DISTRESS

From Agepedia

DISTRESS, in law (from the Latin distringo, to distrain), is the taking of a personal chattel of a wrongdoer, or a tenant, in order to obtain satisfaction for the wrong done, or for rent or service due. The tiling taken is also called a distress* A distress may be taken for homage, fealty, or any other service, of which there were many descriptions under the old feudal tenures, due from the tenant to the lord, or person of whom the estate was holden, the rendering or payment of which was the consideration or condition on which the land was held. So a distress is, by the English and American law, allowed to be made of cattle or goods damagefeasant (see DamageFeasant), both for the purpose of preventing further damage, and obtaining satisfaction for that already done. If the party whose goods or cattle are seized, disputes the injury, service, duty or rent, on account of which the distress is taken, he may replevy the things taken, giving bends, at the same lime, to return them or pay damage, in case the party making the distress shows that the wrong has been done, or the service or rent is due, on account of which the distress was taken. Another description of distress is that of attachment (see Attachment), to compel a party to appear before a court when summoned for this purpose. The distresses most frequently made in England and the U. States, are on account of damagefeasance and rent; though the ordinary attachments on mesne process, that is, on a writ before judgment, that the judgment may be satisfied out of the property so seized, coincides in principle with the right of distress. But this right of previous attachment, though permitted in most cases of claims for debts or damage, in some few of the U. States, seems to be peculiar to them, whereas the right of distress, strictly so called, is very general. The reason for giving a right of distress in cases of damagefeasance is obvious, but ic is by no means so evident why a landlord should have a right to distrain for his rent, any more than a grocer for a debt accruing on account of articles supplied for the use of his debtor's family. The power with which the great body of landholders is vested, all over Europe, where a vast proportion of the soil is under lease, will sufficiently account for the prevalence of this rule there ; but this will not account for the adoption of a similar rule in the U. States, where, in general, the cultivators occupy their own soil, and contracts for rent, except in the considerable towns, form but a small part of the whole mass of contracts. It may be said, indeed, that the chattels on the farm are usually, in pail, at least, the growth of the farm itself, and so far the landlord may, without injustice, have a sort of lien on them for his rent. No other reason occurs to us, why a special remedy should be provided for this particular species of debts, and this reason may not appear entirely satisfactory. This preference is not without exception in the U. States ; for in some of the states, where the right of attaching in mesne processes is extended to most claims for debt or damages, the demand for rent has no better remedy than others. As to the things that may be distrained, the English law allows any chattel of the lessee, on the premises, to be so taken. The law also prescribes particularly the time and mode of making the distress, and the manner of treating the things, especially beasts, distrained.