Page images
PDF
EPUB

if he disclaims when he knows the circumstance, and repudiates the act, he is not bound by it.-Hurry v. Rickman, 2 Moo. & Mal. 126. Lewis v. Read, 13 Mec. & W. 234. 14 Law J. N. S. Exch. 295.

325. When the charges are excessive, the tenant may maintain an action on the stat. 2 Wm. & Mary, for not leaving the overplus in the hands of the sheriff, under-sheriff, or constable; the overplus in the Act meaning the overplus after payment of the rent and the reasonable charges.-Lyon v. Tomkies, 1 M. & W. 603.

326. But a landlord who does not personally interfere in the distress, is not liable for the neglect of the broker in not delivering a copy of his charges.Hart v. Leach, 1 M. & W. 560.

327. Where the goods of a testator have been carried away in his life-time, the executor may maintain trespass against the wrong doers, 4 Ed. III. c. 7, and the same as to administrators, 31 Ed. III. c. 11, and executors of executors, 25 Ed. III. c. 5. And the right of action for injuries to real or personal estate, survive to and against executors and administrators, 3 & 4 W. IV. c. 42. s. 2.

in

328. By the 3 & 4 Vic. c. 24. s. 2, the plaintiff

any action of trespass, or on the case, if he recover by the verdict of a jury less than forty shillings damages, whether upon issues tried, or judgment by default, shall not be entitled to any costs whatever, unless the judge or presiding officer immediately afterwards certify that the action was really brought to try a right, besides the mere right to recover damages for the trespass or grievance for which the

action shall have been brought, or that the trespass or grievance in respect of which the action was brought, was wilful and malicious. But, by s. 3, this is not to extend to any trespass, in respect of which any notice [i. e. written notice] not to trespass shall have been served, as directed by the Act.

329. This statute has been a great check to trifling actions, and has induced defendants frequently to suffer a case to go before the sheriff's jury, on a judgment by default, the expense of the defence in such case being much less than defending and going to the assizes.

330. It does not apply, however, to a case where judgment has been given for the plaintiff, upon demurrer. (Taylor v. Rolfe, 8 Jurist, 35.) And where a trespass is committed after notice (although verbal) not to commit it, the judge has power to certify that it was wilful and malicious, so as to entitle the plaintiff to costs, and although no express malice be proved. Sherwin v. Swindall, 8 Jurist, 580.

331. A party may bring an action for an illegal or excessive distress, in one of the small debts courts, where the damages claimed do not exceed 201.; and if not more than 57., the action is not removable into a superior court. But if the title to any corporeal or incorporeal hereditament be in question, the small debts courts have no jurisdiction, s. 58, 90 of 9 & 10 Vict. c. 95.

332. And if he proceeds in the superior court, where he could proceed in the small debts court (except where the plaintiff dwells more than twenty miles from the defendant, or where the cause of

action did not arise wholly, or in some material point within the jurisdiction of the court within which the defendant dwells, or carries on his business, or where any officer of the county court shall be a party), and he recovers a verdict for less than 57., (such action being an action of tort), the plaintiff shall not recover costs; and if a verdict shall not be found for the plaintiff, the debt shall be entitled to costs as between attorney and client; unless in either case the judge certify that the action was fit to be brought in such superior court, s. 128, 129.

SECTION IV.

Of excessive Distress.

333. By statute 51 Hen. III. s. 4, distresses are to be reasonable after the value of the debt or demand, and by the estimation of neighbours, and not by strangers, and not outrageous.

334. And by the statute of Marlbridge, 52 Hen. III. c. 4, and confirmed by 28 Edw. I. stat. 3. s. 12, moreover, distresses shall be reasonable, and not too great, and he that taketh great and unreasonable distresses shall be grievously amerced for the excess of such distresses.

335. If the lord distrain two or three oxen for twelve-pence, it is unreasonable. So if he distrain a horse or an ox for a small sum, it is excessive, unless there be no other distress on the land.2 Inst. 107.

336. It is not for every trifling excess that this

action is maintainable. It must be disproportionate to some excess. There is a distinction between cases where one article only can be taken, and where several can be taken. If there be but one thing which can be taken, so that it must be distrained or the party must be without his remedy, though it considerably exceeds the sum due, still no action lies. But if there be several things distrained, which appear to be much more than sufficient, the party may resort to this action for an excessive distress. -Per Lord Ellenborough, in Field v. Mitchell. 6 Esp. 71.

337. A tithe-owner seized under a distress for Rent-Charge, a rick of wheat. The wheat, without the straw, was more than sufficient to satisfy the distress. The tenant was under agreement with his landlord to consume the straw on the premises. The tithe-owner sold the rick on the terms that the purchaser should leave the straw on the premises, held, he was justified in so doing, and that he was not bound to sell the wheat and straw together, and consequently the distress was not excessive.-Roden v. Eyton, 12 Jur. 921, C. P.

338. There can be no remedy on the statute of Marlbridge where there is a remedy at the common law, nor if the plaintiff has recovered in replevin, can he afterwards bring an action on that statute; for an action on that statute is founded on there being a cause of distress, of which the recovery in replevin shows there was none. Moreover, in replevin, damages were recoverable for the taking, and a man shall not be permitted to say there was a cause of

distress, after he has recovered upon the ground of its being unlawful.-Gilb. dist. 68.

339. A distress cannot be severed, therefore a horse and cart may be distrained for a small demand, if there is no other distress.-Clarke v. Tusket, 2 Vent. 183.

340. An action will lie for an excessive distress, although the goods are not removed so as to prevent the tenant carrying on his business.-Bayliss v. Fisher, 7 Bing. 153.

341. An arrangement between the parties respecting the sale of the goods, or the rent, does not prevent the right of action for an excessive distress.Holland v. Bird, 3 M. & S. 363; 10 Bing. 15. Willoughby v. Backhouse, 2 B. & C. 821.

342. In an action for an excessive distress, the question is what the goods would have sold for at a broker's sale; if it be excessive, the plaintiff is entitled to recover the value of the excess sold.Wells v. Moody, 7 C. & P. 59.

343. An action for an excessive distress may be maintained where the excess consists wholly in seizing growing crops, the probable produce of which is capable of being estimated at the time of the seizure, but the measure of damages is not the value of the crops, but the inconvenience and expense which the tenant sustains in being deprived of the management of them, or which he is put to in procuring sureties to a larger amount than he would otherwise have to do in replevying the crops.Piggot v. Birtels, M. & W. 441.

344. As to costs and proceeding in new county courts, see Nos. 328, 329, 330, 331, 332.

« EelmineJätka »