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was held ill on special demurrer, assigning for cause that the plea did not show that the rent was satisfied by the former distress

What

amounts to

a rescue.

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 b. 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 d. 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 e.

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 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

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pound, the hayward is to be considered the mere servant of the occupier.

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 impound 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.

for rescous

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- or pound tels distrained for rent, the party grieved shall, in a special breach. action 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 statuted. A plea of recaption, after a rescue, must aver that the recaption was on fresh pursuite.

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; 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

Rex v. Bradshaw, 7 C. & P. 19.

233. Coleridge.

bl Inst. 47. b. 160. b.

Lawson v. Story, 1 Ld. Raym.

4 Firth v. Purvis, 5 T. R. 432. Rich v. Woolley, 7 Bing. 651. 5 M. & P. 663.

When a distress

shall not be

deemed unlawful, nor

trespasser

account of a

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 initioa. 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 done by the party distraining, or his agent; the distress shall the party not be deemed unlawful, nor the distrainer a trespasser ab making it a initio, but the party grieved may recover satisfaction for the ab initio, on special damage in an action of trespass or on the case, at the defect or ir. election of the plaintiff; and if he recover he shall have full regularity. costs." But by s. 20, "no tenant or lessee shall recover in such action, if tender of amends has been made before action brought." By stat. 17 Geo. II. c. 38. s. 8, "where any distress shall be made for money justly due for the relief of the poor, 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."

Remedy for

an exces

sive 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

a 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 t. Morgan, 11 East,
395, ante, 811.
Smith's Leading
Cases, 66.

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

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. 8d. The ground of that decision was, that gold and silver were of a certain and known value; but it was said that in all other things of arbitrary and uncertain value, the action must be upon the statute ". If a party distrains a single chattel, far exceeding the amount of rent due, he will not be liable to an action for excessive distress, if there be not other sufficient distress on the premises. It is not for every trifling excess that this action will lie, it must be disproportionate to some extent; express malice, however, is not necessary d. A landlord is not bound to calculate very nearly the value of the property seized, but he must take care that some proportion is kept between that and the sum for which he is entitled to take it e.

In order to support this action, the plaintiff need not prove the precise amount of rent due, as stated in the declaration, the substantial allegation being, that more was distrained for than was actually due. Though the tenant tendered the rent before distress, whereby the distress was rendered unlawful, he may abandon his action of trespass and sue in case 8: but trespass or case will lie under such circumstances b. A recovery in replevin is a bar to an action for an excessive distressi.

• Id. Sturch r. Clark, 1 N. & M. 6.

* Moor v. Munday, cited in Hutchins v. Chambers, 1 Burr. 590.

• Field v. Mitchell, 6 Esp. 71. Avenell v. Croker, M. & M. 172.

4 Per Lord Ellenborough, C. J., in Field v. Mitchell, supra.

* Per Bayley, J., in Willoughby . Back house, 2 B. & C. 823. And see Sells v. Hoare, 1 Bing. 401. 8 Moore, 451. It seems that an action on the case does not lie against a landlord for distraining for more than the actual arrears of rent, unless the distress taken be of larger

value than will satisfy the actual arrears. Wilkinson v. Terry, 1 M. & Rob. 377. Parke.

f Sells r. Hoare, 1 Bing. 401. In case for an irregular distress, it is necessary to state correctly to whom the rent distrained for is due; for a variance in this respect is fatal. Ireland v. Johnson, 1 Bing. N. C. 162. 4 M. & Scott, 706.

Branscomb v. Bridges, 1 B. & C. 145. 3 Stark. 171.

h Holland v. Bird, 10 Bing. 15. 3 M. & Scott, 363.

1 Philips v. Berryman, S. N. P. 679. 3 Doug. 286.

Excess in seizing growing crops.

In an action for a vexatious and excessive distress, the plaintiff having received the taxed costs of his replevin on the distress, was held not entitled to recover, as damages, the extra costs occasioned to him by the replevin. A landlord is able to some damages in an action on the case for an excessive distress, 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 been in replevying the crops. The question in such an action is, what the goods seized would have sold for at a broker's sale. If it be excessive, the plaintiff is entitled to recover the fair value of them ".

Where a landlord distrained for more than was due, and removed the goods to an auctioneer's, who, upon receiving notice from the tenant not to sell, delivered back the goods; it was held, that as some rent was due, the auctioneer was not liable to the tenant in trovera.

If the situation of the premises be strictly described, it must be proved as laid. Where they were stated to be in the parish of St. George the Martyr, Bloomsbury, and were proved to be in the parish of St. George, Bloomsbury, the plaintiff was nonsuited. The broker who made the distress, is a competent witness for the plaintiff, but not for the defendant.

a Grace r. Morgan, 2 Bing. N. C.
534. 1 Hodges, 348.

Piggott v. Birtles, 1 Mees. &
Wels. 441. 2 Gale, 21.

Wells r. Moody, 7 C. & P. 59.
Parke.

d Whitworth v. Smith, 1 M. & Rob. 193. 5 C. & P. 250.

e Harris v. Cooke, 2 Moore, 587. Taunt. 539.

Field v. Mitchell, 6 Esp. 73.

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