1911 Encyclopædia Britannica/Distress

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DISTRESS (from the O. Fr. destrece, destresse, from the past participle of the Lat. distringere, to pull apart, used in Late Lat. in the sense of to punish, hence to distrain), pressure, especially of sorrow, pain or ill-fortune. As a legal term, the action of distraining or distraint, the right which a landlord has of seizing the personal chattels of his tenant for non-payment of rent. Cattle damage feasant (doing damage or trespassing upon a neighbour’s land) may also be distrained, i.e. may be detained until satisfaction be rendered for injury they have done. The cattle or other animals thus distrained are a mere pledge in the hands of the injured person, who has only power to retain them until the owner appear to make satisfaction for the mischief they have done. “Distress damage feasant” is also applicable to inanimate things on the land if doing damage thereto or to its produce; things in actual use, however, are exempt. Such distress must be made during the actual trespass, and by whoever is aggrieved by the damage. Distress for rent was also at one time regarded as a mere pledge or security; but the remedy, having been found to be speedy and efficacious, was rendered more perfect by enactments allowing the thing taken to be sold. Blackstone notes that the law of distresses in this respect “has been greatly altered within a few years last past.” The legislature, in fact, converted an ancient right of personal redress into a powerful remedy for the exclusive benefit of a single class of creditors, viz. landlords. Now that the relation of landlord and tenant in England has come to be regarded as purely a matter of contract, the language of the law-books seems to be singularly inappropriate. The defaulting tenant is a “wrong-doer,” the landlord is the “injured party,”; any attempt to defeat the landlord’s remedy by carrying off distrainable goods is denounced as “fraudulent and knavish.” The operation of the law has, as we shall point out, been mitigated in some important respects, but it still remains an almost unique specimen of one-sided legislation.

At common law distress was said to be incident to rent service, and by particular reservation to rent charges; but by 4 Geo. II. c. 28 it was extended to rent seck, rents of assize and chief rents (see Rent). It is therefore a general remedy for rent certain in arrear. All personal chattels are distrainable with the following exceptions:—(1) things in which there can be no property, as animals ferae naturae; (2) ledgers, daybooks, title-deeds, &c.; (3) things delivered to a person following a public trade, as a horse sent to be shod, &c.; (4) things already in the custody of the law; (5) things which cannot be restored in as good a plight as when distrained, that is, perishable articles; (6) fixtures; (7) beasts of the plough and instruments of husbandry while there is other sufficient distress to be found; (8) instruments of a man’s trade or profession in actual use at the time the distress is made. If not in actual use they are only privileged in case there is other sufficient distress upon the premises. These exceptions, it will be seen, imply that the thing distrained is to be held as a pledge merely—not to be sold. They also imply that in general any chattels found on the land in question are to be available for the benefit of the landlord, whether they belong to the tenant or not. This principle worked with peculiar harshness in the case of lodgers, whose goods might be seized and sold for the payment of the rent due by their landlord to his superior landlord. By the Lodgers’ Goods Protection Act 1871, however, 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 has 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. By the Law of Distress Amendment Act 1908 this protection was extended to under tenants liable to pay rent by equal quarterly instalments, as well as to any person whatsoever who is not a tenant of the premises or any part thereof nor has any beneficial interest therein. The act, however, excludes certain goods, particularly goods belonging to the husband or wife of the tenant whose rent is in arrear, goods comprised in any bill of sale, hire purchase agreement or settlement made by the tenant, goods in the possession or disposition of a tenant by the consent and permission of the true owner under such circumstances as to make the tenant reputed owner, goods of the partner of an immediate tenant, and goods (not being goods of a lodger) upon premises where any trade or business is carried on in which both the immediate tenant and the under tenant have an interest. The act does not apply where an under tenancy has been created in breach of a covenant or agreement between the landlord and his immediate tenant. The Law of Distress Amendment Act 1888 also absolutely exempted from distress the tools and implements of trade and wearing apparel and bedding of a tenant and his family to the value of five pounds, and the Law of Distress Amendment Act 1895 gave power to a court of summary jurisdiction to direct that such goods, when distrained upon, should be restored if not sold, or, if sold, to order their value to be paid by the persons who levied the distress or directed it to be levied. Originally the landlord could only seize things actually on the premises, so that the remedy might be defeated by the things being taken away. But by an act of 1710, and by the Distress for Rent Act 1737, he may follow things fraudulently or clandestinely removed off the premises within thirty days after their removal, unless they have been in the meantime bona fide sold for a valuable consideration. The sixth exception mentioned above was held to extend to sheaves of corn; but by an act of 1690 corn, when reaped, as well as hay, was made subject to distress. That act was modified by the Landlord and Tenant Act 1851, under which growing crops seized by the sheriff and sold under an execution are liable to distress for rent which becomes due after the seizure and sale, if there is no other sufficient distress on the premises.

Excessive or disproportionate distress exposes the distrainer to an action, and any irregularity formerly made the proceedings void ab initio, so that the remedy was attended with considerable risk. The Distress for Rent Act 1737, before alluded to, in the interests of landlords, protected distresses for rent from the consequences of irregularity. In all cases of distress for rent, if the owner do not within five days (by the Law of Distress Amendment Act 1888, fifteen days, if the tenant make a request in writing to the person levying the distress and also give security for any additional cost that may be occasioned by such extension of time) replevy the same with sufficient security, the thing distrained may be sold towards satisfaction of the rent and charges, and the surplus, if any, must be returned to the owner. To “replevy” is when the person distrained upon applies to the proper authority (the registrar of the county court) to have the thing returned to his own possession, on giving security to try the right of taking it in an action of replevin.

Duties and penalties imposed by act of parliament (e.g. payment of rates and taxes) are sometimes enforced by distress.