distrained subject to a condition (in accordance with the custom of The overplus, which is to be handed to the sheriff for the owner's use, after satisfying the rent and charges, means the overplus after payment of the reasonable charges. Where the distrainor receives from the broker the overplus, and makes no objection as to the reasonableness of the charges, it is a question for the jury whether he accepted such balance in satisfaction or not, and if not, whether it was sufficient to satisfy the real balance after deducting the reasonable charges (x). If the distrainor hands over the overplus to a third party, no action for money had and received can be maintained against him (y). The remedy is by an action on the statute for not leaving the overplus with the sheriff (z). By 11 Geo. II. c. 19, s. 10, any person lawfully taking any distress for any kind of rent may impound or otherwise secure the distress so made on the most fit and convenient part of the premises chargeable with the rent, and may appraise, sell and dispose of the same upon the premises, in like manner and under the like directions and restraints as any person may do off the premises by virtue of the 2 W. & M. c. 5. The 1 & 2 P. & M. c. 12, s. 2, which enacts,—that no person shall take for keeping in pound, impounding or poundage of any distress, above 4d. for any one whole distress that shall be so impounded-does not extend to cases where goods are impounded under the foregoing section of the 11 Geo. II. c. 19 (a). An appraisement on the premises under the last-mentioned section does not so change the property, that the tenant may not replevy them, before an actual sale (b). The sale of growing crops is not authorized by the 2 W. & M. c. 5, nor by the 11 Geo. II. c. 19, s. 8, till after appraisement, and that cannot be made till they are ripe. Hence a tenant whose growing crops have been seized, as a distress for rent, before they were ripe, cannot maintain an action upon the case against the landlord for selling the same before the five days, or a reasonable time have elapsed, such sale being wholly void (c). (t) Ridgway v. Lord Stafford, 6 Exch. 401. (u) Wilmot v. Rose, 3 E. & B. 563. (z) Yates v. Eastwood, 6 Exch. 805. (b) Jacob v. King, 5 Taunt. 451. 1 H In order to prevent excessive charges by brokers and other persons employed to make distresses on poor tenants, it was enacted by 57 Geo. III. c. 93, s. 1, that no person making any distress for rent, where the sum due shall not exceed 201., shall take any other charges than those mentioned in the schedule annexed to the act, which are as follows: Levying distress . Man in possession, per day Appraisement, where by one broker or more, 6d. in the £ on the value of the goods. Stamp, the lawful amount thereof. All expenses of advertisement, if any such Catalogues, sale and commission, and delivery of goods, 1s. in the £ on the net produce of the sale. This statute has not repealed the 2 W. & M. sess. 1, c. 5, s. 2, (ante, p. 682,) so as to make an appraisement by one broker sufficient (d). Under the 57 Geo. III. c. 93, parties aggrieved may apply to a J. P. See sections 2, 3, 4, and 5. But the sixth section is general, for by that-Every broker or other person making and levying any distress whatsoever, shall give a copy of his charges, and of all the costs and charges of any distress whatsoever, signed by him, to the person on whose goods the distress is levied, although the amount of rent demanded exceed 201. This section only applies to persons actually interfering in making the distress, and therefore a landlord who does not personally interfere in the distress, is not liable for the neglect of the broker employed by him, in not delivering a copy of his charges (e). The provisions of the above statute have, by 7 & 8 Geo. IV. c. 17, been extended to distresses for land-tax, assessed taxes, rates, tithes, &c. for any sum not exceeding 201. VIII. Pound Breach and Rescue (ƒ). 1. Of Pound Breach. - An action for a pound breach lies, where a person distrains cattle damage feasant in his land, or for rent or services, and puts them into the common pound, or into another pound or place, which shall be said to be a lawful pound, and the owner of the cattle or other person takes the cattle out of the pound, and drives them where he pleases (g). If a person sends his servant to distrain for rent or services, and the servant distrains (d) Allen v. Flicker, 10 A. & E. 640. (e) Hart v. Leach, 1 M. & W. 560. (f) A summary remedy is given in cases of pound-breach and rescue, where cattle are taken damage feasant by 6 & 7 Vict. c. 30. (g) F. N. B. 100, a. the cattle, and impounds them, and a stranger takes them out of the pound, the action must be brought by the master and not by the servant for it is the master's pound (h). If a person distrain cattle for damage feasant, and put them in the pound, and the owner, who had common there, make fresh suit, and find the door unlocked, he may justify the taking away the cattle. If the owner break the pound, and take away his goods, the party distraining may have his action for pound breach, and he may also take his goods that were distrained wheresoever he find them, and impound them again (i). A pound-keeper is bound to receive every thing offered to his custody, and is not answerable whether the thing were legally impounded or not. If the cattle be wrongfully taken, the person who brings the cattle is answerable, and not the pound-keeper, unless it can be proved that he has transgressed the limits of his duty, and assented to the trespass. When the cattle are once impounded, he cannot let them go without a replevin, or without the consent of the party. When the cattle are in the pound, they are in the custody of the law; and if the pound is broken, the pound-keeper cannot bring an action, but the person who distrained them (k). See 2 W. & M. sess. 1, c. 5, infra. 2. Of Rescue.-Rescue, as far as the same relates to distress, means the taking away and setting at liberty, against law, a distress taken (1). Rescue lies, where a person distrains for rent or services, or for damage feasant, and is desirous of impounding the distress, and another person rescues the distress from him (m). The party distraining must be in possession of the distress, otherwise there cannot be a rescue. Although rescue will not lie at the suit of a person who is prevented by another from making a distress, yet an action on the case will lie for the disturbance (n). If a person send his servant to distrain, and rescue be made upon the servant, the action must be brought by the master who sustains the injury, and not by the servant (o). If a distress be taken without cause, where rent is not due (p), the owner may make rescue before the distress is impounded (q). So, if the owner tender the rent before distress taken (r). 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 (s). as The action of rescue has fallen into disuse; the usual remedy at this time is by an action on the case, under 2 W. & M. sess. 1, c. 5, s. 4, which enacts, that-Upon any pound breach, or rescue of goods or chattels distrained for rent, the party grieved shall, in a special 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. The word treble refers to costs as well as damages (t). Proof of a tender of the rent after the impounding of distress, will not bar an action on this statute (u). "Tender upon the land before the distress makes the distress tortious, tender after the distress, and before the impounding, makes the detainer and not the taking wrongful; tender after the impounding makes neither the one nor the other wrongful, for then it comes too late, because then the cause is put to the trial of the law to be there determined" (x). A plea of recaption upon a rescue must aver that the recaption was on fresh pursuit (y). An action under this section is not a penal one, so as to entitle the defendant to give the special matter in evidence under the general issue by virtue of 21 Jac. I. c. 4 (z). IX. Of abusing the Distress, and of Irregularity in the Proceedings by the Party distraining. An abuse of the distress makes the party distraining a trespasser ab initio, except where it is otherwise provided by statute (a). In trespass for breaking and entering the plaintiff's house, and taking and carrying away his goods, the defendant justified the taking and carrying away the goods, as a distress for damage feasant: replication, that after the distress, the defendant converted them to his own use: on demurrer, it was urged, that the replication was a departure; for it did not support the plaintiff's declaration in trespass, but showed rather that he ought to have brought trover on the conversion; but the court overruled the objection, observing, that he who abuses a distress is a trespasser ab initio, and, therefore, if in trespass, the defendant justifies nomine districtionis, the plaintiff may show an abuse, and it is not a departure, but will support the declaration: and so it does in this case; for the conversion is a trespass or trover at the plaintiff's election; and the matter disclosed in the replication makes good his election; for it proves it a trespass as well as a trover (b). But where a landlord distrains for rent, amongst other things, goods which are not distrainable in law, and the tenant pays the amount of the rent and the costs of distress, upon which the distress is withdrawn altogether, the tenant is entitled, in an action of trespass, to recover only the actual damage sustained by the taking of those particular (t) Lawson v. Story, Ld. Raym. 19. See Gray on Costs, 182. (u) Ellis v. Taylor, 8 M. & W. 415. (y) Rich v. Woolley, 7 Bingh. 651. (a) See the statutes, infra. (b) Gargrave v. Smith, Salk. 221; but in the case of a distress for rent, such a replication, since the 11 Geo. II. c. 19, would seem to be a departure. goods, and not the whole amount paid by him; and in such a case the distrainor is a trespasser ab initio only as to the goods which were not distrainable (c). By 11 Geo. 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 itself shall not be deemed unlawful, nor the distrainor a trespasser ab initio, but the party grieved may recover satisfaction for the special damage he has sustained and no more in an action of trespass, or on the case, at the election of the plaintiff'; and if he recover, he shall have full costs. In case for an irregular distress under the foregoing clause, it is necessary to state correctly to whom the rent distrained for is due (d). The section says the tenant shall recover for the damages he has sustained "and no more." Where therefore no actual damage has been sustained no action can be maintained (e). Although the statute gives the option, yet the tenant must pursue the remedy proper under the circumstances (f); trespass, if the ir regularity be in the nature of an act of trespass,-case, if it be in itself the subject-matter of an action on the case (g). Thus where the distrainor remain fifteen days on the premises, it was held, that he was liable in trespass, at all events for the removal of the goods (h), and, it would seem, for the remaining on the premises only (i). But where goods which had been fraudulently removed off the premises of the plaintiff were retained possession of by the defendant, after he had accepted the rent in arrear and the charges of the distress from the plaintiff, it was held, that the mere retaining possession of them was not a trespass (k). Note too, that in this case the goods had been already impounded. The trespass may be waived, and case brought for the consequential damage by the removal, &c. of the goods (); but this cannot be done if the injury is to the realty (m). "There is no doubt that, where there is a direct injury, and also a consequential damage, that may form the subject-matter either of case or trespass, but where there is a direct injury to the soil and freehold, there is no other remedy but trespass" (n). Where, however, a declaration states a wrong which (c) Harvey v. Pocock, 11 M. & W. 740. (d) Ireland v. Johnson, 1 B. N. C. 162. But the rule is, that where an action is founded on a breach of duty, it is not necessary to state a contract at all. Marshall v. York and Newcastle Railway, 11 C. B. 655. (e) Rodgers v. Parker, 18 C. B. 112. (f) Vertue v. Beasley, 1 M. & Rob. 21. (g) Messing v. Kemble, 2 Campb. 115. (h) Winterbourne v. Morgan, 11 East, 394. (i) Per Denman, C. J., Ladd v. Thomas, 12 A. & E. 126; Evans v. Elliott, 5 A. & E. 142; Holmes v. Wilson, 10 A. & E. 503; Bowyer v. Cook, 4 C. B. 236; but in the two last cases the original entry was a trespass, and it is clear that every continuation of an original trespass is a fresh trespass. Evans v. Elliott was a case of replevin. (k) West v. Nibbs, 4 C. B. 172. See Hartley v. Moxham, 3 Q. B. 701. (1) Smith v. Goodwin, 4 B. & Ad. 413; Holland v. Bird, 10 Bingh. 15. (m) Hudson v. Nicholson, 5 M. & W. 437. (n) Weeton v. Woodcock, 5 M. & W. 594, per Parke, B. |