Distress (Lat. distringerc, to press, straighten, wring out), a term applied to the taking of property of a tenant for non-payment of rent; to the seizing of cattle for damage done by them; to a levy upon property to enforce the payment of taxes; and lastly to a proceeding to compel the appearance of a party who cannot be found. In the two cases first mentioned, the landlord or person who had been injured could make the seizure himself or by his deputy; an anomalous authority, entirely at variance with a fundamental principle of law that parties should not be permitted to redress their own injuries without judicial process. The recaption of property which has been wrongfully taken away, or wrongfully detained, or the reentry upon lands of which a man has been dispossessed, though analogous in one respect to distress for rent or damage feasant, yet differs in another, viz.: that such recaption or reentry cannot be made with force, whereas a distress may be executed in like manner as process upon a judgment; that is to say, force may be used in case of resistance.
The third case above mentioned, viz., distress to enforce the payment of taxes, is statutory, and while generally limited to the seizure and sale of the goods of the person taxed, it is sometimes, in the case of tax upon lands, permitted to extend to any personal property found thereon. The case of distress to compel an appearance was by a judicial writ called a distringas. In a popular sense, a distress is understood only of the taking property of a tenant or wrong doer in satisfaction of rent or damages. The term is with some incongruity applied as well to the prop-ery taken as to the act of taking. Formerly, the property distrained was deemed a mere pledge, and the distrainor had no power over it except that of detaining it till he received satisfaction of the rent or damages for which the distress was made; but for the security of the owner it was required that the property should be kept in a pound (parous, which signifies any enclosure ); and if the distress consisted of live animals, it was required that they should be impounded within three miles of the place where they were taken. If put into a public pound, the risk and expense of keeping the same devolved upon the owner without notice from the distrainor.
By statute 11 George II., c. 19, the distrainor was authorized to make a special pound upon the premises where the distress was taken, in which case notice to the owner was required; but the liability to provide necessaries for animals belonged to the owner as in the other case. A distress of chattels which might be injured by exposure to the weather the distrainor was bound to keep in a pound covert. A distress was allowed only by daylight, except in the case of beasts damage feasant, which might be taken at night, lest they should escape. Formerly the landlord could distrain only such goods as were found upon the premises for which rent was due, but by statute goods which have been clandestinely removed may be followed within 30 days after the rent accrues. In making the distress the landlord is not permitted to break open the outer door of the house, but being once in, he can break an inner door; being the same rule as in levy upon execution. As to the property subject to distress, it may be said in general that anything found upon the premises may be taken, whether the property of the tenant or not; but from this are excepted things affixed to the freehold and constituting a part of it in law; perishable articles; goods of third persons upon the premises from necessity, or for the purposes of commerce or trade, as the carriage of a traveller at an inn, or the plough at a smith's for repair; goods already in the custody of the law; and goods specially exempt by statute.
The tools or implements of a man's employment are also at common law conditionally exempt; that is to say, they should not be taken if other sufficient distress can be found. If distress is made when no rent is due, the tenant has his remedy by replevin; but for an excessive distress, the only protection of the tenant is by an ancient statute (52 Henry III., c. 4), under which an action may be brought for the taking of an unreasonable or excessive amount. After the impounding of the property, by the ancient law the remedy of the distrainor ceased; but by various modern statutes, when the distress is for rent, it may be sold after the expiration of five days for payment of the rent. - In the United States a strong inclination has of late been manifested to abolish distress entirely, not only as a harsh remedy as regards the debtor, but because establishing an unjust discrimination in favor of the landlord as against other creditors. In several of the states this has already been done.