, of which is two kinds; the one to repair the Houses, the other to burn, which is called Fire∣boote.

Then there is Estovers, called Plough-boote; that is, stuffe to mend the Tenants Ploughs, Carts, Har∣rows, Wayns, and making Rakes and Forks for getting in his Hay and Corn.

Thirdly, There is another kind of Estovers, called Hedge-boote; this is Timber and wood for making Gates, and Styles; and Boughs and Bushes for mending and repairing Hedges, and Fences.

So there is Estoverium edificandi & ardendi, House-boote.

Estoverium arandis, or Plough∣boote.

Estoverium Claudendi, or Hedge∣boote.

Estover is a word something harsh in sound, being unusually heard in the Ears of Tenants; but Boote i•• well known unto them.

The one is Norman, the other Saxon; and both have the same sig∣nification, viz. an allowance, Com∣pensation, or Satisfaction. Any of all these Bootes, a Tenant may take with∣out assignment of the Landlord, un∣less he be by the Landlord restrey∣ned by special covenant in his Lease; which is very usual amongst many Landlords, especially if the Farm be any thing considerable; then they commonly limit the Tenant how much House-boote, or Plough-boote, or Hedge-boote, he may take without assignment; and how much by as∣signment.

If a Tenant for life or years, cut down Trees, or pull down Houses, or suffer them to fall down; the Les∣sor shall have the Trees, and Tim∣ber, of the said Houses: for the Lessee had them only as things an∣nexed to the Land; and this severance will not give him a greater estate in them.

The Landlord shall likewise have

Windsals; that is, Timber-Trees blown down by Wind and Tempest, because they are parcel of his In∣heritance; so that the Tenant for life nor years cannot have them, unlesse it be to build withal where Houses are in decay. But if they be Pollards without Timber, the Tenant shall have such when they are blown down.

Distresses is a Law of custome; ••hat is, if Rent be in Arrear and un∣••aid, the Landlord may take a lawful ••istress, and that he shall put in ••ound Overt, there to remain untill 〈◊〉〈◊〉 be satisfied of what he distreyned 〈◊〉〈◊〉.

So that if a Landlord distreyn the ••attel for Rent, and put them in a ••ound Overt, and the Beasts dye ••ere for lack of meat, it is at the 〈◊〉〈◊〉 of him that ow'd the Beasts, and ••ot of him that distreyned: for in 〈◊〉〈◊〉 that distreyned there can be as∣••••gned no desault, but the default was the other, because the Rent was ••••paid.

Now a distress must be made of 〈◊〉〈◊〉 a thing wherein some body 〈◊〉〈◊〉 a certain and valuable Pro∣perty;

therefore such things as 〈◊〉〈◊〉 Ferae natura, cannot be distreyned neither can any one distreyn a Hor•••• if any body be on the back of him nor any thing which a man holds i•• his hand, or carrieth about him, a•••• nexed to his body.

And although the Law be, that Landlord may distreyn any thi•••• that he finds Levant or Couchant u•• on the premises for his Rent behin•• whose Goods or Chattels soever be, and may detain the same u•• till his Rent be satisfied; yet th•• general Rule hath some Restrict on and Limitation, for there are sev∣ral things whereof a Distress cann•••• be taken.

Such things as are for the maint∣nance and benefit of trades, c••••∣not be distreyned for Rent; as Horse in a Smith Shop, nor Horse in an Inn cannot be distrey∣ed for the Rent thereof; nor 〈◊〉〈◊〉 Materials in a Weavers Shop, 〈◊〉〈◊〉 the making of Cloth, nor Cloth Garments in a Taylers Shop, 〈◊〉〈◊〉 sacks of Corn, nor Meal in a Mill the Rent of the Mill, nor any 〈◊〉〈◊〉 that the Tenant hath distreyned

damage feasant, for that is in the cu∣stody of the Law.

Likewise Oxen of the Plough may not be distreyned, nor a Mil∣stone, though it be raised to be picked, so long as it lies upon the o∣ther Stone.

Neither may a Distress be taken of Sheep, if there be a sufficient Distress ••esides.

Neither can a man sever Horses ••oyned together, or to a Cart.

Likewise Victuals, nor Sheafes 〈◊〉〈◊〉 Shocks of Corn cannot be di∣••••reyned: But Carts or Waggons ••aded with Corn may be distrey∣••ed either for Rent, or damage fea∣••••nts.

No mans Tools wherewith he ••orks at his Trade shall be distrey∣••ed, as the Carpenters Axe, or a ••••collars Books, &c.

Neither can any thing which is fix∣•••• to the Free-hold be distreyned, as ••••rnaces, Coppers, or Fats fixed for ••••ers or Brewers, (although the ••••nant may remove them during 〈◊〉〈◊〉 term) nor the Windows or Doors a House, while they are upon Hinges. But if they be removed

off from the Hinges, they may be di∣streyned.

The 〈◊〉〈◊〉 cannot distrey•••••• Tab•••••• 〈◊〉〈◊〉 the House•• of 〈◊〉〈◊〉 Tenant, 〈…〉〈…〉 which can∣not be 〈◊〉〈◊〉 in an Assize; nei∣ther can any thing be distreyned of which the Sheriff cannot mak•• a Replevin, or that cannot be r••∣stored again in as good a conditi∣on as it was when it was distrey∣ned.

But a man may distreyn the Bea•••• of a stranger (that come by escap•• for Rent, though they have not be•••• Levant and Couchant upon 〈◊〉〈◊〉 ground, according to Cook. 1. par. 〈◊〉〈◊〉 f. 47.

The Lord of a Leet may sell distress taken for an Amerciam•• in his Leet, as the King may 〈◊〉〈◊〉 a distress, because it is the Ki•••• Court.

If a man distreyn Goods or 〈◊〉〈◊〉, he may put them where he w∣either in a pound Covert, or Ove•• but if they take any harm, he 〈◊〉〈◊〉 answer for them.

If they be living Cattel, they ou•• to be put in a common Pound,

〈◊〉〈◊〉 in some open place, as in his own ••ard or Close that distreyned them, 〈◊〉〈◊〉 in some others by his consent; so ••••at the owner may come lawfully to ••eed them: And the owner of the Cattel must have notice where they 〈◊〉〈◊〉, if they be not in a common ••ound; and then if they dye for 〈◊〉〈◊〉 of meat, it is the owners fault 〈◊〉〈◊〉 as it is said before,) but if they be a Pound covert, or out of the ••ounty, and dye for want of meat, 〈◊〉〈◊〉 he that distreyned them shall ••ake satisfaction for them.

Cattel taken damage feasant, may 〈◊〉〈◊〉 impounded in the same Pound, ••here they are damage feasant; but ••oods or Cattel taken for other ••••ings may not.

No man ought to drive a distress ••ut of the County where it is taken, or out of the hundred, but to a ••ound Overt within three miles; nei∣••••er may a distress be impounded several places; nor above four 〈◊〉〈◊〉 taken for the Fees of impound∣••••g one whole distress, on pain of five ••ound.

If a man distreyn Beasts damage ••••asant, and put them in the Pound

Overt, within the same County, not above three miles out of the hun∣dred; and the owner suffers the Beasts to dye for lack of meat, the loss is his own, and he that distrey∣ned them, may be at liberty to bring his Action for the trespass if he will; and if it be not a lawful pound, then it is at the peril of him that di∣streyned them; and so it is if he drive them óut of the Shire, and they dye there.

If the owner of the Cattel ten∣der amends to him that distreyned, and he refuse it, yet the owner may not take his Cattel out of the pound; for he may not be his own Judge: and if he do, a Writ De parco fracto for breaking the pound lieth against him; but he must sue a Replevin to have his Cattel delivered him out of the pound, and afterwards plead his tender of amends, of which the Jury must end the controversie.

If the owner of the Cattel pro∣cure a Replevin to deliver them, and he that distreyned them resist it, and will not deliver them; in this case if they dye after for want of meat, it is at the peril of him that distrey∣ned,

and the owner shall recover dam∣ages against him in an Action upon the Statute for not obeying the Kings Writ.

If a man sends his Servant to take a distress for a Rent or Service, who puts it in the pound; if the ow∣ner of the Beasts or a stranger take them out, I shall have an Action De parco fracto, for breaking of the pound.

And if one distreyn Cattel, and pound them in another mans Close with his consent, and the owner of the Cattel come and take them out; in this case he that made the distress shall have his Action for Pound∣breach; and the owner of the close, an Action of trespass for breaking of his Closs.

There be certain cases where a man may distreyn of common right, and where not of common right: a man may distreyn for Rent-Ser∣vice, Homage, Fealty, Escuage, Suit of Court, or for Rent reserved upon a gift in Tail, Lease for life, years or at Will, though there be no clause of distress in the Lease; be∣cause these distresses are of common right.

But for Debt, Accompt, Trespass, or for Reparations or the like, a man cannot distreyn, neither can any di∣stress be taken for any Services which are not certain, nor can be reduced or brought into any certainty. And upon an Avowry damages cannot be recovered, for that which neither hath certainty, nor can be reduced to certainty.

Nevertheless (although it be a Paradox) in some cases there may be a certainty in an incertainty: As for a man to hold of his Lord, to shear all his sheep depasturing within the Lords Mannor; and this is certain enough: although the Lord hath not always a certain number of sheep, but sometimes a greater number, and sometimes a lesser; yet this in∣certainty being reduced to the Manner which is certain, the Lord may distreyn for. And a distress is inseparably incident to every Service that may be reduced to cer∣tainty.

A man may not distreyn for Rent after the Lease is ended, nor out of the premises, except in some special cases; nor in the night, unless it be damage feasant.

But the Executors or Administra∣tors of him who had Lands in Fee, or Fee-tail, or-for life, may either have an Action of Debt against him that should pay it, or distreyn for it; and so may the Husband after the death of his wife, his Executors or Admi∣nistrators, and he which hath Rent for anothers life, for the Arrearages after his death.

A man puts Cattel into my pasture for a week, and afterwards I give him notice that I will keep them no lon∣ger, and he will not fetch them away; I may then distreyn them damage feasant.

If a man take Cattel damage feasant, and as he is driving them to Pound, they run into the Yard or House of the man that owes them, and he refuses to let them out again; he that distreyned them may have a Writ of Rescous a∣gainst the owner of the Beasts for so doing.

If a Landlord come to distreyn for Rent, and see the Cattel, and the Lessee or his Servants drive them out of his Fee; he cannot have a Writ of Rescous, because the Cattel

were not in his possession: but he may follow after them, and di∣streyn them in another mans ground it being for Rent, but not for da∣mage feasant; for they must be ta∣ken damage feasant; that is, doing damages.

If a man distreyn goods, and de∣clare not the cause or reason where∣fore he doth it, if they be put in •• House, the owner may break the House, and take them out.

Or if a man distreyn goods with∣out cause, the owner may rescu•• them; but if they be pounded, b•• cannot break the pound and tak•• them out, because they are then i•• the custody of the Law.

But if he find the pound-door un∣lockt, he may take them out.

Although there be a general pro∣hibition in the Laws of England, tha•• it shall not be lawful for any man to enter upon the Free-hold or Possessi∣on of another, without permission and Authority of the owner, or of the Law; yet this is not without excep∣tion.

For if a man drive Beasts along the High-way, and the Beasts run into any Mans Corn or Grasse, and he that driveth them goeth af∣ter them into the Grounds to fetch them out, he may justifie that en∣try into the Grounds to fetch them out.

If a man make a Feoffment and that in Fee by Indenture, reserving a Rent, he cannot distreyn for that Rent, unless a distress be expresly reserved; And if the Feoffment be made without an Indenture reserving Rent, that reservation is void in the Law. And the like Law is, where a gift in Tail, or a Lease for term of life is made, the remainder over in Fee reserving a Rent, that reservation is void in the Law.

Also if a man seized of Land for term of life granteth away his whole Estate reserving a Rent, that reser∣vation is void in the Law, without it be by Indenture: and if it be by In∣denture, he shall not distreyn for the Rent, without a clause of distress be reserved.

Also for Amerciaments in a Leet, the Lord may distreyn, although it be

in the High-way; but for Amercia∣ments in a Court-Baron, he canno•• distreyn; neither can he distreyn fo•• an Amerciament in the Leet, in place seized into the Kings hands fo•• the Kings Debt.

Also if a man make a Lease at Mi∣chaelmas, for a year, reserving a Re•••• payable at the Feasts of the Annunci∣ation of our Lady, and St Micha•••• the Arch-Angel; in this case he ma•• distreyn for the Rent due at our La∣dy-day, but not for the Rent due a Michaelmas, because the time is ex∣pired.

But if a man make a Lease at th•• Feast of Christmas, for to endure to the Feast of Christmas next follow∣ing, viz. for a year, reserving a Ren•• at the aforesaid Feasts of our Lady∣day and Michaelmas; In this case he shall distreyn for both the Rents as long as the term continues, that is to say, till the aforesaid Feast of Christ∣mas.

And if a man have Lands for term of life of J. N. and makes a Lease for terms of years, reser∣ving a Rent, the Rent is behind, and J. N. dyeth; there he shall not di∣streyn,

because his reversion is deter∣mined.

And if a Town or Parish be Amer∣ced, and the Neighbours by Assent, Assesse a certain Sum upon every In∣habitant; And agree, that if it be not paid by such a day, that certain persons thereunto assign'd shall di∣streyn; in this case the distress is lawful.

If there be Lord and Tenant, and if the Tenant do hold of the Lord by Fealty and Rent, and the Lord doth grant away the Fealty, and reserve the Rent, and the Tenant Attorneth; In this case he that was Lord may not distreyn for the Rent, for it is be∣come a Rent-Seck.

But if a man make a Gift in Tail to another, reserving Fealty and certain Rent, and after that he granteth away the Fealty, reser∣ving the Rent and the Reversion to himself; in this case he shall di∣streyn for the Rent, for the grant of the Fealty is void; for the Feal∣ty cannot be severed from the rever∣sion.

Also for Heriot-service the Lord may distreyn, but for Heriot-cu∣stome he cannot distreyn, but may Seize.

Also if a Rent be assigned to make a partition or assignment of Dower Egal, he or she to whom that Rent is assigned may distreyn. And in all these cases aforesaid, where a man may distreyn, he may not distreyn in the night, but for damage feasant, that is, where he finds Beasts doing hurt in his ground, he may distreyn them night or day when he finds them; but for Waste, Reparations, Accompts, or for Debts upon Con∣tracts, or such like, no man can law∣fully distreyn.

Notes

• See my Consul∣tam pacis, p. 83.
• Hern. l. of con. p. 239.
• Noys Max. p. 70.
• Cowel. Inst. p. 142.
• Estovers or Boote.
• Co. l: 4. 31.
• Distress?
• Dr. & St. l. 1 C. 5. p. 10.
• What can∣not be di∣streyned for Rent.
• Noys Max p. 124.
• Terms of the Law, titl. di∣stress.
• Cook. on Lit. f. 47.
• Cook. ibid.
• Cook ibid.
• Dr. & St. l 2 C. 27.
• Kitchin. f. 207.
• Co. 1. part. inst. p. 57. Rastal ti∣tle di∣stress. 11. Wingar. abr. p. 133.
• Dr. & St. l. 1. c. 27.
• Ibid.
• Ibid.
• Co. 1. par. Inst. f. 204, 205.
• Dr. & St. l. 2. C. 9.
• Noys Max p. 33.
• Co. 1. par. Inst. f. 161.
• Claytons Rep. p. 64. pl. 111.
• Dr. & St. l. 1. c. 16.
• Dr. & S. l. 2. c. ••.
• Ibid.
• Ibid.
• Ibid.
• Dr. & St. ibid.
• Ibid.
• Dr. & St. ibid. f. 75.