III., c. 93, whereby it is enacted, "That no person whatsoever making any distress for rent, where the sum demanded and due shall not exceed the sum of £20 for and in respect of such rent, nor any person whatsoever employed in any manner in making such distress, or doing any act whatsoever in the course of such distress, or for carrying the same into effect, shall have, take, or receive out of the produce of the goods and chattels distrained upon and sold, or from the tenant distrained on, or from the landlord, or from any other person whatsoever, any other or more costs and charges for and in respect of such distress, or any matter or thing done therein, than such as are fixed and set forth in the schedule hereunto annexed, and appropriated to each act which shall have been done in course of such distress; and no person or persons whatsoever shall make any charge whatsoever for any act, matter, or thing mentioned in the said schedule, unless such act shall have been really done."

By sect. 2, a party aggrieved by a distress may apply to justices for redress, who may order treble the amount of monies unlawfully taken to be paid to the party complaining, together with full costs. The words of the section are, "If any person, &c., shall take, &c., any other or greater costs or charges than are set down in the schedule, or make any charge whatsoever for any act, matter, or thing mentioned in the schedule and not really done;" and it was held that these words did not apply to the case of a person bona fide thinking that he ought to have an appraisement, and other matters of detail, and charging for them, although such charges were not strictly lawful (y).

(y) Nott v. Bound, L. R. 1 Q. B. 405.

There is in sect. 6 of the above statute an enactment applicable to every distress, whether the sum distrained for be above or under £20. It is, "That every broker or other person who shall make and levy 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 or persons on whose goods and chattels any distress shall be levied, although the amount of rent demanded shall exceed the sum of £20." A landlord who does not personally interfere in the distress is not liable for the neglect of the broker employed by him to make a distress in not delivering a copy of the charges required by the statute (z).

A bailiff has no right to go on with a distress and sale for his expenses after his authority has been withdrawn by the landlord (a).

If

After appraisement and sale, the landlord is, under the 2 Will. & Mary, sess. 1, c. 5, s. 2, to leave "the overplus (b) (if any) in the hands of the said sheriff, under-sheriff, or constable, for the owner's use." he does not do so, and actual damage ensues, a special action on the case is maintainable (c). The proper course is to leave the overplus money with the sheriff, &c., and to return the surplus goods to the premises from whence they were taken (d).

(2) Hart v. Leach, 1 M. & W. 560.

(a) Harding v. Hall, 14 W. R. 646, 14 L. T. N.S. 410.

(b) After payment of rent and reasonable expenses of distress. Lyon v. Tomkies, 1 M. & W. 603.

(c) Rodgers v. Parker, 18 C. B. 112; Lyon v. Tomkies, 1 M. & W. 603; Yates v. Eastwood, 6 Exch. 805. See Evans v. Wright, 2 H. & N. 527, 27 L. J. Ex. 50. (d) Evans v. Wright, supra.

Tenant's remedies.

(h.) TENANT'S REMEDIES.

A distress is said to be wrongful when no rent is due at the time, or not so much rent as is distrained for, or where an excessive distress is taken, or where goods are distrained which are not by law the subject of a distress. It is said to be irregular where, although the distress itself is legal, some of the proceedings thereon are not in conformity with the statutes by which they are regulated.

At common law any irregularity committed in the course of a distress rendered the party distraining a trespasser ab initio (e). But by 11 Geo. II., c. 19, s. 19, "When 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 not be deemed unlawful, nor the distrainer a trespasser ab initio, but the party grieved may recover satisfaction in an action of trespass on the case.'

This statute does not apply to the case of a distress unlawfully made, as where a landlord, in distraining, breaks an outer-door (f).

The nature of the irregularity determines the form of action. If the irregularity be in the nature of an act of trespass, the landlord must bring trespass; and if it be in itself the subject-matter of an action on the case, he must bring case (g).

(e) Six Carpenters' Case 8 Co. Rep. 290.

(f) Attack v. Bramwell, 3 B. & G. 520, 32 L. J. Q. B. 146, per Blackburn, J., 149.

(g) Messing v. Kemble, 2 Camp. 115; Winterbourne v. Morgan, 11 East. 395; Etherton v. Popplewell, 1 East. 139; Wallace v. King, 1 H. Bl. 13.

At common law if a landlord distrained for rent When no rent is due at the where no rent was due, the tenant's remedy was by action of trespass.

But by 2 Will. & Mary, sess. 1, c. 5 (which first enabled a landlord to sell a distress taken for rent), it is provided and enacted, by sect. 5, "That in case any such distress and sale as aforesaid shall be made, by virtue or colour of this present Act, for rent pretended to be arrear and due, where in truth no rent is in arrear or due to the person or persons distraining, or to him or to them in whose name or names or right such distress shall be taken as aforesaid, that then the owner of such goods or chattels distrained and sold as aforesaid, his executors or administrators, shall and may, by action of trespass or upon the case, to be brought against the person or persons so distraining, any or either of them, his or their executors or administrators, recover double of the value of the goods or chattels so distrained and sold, together with full costs of suit."

In order to support an action under this statute, the goods distrained must have been sold (h).

time.

than is due.

The tenant may at common law bring an action on Distraining the case where the distress was made for more rent for more rent than was due (i), even though the goods actually distrained are of less value than the rent really due (j).

twice for the same rent.

If several distresses are made for one entire rent, Distraining and it can be shown that there were sufficient goods on the premises which might have been taken under

(h) Salter v. Bunsden, 4 Mod.

231;

715.

Masters v. Farris, 1 C. B.

(i) Carter v. Carter, 5 Bing. 406. (j) Taylor v. Henniker, 12 A. & E. 488.

For an excessive distress.

the first distress to satisfy the rent distrained for, the landlord will be liable at common law in an action on the case for distraining twice for the same rent, or the tenant may bring trespass, at his option (k).

The remedy for an excessive distress by the statute of Marlebridge, 52 Hen. III., c. 4, is an action on the case founded on the statute (7). A count in trover is often added in case the tenancy or the distress should be denied, or some goods should be taken away which are not in the inventory (m).

Whether a distress is excessive or not is a question for the jury (n); and if it be excessive, the plaintiff is entitled to recover the fair value of the goods, deducting for rent and expenses of distress (o).

The mere distraining of the goods to an excessive value above the rent due, without sale or removal, is sufficient to maintain the action on the statute (p). The measure of damages, where the goods are removed and impounded, is the loss of the use and enjoyment of the surplus of the goods; and if they are not restored before action, the plaintiff may claim the full value of the surplus (q). He may recover substantial damages even if he retain the use of the goods under the distress (r), and nominal if he cannot prove substantial damages (8).

(k) See supra, p. 206; Lear v. Caldicott, 4 Q. B. 123.

(7) Hutchinds v. Chambers, 1 Burr. 589.

(m) Bishop v. Bryant, 6 C. & P. 484; Spargo v. Brown, 9 B. & C. 935.

(n) Smith v. Ashforth, 29 L. J. Ex. 259. See Walter v. Rumbald, 1 Lord Raymond, 53.

(0) Wells v. Moody, 7 C. & P. 59 ;

Biggins v. Goode, 2 C. & J. 364; Knight v. Egerton, 7 Exch. 407. (p) Sells v. Hoare, 1 Bing. 401; Swann v. Earl of Falmouth, 8 B. & C. 456.

(9) Piggott v. Birtles, 1 M. & W. 441, 448.

(r) Bayliss v. Foster, 7 Bing.

153.

(s) Chandler v. Doulton, 3 H. & C. 553, 34 L. J. Ex. 89.