*812

Appraise

ment of

the goods.

that the party should have notice; which object was more effectually attained by a notice given to the party himself, than by a notice left at the mansion-house, or most notorious place on the premises."(1)

If goods be distrained for rent the landlord must wait five whole days, i. e. five times twenty-four hours, before he sells, and if he does not, he is liable to an action. Thus, where a distress was made on Friday at two P. M., and the sale was on the following Wednesday at eleven, A. M., the sale was held to be wrongful.(2) The landlord may remain a reasonable time on the premises after the expiration of the five days for the purpose of appraising and selling the goods distrained. But where one who entered under a warrant of distress for rent in arrear, continued in possession of the goods upon the premises for fifteen days during the last four of which he was removing the goods, which were afterwards sold under the distress; held, that he was liable in trespass for continuing on the premises and disturbing the plaintiff in the possession of his house after the time allowed by law." The consent of the tenant, it seems, will justify him in remaining on the premises beyond the proper time.

A tenant whose standing corn and growing crops have been seized as a distress for rent before they were ripe, cannot maintain an action on the case under the above statute against the landlord or his bailiffs for not selling the same before five days *had elapsed after the seizure, as such sale was altogether void. The statute, though it authorises a sale after five days, does not take away the right to replevy after that period if the goods be not sold; secus after the sale; for the purchaser is entitled to retain the goods.

Before the goods distrained can be sold, they must be appraised by two sworn appraisers, of whom the party distrain

• Walter v. Rumball, 1 Lord Raym. 53. 12 Mod. 76. 1 Salk. 247. Harper v. Taswell, 6 C. & P. 166. (25 Eng. C. L. 336.) Wallace v. King, 1 H. Bl. 13.

Pitt v. Shew, 4 B. & A. 208. (6 Eng. C. L. 403.) But see Griffin v. Scott, 2 Stra. 717. It seems that the landlord must sell at the end of five days. See ante, 800, n.

139.

Winterborne v. Morgan, 11 East, 395. And see Etherton v. Popplewell, 1 East,

Fisher v. Algar, 2 C. & P. 374. (12 Eng. C.

• Harrison v. Barry, 7 Price, 690. L. 179.) 'Owen v. Legh, 3 B. & A. 470. (5 Eng. C. L. 346.) Jacob v. King, 5 Taunt. 451. (1 Eng. C. L. 154.)

2 W. & M. c. 5, s. 2. Bishop v. Bryant, 6 C. & P. 484. (25 Eng. C. L. 500.) Tindal. It has, however, been held that where the rent distrained for does not exceed 201., only one sworn appraiser is necessary, since 57 Geo. III, c. 93. Fletcher v. Saunders, 6 C. & P. 747. (25 Eng. C. L. 630.) 1 M. & Rob. 375. If the tenant,

(1) (An omission to give notice does not make the landlord a trespasser. M'Kinncy v. Reader, 6 Watts, 34.)

(2) (If the fifth day be Sunday, the following Monday will be estimated as the fith day. M'Kinney v. Reader, supra.)

ing cannot be one, for he is interested in the transaction. The appraisers must be sworn before the constable of the parish where the distress is taken, who must attend and swear them before the appraisement is made.© A distress sold at the appraised value is intended to have been sold at the best price since the law relies upon the appraisers having been sworn.d It has, however, been held on a count for not selling goods distrained at the best prices, that the plaintiff may give evidence to show that the goods were allowed to stand in the rain, and that they were improperly allotted.

The expenses of levying a distress for rent for less than twenty Expenses. pounds, are regulated by 57 Geo. III, c. 93,f the second section of which gives justices a summary jurisdiction to administer a remedy to parties aggrieved by extortion. Sect. 6 provides that every broker or other person who shall make and levy any distress whatsoever, shall give a copy of his charges *and of all the costs and charges of any distress whatsoever, *813 signed by him to the person whose goods shall have been distrained, although the amount of rent demanded shall exceed twenty pounds. It has been held under this section that a landlord who does not interfere personally in the distress, is not liable for the neglect of the broker employed by him to make the distress in not delivering a copy of the charges of the dis

tress.

SECTION X.

SECOND DISTRESS.

made if

By 17 Car. II, c. 7, in all cases where the value of the cattle A second distrained shall not be found to be of the full value of the distress arrears distrained for, the party to whom such arrears are may be due, his executors or administrators, may distrain again for the first be the said arrears; but a second distress cannot, it seems, be not suffijustified, where there is enough which might have been taken cient. upon the first, if the distrainer had then thought proper. If

to save expense, requests that appraisers may not be called in, and in consequence the broker who made the seizure values the goods, the tenant cannot, in an action, complain of that which was done as an irregularity. Bishop v. Bryant, supra. Westwood v. Cowne, 1 Stra. 172. Weldon, 6 Moore, 629. 2 Bing. 334. Avenell v. Croker, M. & M. 172. Kenny v. May, 1 M. & Rob. 56. Poynter v. Buckley, 5 C. & P. 512. The 7 & 8 G. IV, c. 17, extends the taxes under 20., which the above statute Hart v. Leach, 1 Mees. & Wels. 560. 2 Gale. Woodf. L. & Ten. 335.

Andrews v. Russell, B. N. P. 81. Lyon v. (9 Eng. C. L. 424.) (22 Eng. C. L. 281.)

d Walter v. Rumball, 1 Lord Raym. 53. (24 Eng. C. L. 433.) same provisions to distresses for rates and contains respecting distresses for rent.

a man, however, seize for the whole sum that is due to him, and only mistake the value of the goods seized, which may be of uncertain or imaginary value, as pictures, jewels, &c., there is no reason why he may not afterwards complete his execution by making a full seizure."

If the plaintiff in replevin be nonsuited, the defendant may again distrain the same goods for rent subsequently accrued previously to his executing his retorno habendo, without waiving his action against the sureties in the bond.b

To a cognisance for rent in arrear; a plea in bar, that the defendant, on a former occasion, made a distress for the same rent, and took goods liable to distress, sufficient to discharge the rent in arrear and the costs of the distress, and might thereby have paid the arrears of rent, but neglected so to do, and wrongfully made a second distress for the same rent, *814 *was held ill on special demurrer, assigning for cause that the plea did not show that the rent was satisfied by the former distress.

с

What amounts

to a res

cue.

SECTION XI.

RESCOUS OR POUND BREACH.

RESCUE is the taking away and setting at liberty again a distress taken for rent or damage feasant, after it has been in the possession of the party distraining. Preventing a person from making a distress, is no rescue. If cattle distrained go on the premises of the owner while being driven to the pound and he refuses to deliver them up upon demand by the distrainer, it is a rescue in law. But where the plaintiff distrained the defendant's cattle damage feasant, and went to apprise the defendant, and during his absence the cattle escaped into the defendant's grounds for half an hour from which the plaintiff, on his return, drove them into his own yard; it was held, that the defendant having taken them from thence, it was no rescue; for permitting the cattle to go on the defendant's ground was an abandonment of the distress.g

If a distress is taken without cause, as where rent is not due, the owner may make rescous before the distress is impounded. So, if the owner tender the rent before distress

Hutchins v. Chambers, 1 Burr. 579.

Hefford v. Alger, 1 Taunt. 218.

• Hudd v. Ravenor, 5 Moore, 542. 2 B. & B. 662. (6 Eng. C. L. 306.) Lingham v. Warren, 2 B. & B. 36. (6 Eng. C. L. 10.) 4 Moore, 409.

d B. N. P. 84. 1 Inst. 160, b. F. N. B. 101.

• Id.

Knowles v. Blake, 5 Bing. 499.

f 1 Inst. 151.

(15 Eng. C. L. 517.) 3 M. & P. 314.

taken. But, after the distress is impounded, the owner cannot break the pound, and take the distress out of the pound; for it is then in the custody of the law."

If a hayward take cattle which are straying in a common or lane, and they are rescued as he is taking them to the pound, this rescue is indictable; but if the hayward take cattle which are damage feasant in the inclosed land of any private occupier, the rescue of them before they get to the pound is not indictable; as in the latter case, till the cattle get to the *pound, the hayward is to be considered the mere servant of the *815 occupier.b

At common law, if any person broke the pound, or any part of it, and took away the cattle, it was deemed a breach of the peace; besides, the distrainer might take the cattle again, wherever he found them, and again impouud them. By 5 & 6 W. IV, c. 59, s. 5, any person may enter a pound to supply food and nourishment to cattle confined therein, without being liable to any action or proceeding of any kind by reason of such entry.

breach.

By stat. 2 W. and M., first sess. c. 5, s. 4, it is enacted, Remedy "that upon any pound breach, or rescous of goods or chat- for rescous tels distrained for rent, the party grieved shall, in a special ac- or pound tion on the case, for the wrong thereby sustained, recover treble damages and costs against the offenders, or against the owners of the distress, in case the same be afterwards found to have come to their use or possession." In the construction of this statute, it has been held, that the word " treble" refers to the words "costs," as to the word "damages," and consequently, that the costs shall be treble, as well as the damages. So it has been held, that a tender of the rent after the cattle were impounded, was no answer to an action under this statute. A plea of recaption, after a rescue, must aver that the recaption was on fresh pursuit.

SECTION XII.

REMEDY FOR A WRONGFUL DISTRESS.

WHERE the goods or chattels of a party are wrongfully distrained, his remedy is by an action of replevin, or trespass, or trover for the value; or detinue for the thing itself distrained;

1 Inst. 47, b. 160, b.

Rex v. Bradshaw, 7 C. & P. 233. (32 Eng. C. L.) Coleridge.

1 Inst. 47, b. 160, b.

Lawson v. Story, 1 Lord Raym. 19.

'Rich v. Woolley, 7 Bing. 651. (20 Eng. C. L. 274.) 5 M. & P. 663.

When a distress

be deemed

or if the goods taken be converted into money, he may waive the tort and bring assumpsit for money had and received. The most usual remedy for a wrongful distress is replevin, which shall be considered under a distinct head. Independently of *816 these remedies for a wrongful distress, an action on the case lies where the party, having a right to distrain, is guilty of an abuse or irregularity in making or disposing of the distress. At common law, an abuse of a distress made the party distraining a trespasser ab initio. But now, by 11 G. II, c. 19, s. 19, "where any distress shall be made for any rent justly due, and any irregularity or unlawful act shall be afterwards shall not done by the party distraining, or his agent; the distress shall unlawful, not be deemed unlawful, nor the distrainer a trespasser ab initio, but the party grieved may recover satisfaction for the party ma- special damage in an action of trespass or on the case, at the king it a election of the plaintiff; and if he recover he shall have full trespasser costs." But by s. 20,"no tenant or lessee shall recover in on account such action, if tender of amends has been made before action of a defect brought." By stat. 17 Geo. II, c. 38, s. 8, "where any distress or irregu- shail be made for money justly due for the relief of the poor, larity. the distress shall not be deemed unlawful, nor the party making it a trespasser, on account of any defect or want of form in the warrant of appointment of overseers, or in the rate or assessment, or in the warrant of distress thereupon; nor shall the party distraining be deemed a trespasser ab initio, on account of any irregularity which shall be afterwards done by him, but the party grieved may recover satisfaction for the special damage in an action of trespass, or on the case, with full costs; unless tender of amends is made before action brought."

nor the

ab initio,

Remedy for an ex

cessive distress.

Though at common law an action lay for an excessive distress, yet a remedy by an action on the case is also given by the statute of Marlbridge, 52 H. III, c. 4, which provides, "that distresses shall be reasonable, and that persons taking *817 unreasonable distresses, shall be grievously amerced for the excess of such distresses. Though case is the proper remedy for excessive distress, it has been held that trespass would lie where gold or silver was taken to an excess, apparent on the face of it; as where six ounces of gold and 100 ounces of silver were distrained for 6s. Sd.(1) The ground of that decision was, that gold and silver were of a certain and known value; but it

* And in case of distress for damage feasant, this is still the law.

The true construction of the words trespass on the case, is that the party injured must bring trespass if the injury be trespass, and case if it be a subject matter of an action on the case; the nature of the irregularity determines the form of action. Hence, case might be brought for an irregularity in omitting to appraise the goods before selling them, and trespass for remaining in possession beyond the five days. Winterbourne v. Morgan, 11 East, 395, ante, 811. Smith's Leading Cases, 66.

2 Inst. 107. Per Parke, B., in Pigott v. Birtles, 2 Gale, 21.

Id. Sturch v. Clark, 1 N. & M. 6.

(1) (Sce M'Kinney v. Reader, 6 Watts, 34.)