124. A Bill concerning Rents and Distresses
Be it enacted by the General Assembly, that any person to whom rent is or shall be due upon a lease for life, may bring an action of debt for such rent in like manner as he might have done if the rent had been reserved or become due upon a lease for years. A landlord, by action on the case, may recover a reasonable satisfaction for the use and occupation of tenements held and enjoyed by another, although there be no agreement by deed between the parties; and if, on the trial of such action, any parol demise, or any agreement, not being by deed, whereby a certain rent was reserved, shall appear, the plaintiff shall not be therefore nonsuited, but may make use thereof, as evidence of the quantity of damage to be recovered. Where a landlord, having only an estate for life in tenements demised to another, shall die before or on the day whereon the rent is reserved payable, the executors, administrators or assigns of such landlord may, by an action on the case, recover from the undertenant the whole of the rent, if the death happened on the day it was payable, or, if the death happen before that day, such a part of the rent as is proportionable to the time the landlord lived of the next preceeding year, or other period in which the rent was growing due. Goods, which lying or being upon tenements demised shall have been taken in execution, unless it be for a debt due to the commonwealth, shall not be removed from thence, before the party, at whose suit the execution was sued out, shall pay or tender to the landlord, or to his agent, such sum of money, or quantity of tobacco, or other thing reserved, as at the time of the taking is or shall be due for the rent of the demised premises, so that it exceed not the rent of one year; and if the landlord or agent accept such year’s rent, or so much thereof as is due, the officer to whom the execution was directed shall proceed to levy and pay to the person who sued it out, not only the money or other thing thereby due, but also the rent so advanced. If a lessee for life, term of years, at will, or otherwise, fraudulently convey away his goods from the tenements to him demised, in order to prevent a distress for arrears of rent, the landlord to whom such rent is due, or any person by him for that purpose, lawfully empowered, may, within the space of thirty days after the conveying away, seize such goods, wheresoever they may be found, unless they shall before have been sold, with good faith, and for valuable consideration, to one who was not privy to the fraud, as a distress for the said arrears of rent, in the same manner as he might have done, if they had remained upon the demised premises, and upon the testimony of the landlord, or his agent, before a Justice of the Peace, that there is good cause to suspect the goods so fraudulently conveyed away to be deposited in any house, yard, or other inclosure, such Justice, at the request of the landlord, or his agent, shall and may, by his warrant, authorise such landlord or agent, in company with the sheriff, or under sheriff, or a constable, who shall attend and assist to break and enter such house, yard, or enclosure, in the day time, if the owner or person dwelling there will not permit them to enter without force in order to search for and seize the goods. Those things which by the common-law were not distrainable, either because they could not be rendered again in like plight, or because they were the tools or instruments of the owner’s trade or occupation, may hereafter be distrained for rent arrere, and sold in the same manner, as other goods, but shall be kept, as impounded in the place where they shall be found, if they cannot be removed without damage to the owner, until they shall be replevied or sold; and all sorts of emblements and annual fruits growing upon land demised, may be seized as distress for arrears of rent, and when ripe, be cut, gathered, cured, and laid up in barns or proper depositaries on the same land, or, if none be there, in such others as can be procured nearest thereto by the landlord, or his agent, who shall give notice thereof, within the space of one week after the seizure, to the tenant, or leave such notice, in writing, at the last place of his abode, and in convenient time the things so seized shall be sold and disposed of in the same manner as other goods distrained for rent arrere, unless the tenant, or his executors, administrators or assigns, before pay to the lessor or landlord, or his agent, the whole rent arrere, together with the charges occasioned by the seizure. Any person may impound, or otherwise secure a distress, lawfully taken for rent arrere, of whatsoever nature or kind it be, in such place, on the premises, chargeable with the rent, as shall be most fit and convenient for the purpose, and may come and go to and from the place, in order to view the distress, and to sell it and remove it after it shall be sold. A landlord, to whom rent is or shall be due upon a lease determined, may distrain for such rent, in the same manner after as he might have done before, so that such distress be made within the space of six months after the determination of the term, and during the continuance of such landlord’s title or interest, and the possession of the tenant from whom the arrears became due. None shall take unreasonable distress, or distrain slaves where other sufficient distress can be had; and if any offend herein, the party grieved may, in an action on the case, recover damages against the wrong doer, with cost of suit. A distress shall not be driven or carried out of the county where it shall have been taken. Upon any pound, breach or rescous of goods distrained or seized as a distress for rent arrere, the person grieved thereby may, in a special action on the case for the wrong sustained, recover treble damages and costs of suit against the offender, or against the owner of the goods, if they be found to have come to his possession or use. The owner of goods distrained and sold, by virtue or colour of this act, or his executors or administrators, if in truth no rent is in arrere or due, may, by an action of trespass, or on the case, to be brought against the person distraining, whether in the right or name of himself, or of another, or his executors, or administrators, recover double of the value of such goods, together with full costs of suit. Where goods shall be distrained for arrears of rent reserved and due, if the tenant or owner of the goods shall, within ten days after the distress taken, and notice thereof, with the cause of such taking, left at the chief mansion house, or other most notorious place on the premises chargeable with the rent distrained for, replevy the same, by giving bond, with sufficient surety, to the sheriff, in the penalty of double the value of the rent demanded, conditioned for prosecuting the suit, with effect, and without delay, and for duly returning the goods distrained, in case a return shall be awarded, the sheriff shall cause the distress to be delivered to the tenant or owner, and shall assign the bond to the lessor or landlord, who may commence an action thereupon in his own name, if the condition be broken, and the person distraining, if he will not suffer the distress to be delivered by the sheriff to the tenant or owner, shall be amerced; and the tenant or owner, in an action of trespass, against the person distraining, may also recover damages; but if the tenant or owner shall not replevy the goods so distrained, within the time and in the manner before mentioned, the landlord shall deliver them to the sheriff, after expiration of the said ten days, who shall take the said goods, and suffer them to be replevied, or sell them in the same manner as if they had been taken by virtue of a writ of fieri facias, applying the produce, in case of a sale, towards satisfaction of the rent demanded, and the expences of the distress and sale, and returning the overplus, if any, to the tenant or owner; and the landlord shall have like remedy against the sheriff for non-payment of the money or tobacco levied, or against the tenant and sureties, who shall have given bond, for producing the goods at the time appointed for sale thereof, or for payment of the rent, interest, and costs, or of the price the goods sold for, as in case of goods taken by virtue of such writ of fieri facias. If any tenant, who shall be in arrere one year’s rent, shall desert the demised premises, and leave the same uncultivated or unoccupied, so as no sufficient distress, can be had to countervail the arrears of rent, two or more Justices of the Peace, at the request of the landlord, or of his bailiff, or receiver, may go upon and view the demised premises, and affix, in the most notorious part thereof, notice in writing on what day they will return to take a second view, which shall be at the distance of not less than fourteen days, and if upon such second view, the tenant, or some person on his behalf, shall not appear and pay the rent in arrere, or there shall not be sufficient distress on the premises, then the said Justices may put the landlord into possession of the demised premises; and the lease thereof, as to any demise therein contained only, shall from thenceforth become void; but those proceedings of the Justices shall be examinable in a summary way by the next county court, who are empowered to order restitution to be made to the tenant, together with his expences and costs, to be paid by the landlord if they shall see cause for the same; or, in case they shall affirm the act of the Justices, to award costs, not exceeding five pounds, for the frivolous appeal. The defendant in replevin may avow, or make conusance generally, that the plaintiff in replevin or other tenant of the tenements whereon the distress was made enjoyed the same under a demise or grant, at such a certain rent, during the time wherein the rent distrained for incurred, which rent then was and still remains due, without further setting forth the grant, demise, or title of the landlord. Any tenant, whose estate is determinable upon a life, tenant for years, or at will, guardian or trustee for an infant, or husband seized in right of his wife, or other person claiming under them, who shall hold possession after the determination of his interest, without express consent of the person then immediately1 intitled, shall be deemed a trespasser. No person shall distrain beasts doing damage upon his land, unless the land be enclosed with a rail fence, five feet high, or with a bank and rail fence, or hedge, the top whereof is eight feet from the bottom of the ditch, the fence or hedge being so close that the beasts could not pass through or under it. When beasts doing damage shall be distrained, and put into a pound overt, the distrainer shall give reasonable notice thereof to the owner, or his agent, or overseer, or leave such notice in writing at the place of his usual abode, if that be distant not more than twelve miles from the pound, but if the distance be greater, or if the owner be not known to the distrainer, the beasts shall be deemed estrays.
Report description begins Report of the Committee of Revisors Appointed by the General Assembly of Virginia in MDCCLXXVI, Richmond, 1784 description ends , p. 88–9. MS (ViU); clerk’s copy.
Bill presented by Madison 31 Oct. 1785, postponed 14 Dec. to next session, and brought up again 1 Nov. 1786; apparently no further action was taken on it (JHD description begins Journal of the House of Delegates of the Commonwealth of Virginia (cited by session and date of publication) description ends , Oct. 1785, 1828 edn., p. 12–15, 92; same, Oct. 1786, p. 16–17). See the 1748 Act for the better securing the payment of rents and preventing the fraudulent practices of tenants and also the 1769 Act amending it (Hening, description begins William W. Hening, The Statutes at Large; Being a Collection of All the Laws of Virginia description ends vi, 9–13; viii, 332–4).
1. The MS copy ends at this point.