a return of the goods distrained for rent, the plaintiff may, after signing judgment against the defendant for not returning the demurrer book, tax the costs and issue execution for the costs, and the amount of the goods distrained as indorsed on the replevin bond, without executing a writ of inquiry (a).

Sureties on a replevin bond are not discharged by time being given to the plaintiff in replevin (6).

The Court will not set aside proceedings on a replevin bond because the action is commenced before breach, for it may be pleaded (c).

A replevin clerk, who is partner in an attorney's firm, must suc alone for the expenses of preparing a replevin bond, though it be prepared at the office of the firm (d).

(a) Middleton v. Bryan. 3 M. & S. 155.
(6) Moore v. Bowmaker. 2 Mars. 81. S. C.
Taunt. 379.

(c) Anon. 5 Taunt. 776.

(d) Browdon v. Brown. 2 B. & B. II.

CHAPTER XIX.

Remedies for Tenants against Landlords
(continued).

Of the Remedies for an unfounded, irregular, or excessive
Distress.

SECTION I. For Rent pretended to be Arrear.
SECTION II. For other supposed Right to distrain.

T has been seen that where the goods or cattle of a person have I been taken as a distress, whether on the ground that they are liable for rent-arrear or damage-feasant, the party so distrained upon may contest the distrainer's right by an action of replevin; beside that action, however, the law affords other remedies where the distress is unfounded; these are by action of trespass de bonis asportatis, or quare clausum fregit, for damages; or trover for the value of the thing distrained.

Trespass quare clausum fregit was the remedy commonly resorted to of old, not merely as a remedy for a distress wrongfully taken, but as a means of trying the title to lands and tenements, the title fre

quently coming into question in the course of that action: that action. however has of late years been in some degree superseded by that of replevin in the one case, and ejectment in the other.

Still, however, these actions of trespass, and that of trover, are open to the party who means to contest the validity of a distress. The proceedings have in effect much similarity; but in respect to proof of title (where the distress was for damage-feasant), the action of replevin being more strict than that of trespass for taking and carrying away the goods, the latter remedy is often preferred.

SECTION 1. Remedies for unfounded Distress for Rent pretended to be Arrear.

To entitle a man to bring trespass he must, at the time when the act was done which constitutes the trespass, either have the actual possession in him of the thing which is the object of the trespass, or else he must have a constructive possession in respect of the right being actually vested in him (a).

This action lies for an unlawful taking; as if the distress be made at night. So if beasts of the plough had been taken when other sufficient distress could have been had. So, if doors have been broken open (or enclosures thrown down), to make it, for the outer door can in no case be broken open, except under the direction of stat. 11 G. 2. c. 19. of which we have before treated.

But in distress for rent, if the outer door be open, the person distraining may justify breaking open an inner door or lock to find any goods which are distrainable (b).

So, even where the trespass was for breaking and entering the plaintiff's house and taking his goods, and the case in evidence was that the defendant having with him a constable, had entered the plaintiff's house to make a distress for rent. After he had told his business and began to make an inventory, the plaintiff's wife tore his paper, beat him and the constable out, and then blocked up the door; about an hour after the defendant with several others returned and demanded admittance, which being refused, he broke open the doors. It was ruled by Wilmot, J. that the distress having been lawfully begun and not deserted, but the defendant compelled to quit it by violence, this was a re-continuance of the first taking and so was lawful, though he could not when he first came have so broken open the doors (c).

Trespass, or Case.-The stat. 3 W. & M. sess. 1. c. 5. s. 5. provides, "that in case any distress and sale as aforesaid, shall be made

(a) Burser v. Martin. Cro. Jac. 46. Smith v. Milles. I T. R. 480.

(b) Bull. N.P. 81.
(c) Esp. N. P. 382.

by virtue or colour of that Act, for rent pretended to be in arrear and due, where in truth no rent is in arrear or due to the person or persons distraining; or to him or 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 so distraining, any or either of them, his or their executors or administrators, recover double the value of the goods or chattels so distrained and sold, together with full costs of suit."

The plaintiff gave a note of hand for rent arrear, and took a receipt for it when paid, the defendant afterwards distrained for rent, the plaintiff brought trespass; and it was holden, that notwithstanding this note, the defendant might distrain, for it is no alteration of the debt till payment.—But if A. indorse a note to B. for a precedent debt, and B. give a receipt for it as money when paid, yet if he neglect to apply to the drawer in time, and by his laches the note be lost, it will extinguish the precedent debt, and in an action he would be nonsuited (a).

If a landlord accept a bond for rent, this does not extinguish it, for the rent is higher, and the acceptance of a security of equal degree is no extinguishment of a debt, as a statute-staple for a bond: but a judgment obtained upon a bond is an extinguishment of it (a).

To covenant for rent against three defendants, it was pleaded, that of the rent 41/. was paid; that of the residue, two of the defendants had paid their shares, and that the defendant, Mitchel, gave the plaintiff a promissory note for his share payable at a banker's; that such note was dishonoured, whereupon the plaintiff sued Mitchel and had judgment by default on such note, which judgment was still unsatisfied. When the plea was pleaded, the defendant was under terms to plead issuably. The plaintiff treated it as no plea under a Judge's order, and signed judgment for want of a plea. On cause being shewn, the defendant's counsel contended that the plea was good; for that the action on the covenant averred in the judgment on the note, and the defendant had a right to avail himself of the point. L. Kenyon. "The judgment is a merger of the original cause of action where it is obtained immediately on the original. cause itself; but it is no merger, where it is on a collateral point, unless the fruits of it be obtained." The defendant's counsel then said, that at any rate the plaintiff ought not to have signed judgment; he ought to have demurred. 3 Burr. 1788. Ld. Kenyon. "I suspect that this plea is founded on knavery; it goes to defeat the justice of the case: but

(a) Bull. N. P. 182.

I fear that the plaintiff was not justified in treating it as no plea. He ought to have demurred." Rule absolute (a).

Where the tenant of premises under a lease, and at a rent payable half yearly, agreed to pay all taxes, except the landlord's property tax, which the landlord agreed to allow, and the tenant agreed to lay out 20%. in repairs, which the landlord also agreed to allow, but afterwards distrained for half a year's rent, and sold to the whole amount, without allowing either for repair or property tax, which he knew the tenant had paid to the collector; held that the tenant might recover, in respect of the property tax; but not in respect of the repairs, in an action for money had and received against the landlord (b).

A tenant, whose standing corn and growing crops have been seized as a distress for rent before they were ripe, cannot maintain an action upon the case under 2 W. & M. s. 28. c. 5. against the landlord or his bailiff, for selling the same before five days, or a reasonable time, have elapsed after the seizure, such sale being wholly void (c).

SECTION II. For other supposed Right to distrain.

If the distress were made for other supposed cause, than under pretence of rent arrear, when in truth it was unfounded, trespass also lies for the illegality.

After judgment vacated, and restitution awarded, the defendant brought trespass against the plaintiff for taking the goods, and the Court held that the action would lie; for by vacating the judgment it is as if it had never been, and is not like a judgment reversed by writ of error. But, in such case, it would not lie against the sheriff, who has the King's writ to warrant him; but the party must produce not only the writ, but the judgment (d).

Where the action is transitory (as trespass for taking goods) the plaintiff is foreclosed to pretend a right to the place, nor can it be contested upon the evidence who had the right: therefore possession is justification enough for the defendant, and it is sufficient for him to plead that he was possessed of Blackacre, and that he took the goods damage-feasant without shewing title.-But it is otherwise in trespass quare clausum fregit, because there the plaintiff claims the close and the right may be contested (e).

Trespass for taking and detaining his cattle at Teddington; the defendant justified taking them damage-feasant at Kingston, and that he carried them to Teddington and impounded them there. It was ob

(a) Drake v. Mitchel, et al. M. T. 42 G. 3. T.'s MSS.

(6) Graham v. Tate. 1 M, & S. 609.

(c) Owen v. Legh. 3 B. & A. 470.
(d) Bull. N. P. 84.

(e) Ibid. 89.

8

jected on demurrer that the justification was local, and therefore the defendant ought to have traversed the place in the declaration: sed non allocatur, for when the defendant says he carried them to Teddington, and impounded them there, they agree in the place; for if the defendant had not a right to take them, he was a trespasser at Teddington (a).

The general issue, in trespass, is "not guilty."

In trespass quare clausum fregit, the defendant may, upon "not guilty," give in evidence that he had a lease for years (but not that he had a lease at will, for that is like a licence which may be countermanded at pleasure), or that his servant put the cattle there without his assent; but he cannot give in evidence a right of common, or to a way, or any other easement; nor can the defendant give in evidence that the plaintiff ought to repair his fences, for want whereof the cattle escaped; nor that he entered to take his emblements or cattle; nor that he entered in aid of an officer for execution of process, or in fresh pursuit of a felon, or to remove a nuisance, nor that it was the freehold of A. and that he entered by his command or licence; for these are all matters of justification only (a).

So, the defendant cannot give in evidence, that the goods were seised as a heriot, or that they were distrained damage feasant, &c. (a). But he may give in evidence, or plead, that he was tenant in common with the plaintiff: but if he would take advantage of a stranger being so, he must plead it in abatement, for that will not prove him not guilty. So if there be two defendants, they may plead a tenancy in common in one of them, with the plaintiff (6).

In case of an absolutely stinted common in point of number, one commoner may distrain the supernumerary cattle of another: but not if any admeasurement be necessary; as where the stint has relation to the quantity of common land (c).

With respect to the plea of liberum tenementum, and to a new assignment, if the defendant say that the locus in quo is six acres in D. which are his freehold, and the plaintiff say they are his freehold, and in truth the plaintiff and defendant have both six acres there, the defendant cannot give in evidence, that he did the trespass in his own soil, unless he give a name certain to the six acres, for otherwise (says Dyer, 23. c. 147.) the plaintiff cannot make a new assignment (d).

It is certain, that where the action is transitory (as for taking the plaintiff's goods), the defendant, if he would plead the locus in quo to be his freehold, and that he took the goods damage-feasant, must ascertain the place at his peril; because by his plea he has made that local which was at large before: for the taking of the goods is the gist of

(a) Bull. N. P. 90.

(6) Ibid. 34. 91.

(c) Hall v. Harding. I BL. R. 673.
(d) Bull. N. P. 92.

M M