costs and charges of the distress, and are likely to lose the

same.

The second count (after stating the taking as above) alleged that the plaintiffs by their bailiff were about to impound the goods, with intent to appraise and sell the same according to the statutes, &c., and had the goods in their custody and possession under the distress, when the defendant, with force and arms, rescued, took and carried away the goods, and thereby prevented the plaintiffs from impounding the same as they otherwise would have done, whereby, &c.

Pleas. First: Not guilty. Secondly, to the first count. That the plaintiffs did not impound and secure the goods. Thirdly, to the second count, that the said lands and premises were not held or enjoyed by G. Hickman, as tenant thereof to the plaintiffs, nor was the sum of 5591., or any part thereof, due or in arrear, and that at the time of the making of the said distress, and of the impounding thereof, the goods in the second count mentioned were the goods of the defendant, and he had the right to the immediate possession thereof, and requested the plaintiffs to deliver the same to him, which they refused to do; wherefore the defendant took away the goods and prevented the plaintiffs from impounding them. The plaintiffs took issue on the pleas.

At the trial, before Blackburn, J., at the Spring Staffordshire Assizes, the following facts appeared. One Hickman was tenant to the plaintiffs of a colliery under an ordinary mining lease, at the yearly sum of 50l., as a surface rent, and a further sum by way of a mining rent. The lease contained a proviso for re-entry on non-payment. The defendant was a butty collier under Hickman, and used his own horses in the mining operations. On the 8th of September, 1860, the plaintiffs distrained for rent due from Hickman, and seized, amongst other things, three of the defendant's horses. These were removed from the demised premises to the stable of an inn, about half a mile off, and notice was given that they were impounded there. The plaintiffs then took possession of the mine and plant under the proviso for re-entry. On the 10th of September, by order of Murrell, one of the appraisers acting generally for the plaintiffs, two of the horses were brought to the colliery for the purpose of being let down the pit, and employed in removing the timber. One of them was locked up in a moveable stable near the pit's mouth, and the other was placed on a skip ready to be let down the shaft. The defendant, with the assistance *of some other persons, broke open the stable and forcibly took away both the horses. The value of the horses was 201,

It was objected, on behalf of the defendants, that neither of the counts of the declaration was proved, the rescue being after the impounding, and after the removal of the horses from the pound for an unlawful purpose; that the case was not within the statute 2 W. & M. sess. 1, c. 5, and that treble damages were not claimed in the declaration. A verdict was entered for treble damages, under the statute, leave being reserved to move to enter the verdict for the defendant.

Gray having obtained a rule nisi for that purpose,

Pigott, Serjt., and Matthews showed cause:

The distress was originally lawful; the horses were regularly. impounded, and the defendant was guilty of a pound breach. At the time the horses were taken by the defendant they had been removed from the stable where they had originally been placed; but, though no doubt the plaintiffs' servants contemplated working them, they had not actually commenced. It is clear, upon the authorities, that the distrainer may impound the distress wherever he pleases: Com. Dig. tit. Distress (D. 1). According to the rules there laid down, at the time of the rescue the horses were sufficiently impounded. It may, perhaps, be contended that the circumstance of the removal of the horses from the stable in which they were originally, makes a difference; but that is not so. In many cases some change of the place of pounding might become absolutely necessary. The original pound may cease to be in a condition proper for the safe custody of the distress; in which case it would clearly be proper to remove goods distrained to another pound: Wilder v. Speer (1). Mere change of place, therefore, does not necessarily destroy the *legality of the custody. It is said that the removal here was for an improper purpose; but it will be found that in all the cases in which the abuse of a distress has been held to make the distrainer a trespasser ab initio, the abuse has taken place before the impounding. The reason is clear; it is the duty of the distrainer at once to put the distress in the custody of the law: the omission to do so indicates an intention to apply the goods distrained to the use of the distrainer. In the case of a distress for rent, tender after impounding does not make the detainer tortious: The Six Carpenters' case (2). The principle upon which this proceeds applies equally to the case where, after impounding, there is an abuse of the thing distrained. As soon as the distress is impounded it is in the custody of the law, and no longer in that of the distrainer. It is laid down by Chief Baron Gilbert: "When the beasts are in (2) 8 Co. Rep. 147 a,

(1) 47 R. R. 656 (8 Ad. & El. 547).

SMITH

t.

WRIGHT.

[ *824]

SMITH

WRIGHT.

the custody of the law, the person distraining cannot be said unlawfully to detain what is in the custody and care of the law" (1). For the same reason a parco fracto lay though the distress and impounding were without cause: Com. Dig. tit. Distress (D. 2). Since the statute 11 Geo. II. c. 19, a sale of the distress, contrary to the enactment of 2 W. & M. c. 8, s. 1, has been held not to make the distrainer a trespasser ab initio: Wallace v. King (2).

(POLLOCK, C. B.: That was the case of a sale within five days, which is an irregularity. Using the distress is a very different thing. Suppose the distrainer of a horse rode him out hunting, could not the owner stop him?

WILDE, B.: Would you contend that the hunter was still in the pound?)

The distress would be lawful, notwithstanding that the owner might have an action for the irregularity.

(POLLOCK, C. B.: The act done was one which the distrainer [825] was not authorized to do at all,-not an irregularity, which' is the doing something which the party has a right to do but in an improper manner, but a wrongful act altogether. It put an end to the custody of the law, and took away the protection of the pound.)

Surely a sale before the time permitted by the statute is a wrongful act, yet that does not render the distrainer a trespasser ab initio.

(WILDE, B.: Doing a right thing at a wrong time is not the same as doing an act wholly wrongful.)

In Rodgers v. Parker (3) JERVIS, Ch. J., says, in reference to the construction to be put upon the 11 Geo. II. c. 19, s. 19: “A subsequent irregularity is not to make the distrainer a trespasser ab initio. For the original taking there is to be no action; the distrainer is to be considered as being in possession of the goods, notwithstanding a subsequent irregularity." The defendant could not have maintained either trover or trespass: Wallace v. King (2), Rodgers v. Parker (3).

(WILDE, B., referred to Winterbourne v. Morgan (4).)

At all events there was a clear act of trespass proved; the defendant could have no right to go upon the plaintiff's premises

(1) Gilbert on Distress, p. 62.

(2) 1 H. Bl. 13,

(3) 107 R. R. 230 (18 C. B. 112). (4) 10 R. R. 532 (11 East, 395),

and break into his stable, and the Court has power to allow the declaration to be amended by the insertion of a count to meet the facts.

(BRAMWELL, B.: The COURT will not amend where the damages would be nominal.)

Gray and Davis, who appeared in support of the rule, were not called upon.

POLLOCK, C. B.:

We are all of opinion that the rule should be absolute to enter the verdict for the defendant. We think that there was no pound breach, and no rescue. As to the application made to us to amend the *declaration, I have no wish to encourage actions, where the statute gives treble damages, by turning them into mere actions of trespass, for the purpose of entitling a plaintiff to save his costs in cases where we think he ought not to recover.

MARTIN, B.:

I am of the same opinion. All that the distrainer of goods obtained at common law was, not the property in the goods, but a sort of pledge; and the law directs how that pledge is to be used. No case has been cited to show that, where the distress is being used in a manner which the law will not justify, the owner may not interfere to prevent the abuse; and it would be contrary to the spirit of the law if he were not permitted to do so. I have no doubt that, in principle and reason, an owner of property which has been seized as a distress is entitled to prevent the use of it by the distrainer in a manner not allowed by the law. This is well illustrated by a case, put by the LORD CHIEF BARON in the course of the argument, of a sheep being taken as a distress and the distrainer afterwards attempting to kill it; where it is impossible to doubt that the owner would be justified in interfering to prevent him from doing so. BRAMWELL, B.:

I am of the same opinion. The argument for the plaintiff comes to this: that, when once a distress has been impounded, the quality of "impoundation "sticks to it, so that it cannot afterwards be got out of the pound. I cannot agree to that. The rule ought to be made absolute.

WILDE, B.:

I am of the same opinion. I can well understand that in some cases questions of great nicety might arise respecting the right of the owner of a distress to interfere with the distrainer

SMITH

v.

WRIGHT.

[ *826 ]

SMITH

v.

WRIGHT. [827]

1861. May 15.

[ 828 ]

*

in his dealing with it. In the present case the distrainer was guilty of a misuser, which was of a nature to leave no doubt as to the owner's right to interfere. Therefore, I think, there was no rescue: and I think also that there was no pound breach; for it seems to me that, under the circumstances of this case, the horses cannot be considered, in any sense, have remained in the pound, out of which they had in fact been taken. On these grounds I think that the rule should be absolute.

Rule absolute to enter the verdict for the defendant.

IN THE EXCHEQUER CHAMBER.

(APPEAL FROM THE COURT OF EXCHEQUER.) CASTLE AND OTHERS v. SWORDER (1).

(6 H. & N. 828-839; S. C. 30 L. J. Ex. 310; 8 Jur. N. S. 233; 4 L. T. N. S. 865; 9 W. R. 697.)

The plaintiffs, wine and spirit merchants, kept a bonded warehouse, where they took in other persons' goods as well as their own, charging warehouse rent. Of this warehouse the plaintiffs had one key and the Custom-house officer another. The defendant agreed to buy of the plaintiffs two puncheons of rum which were to remain in bond till wanted, the defendant to have six months' further credit. The plaintiffs sent to the defendant an invoice describing the puncheons by marks and numbers with the words "free six months," which was explained to mean that they might remain in the plaintiffs' warehouse without charge for six months. The plaintiffs entered in the rum book of their warehouse the puncheons of rum as sold to the defendant, and proved that after this entry they had no power to get the goods out. The rum remained in the warehouse for two years, during which time the defendant on several occasions asked the plaintiffs to take back the goods or buy them of him: Held, by the Court of Exchequer Chamber (reversing the decision of the Court of Exchequer), that there was evidence to go to the jury that the character in which the plaintiffs held the goods was changed; and that, if they held as warehousemen for the defendant, there was evidence of an acceptance and receipt of the goods by the defendant so as to satisfy the 17th section of the Statute of Frauds (2).

THIS was an appeal from the decision of the Court of Exchequer in discharging a rule to enter a verdict for the plaintiffs, reported 5 H. & N. p. 281.

The case on appeal set out a copy of the Judge's notes of the evidence, which was as follows: The plaintiffs are distillers and wine and spirit merchants at Bristol. The defendant is a wine and spirit merchant at Dowlais in the county of Glamorgan.

Henry Penn, traveller for plaintiffs: February, 1857, I called on defendant, took order for two puncheons of rum and one of brandy. Sold by sample in bond. He has a brewery in Dowlais. They were to remain in bond till he wanted them. (1) Evans v. Roberts (1887) 36 Ch. D. (2) Now Sale of Goods Act, 1893, 196, 56 L. J. Ch. 952,

s. 4.