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Fell v. Whittaker. he failed so to do, he would be liable to strangers whose goods were distrained.]

Had the goods been removed the plaintiff might perhaps have been entitled to sue in respect of his enjoyment of them, which in this instance was not interfered with. And the plaintiff cannot recover on the money counts; Gulliver v. Cosens (1).

[LUSH, J. That was a case of distress damage feasant.]

The same principle applies. Replevin was his proper remedy, and therefore an action for money had and received will not lie; London v. Hooper (). The payment made by the plaintiff could not be set off in an action against him for another demand; Knibbs v. Hall (%).

Heywood, in support of the rule. Any kind of possession would enable the plaintiff to sue: Bourne v. Fosbrooke (TM). He had the *beneficial enjoyment of the goods. The trustee [123 did not live in the house to hold possession of them. There is no distinction in principle between seizure followed by sale, and seizure only. The detention of the goods by the bailiff, although but for a short time, injured the plaintiff. In Loring v. Warburton (), a landlord claiming more rent than was in arrear, had distrained goods of greater value than his claim, and, notwithstanding that tender was made of the amount really due, detained them until the plaintiff paid the sum demanded ; on demurrer to a declaration for excessive distress, it was argued that replevin was the proper remedy, and Glynn v. Thomas was cited as an authority to show that the action would not lie; but Crompton, J., said: “I never could see why an action would not lie. I should be sorry to carry the doctrine of Glynn v. Thomas ) any further;" and Lord Campbell, C. J.: “Here is damnum cum injuria.” Judgment was given for the plaintiff.

[LUSH, J. The counts in Loring v. Warburton () resemble those in the present case.]

And any distinction which may be found is disposed of by Johnson v. Upham (7): see per Wightman, J., delivering the judgment of the Court.

[He was then stopped.]

(") 1 C. B., 788.
( 1 Cowp., 414.
(%) 1 Esp., 84.
(*) 18 C. B. (N. S.), 515; 34 L. J.

(C. P.), 164.

() E. B. & E., 507 ; 28 L. J. (Q. B.), 31.
(0) 11 Ex., 870 ; 25 L. J. (Ex.), 125.
(°) 2 E. & E., 250; 28 L. J. (Q. B.), 252.

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LUSH, J. I am of opinion that this rule must be made absolute to set aside the non-suit, and for a new trial. It is material to observe the pleadings in this case, and also to see what was the evidence given before the Court below. [His Lordship read the first count of the declaration, which he pronounced to be perfectly good, and then proceeded to read the evidence set out above.]

The effect of the evidence was, that the property in the house had been assigned to trustees, whether for the wife or for the plaintiff does not appear, but we may assume that it was for the wife. The plaintiff lived with his wife, and had the enjoyment of the property. One of the trustees also lived in the house with them. He, the plaintiff, being tenant of the house, and his rent being somewhat in arrear, a distress was put in for a 124] larger amount than *was due, a much greater quantity of goods was seized than was sufficient to satisfy even the sum claimed, and the bailiff refused to accept the amount actually due. The contention on behalf of the defendant is, that there was no evidence to go to the jury on the count for excessive distress.

Now, the argument was founded on the point taken at the trial, and to which the learned judge gave effect, viz., that inasmuch as the plaintiff was not the owner of the goods, but merely had the enjoyment of the property with the consent of his wife and the trustee, he was not in a position to maintain an action for the excessive distress, even although, to regain possession of the goods, he had to pay, or cause to be paid for him, a larger amount than that of the rent due. I think that objection is not tenable, and that he had quite enough special property to enable him to sue. The right of possession which he had with the consent of his wife and her trustee was sufficient; by virtue of that right he would have been entitled to recover possession of the goods if they had been taken away by a stranger, and by that right he is entitled to maintain the present action. I should find no difficulty in directing the jury as to the measure of damages which, I think, would be the sum he was obliged to pay in excess of the rent plus any damage arising from the inconvenience of being deprived of the possession and enjoyment of the goods.

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Having regard to the cases cited, I do not think that any authority has been referred to which requires us to decide otherwise than we do now. The case which at first sight appears to lean most in the opposite direction is that of Glynn v. Thomas (1). But I see from the report that the count in the declaration there did not allege an excessive distress. That is pointed out in the judgment as one of the grounds relied on in the argument. The material count in that case commenced by alleging a wrongful distraint of the plaintiff's goods “as a distress for alleged arrears of rent, to wit, the sum of 61. 38., by the defendant, then pretended to be due and in arrear to him from the plaintiff for the ... tenements and premises, and the defendant wrongfully remained in possession of the said goods under color of the said distress, until the plaintiff afterwards ... pelled to pay, and did then pay, to the *defendant the said (125 pretended arrears of rent,” &c., did not allege that the quantity of goods taken was excessive, nor are there any words there which would make it a good count for excessive distress under the statute; moreover, Coldridge, J., delivering the judgment of the Exchequer Chamber, says: “This is not a case of excessive distress” (?). Compare that with the facts of the present case. Here was an unlawful act alleged and proved, viz., the seizing of a larger quantity of goods than were sufficient to satisfy the amount claimed. Then, under pressure of that act, the plaintiff, in order to recover his goods, paid, or did what was equivalent to paying, the sum demanded. That circumstance distinguishes the two cases, and makes up the cause of action which I think the present plaintiff had.

HANNEN, J. I am of the same opinion. On the face of the declaration this is an ordinary action for excessive distress ; and it is clear that the only question raised at the trial was, whether the averment that the goods were the plaintiff's was established, the argument being that he had assigned those goods to a trustee for his wife, and that his enjoyment of them in right of his wife was not enough to give him a right of action. I think that objection was not sustained. I think he was sufficiently interested and had sufficient enjoyment in the goods to give him a right of action against a wrong-doer, and therefore,

(1) 11 Ex., 870; 25 L. J. (Ex)., 125. (*) 11 Ex., at p. 877.

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in respect of that enjoyment he may maintain this action on the assumption that there has been an excessive distress. With respect to the point my Brother Lush has so fully gone into, that seems exactly governed by Loring v. Warburton (), and Johnson v. Upham ().

Attorney for plaintiff: Williams, for N. Evans, Manchester.

Attorneys for defendants: Griffiths & Brownlow, for Brown, Manchester.

Nov. 15, 1871. 126]

FLEET and another v. MURTON and another

Law Reports, 7 Queen's Bench, 126. Evidence, Admissibility of Usage of Trade to control written Contract Custom

in London Fruit Trade Making Broker personally liable - Principal and Agent - Broker,

The defendants, M. & W., fruit brokers in London, being employed by the plaintiffs, merchants in London, to sell for them, gave them the following contract note addressed to the plaintiffs :—“We have this day sold for your account to our principal” so many tons of raisins. (Signed) “M. & W., brokers.” The defendants' principal having accepted part of the raisins, and not having accepted the rest, the plaintiffs brought an action on the contract against the defendants, and they sought to make the defendants personally liable by giving evidence that, in the London fruit trade, if the brokers did not give the names of their principals in the contract, they were held personally liable, although they contracted as brokers for a principal; and evidence was also given of a similar custom in the London colonial market:

Held, that the evidence of the custom in the same trade was admissible, as not inconsistent with the written contract, on the authority of Humfrey v. Dale (7 E. & B. 266; E. B. & E. 1004); and that the evidence of a similar custom in the colonial market was admissible, being evidence in a similar trade in the same place, and as tending to corroborate the evidence as to the existence of such a custom in the fruit trade.

DECLARATION that on the 30th of October, 1869, plaintiffs and defendants agreed that plaintiffs should sell to defendants, and defendants should buy of plaintiffs, fifty to seventy tons of raisins at a certain price; that defendants, having accepted part, refused to accept the residue of the raisins, according to the contract.

(1) E. B. & E., 507; 28 L. J. (Q. B.), 31. (3) 2 E. & E. 250; 28 L. J.(Q. B.), 252.

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Pleas, inter alia, that defendants did not agree as alleged. Issue joined.

At the trial before Blackburn, J., at the sittings in London after Michaelmas Term, 1870, it appeared that the plaintiffs, Messrs. Fleet & Dobbing, are merchants in London, and the defendants, Messrs. Murton & Webb, are brokers in the fruit trade in London. The defendants were employed, in October, 1869, by the plaintiffs to sell for them certain consignments of raisins, and the defendants handed to the plaintiffs, the following contract note :

“Messrs. Fleet & Dobbing London, 30th of October, 1869.

“We have this day sold for your account to our principal, to arrive per steamer from Trieste, fifty to seventy tons of good sound *Chesne raisins, in cases, at 41s. per cwt., usual (127 market terms. Cash on delivery. F. & D., to draw on M. & W., for 500l. (if required) on landing, handing equal value. Customary allowances.

“Murton & Webb, Brokers, 25, Mincing Lane.”

The defendants had purchased on behalf of Demetrius Pappa, and part of the raisins were accepted and paid for by him through the defendants; but, becoming embarrassed, he refused to receive any of the other consignments, upon which, on the 1st of December, 1869, the defendants wrote to the plaintiffs, informing them that Mr. Demetrius Pappa was the buyer under the contract of the 30th of October, 1869, and that he refused to receive any more of the raisins; to which the plaintiffs replied, that the buyer was bound to receive the whole, and that they knew nothing of Pappa, whose name the defendants now furnished, as the plaintiff's contract was with the defendants themselves.

In order to make the defendants personally liable on the contract, evidence was tendered on behalf of the plaintiffs that, in the London fruit trade, if the brokers do not name their principal in the contract-note itself, the brokers are held personally responsible on the contract. And evidence was also tendered of a similar custom in the London colonial market: viz., that the brokers are held personally responsible, unless they give the name of their principals in writings, within three days after making the contract. Both classes of evidence were re

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