the 12 & 13 Vict. c. 92, s. 5 (ibid.), does not apply to all takings and confinement of animals under all circumstances(z). 759 Actions for unlawful and excessive distresses.-If a landlord has distrained for rent, no rent being in arrear or due, the proper remedy is by action upon the statute for double the value of the things distrained (ante, p. 656). If the landlord has distrained for more rent than is due, and the tenant has tendered the amount due before the distress made, his remedy, if a distress is afterwards made, would be either by replevin, or an action for a trespass, or for a wrongful seizure and conversion of the things distrained. If the tender is made after the distress, an action would be maintainable for the detention of the property(a). The mere retaining by the landlord of the goods distrained after the tenant has gained a right to have them delivered up to him will not render the landlord liable to an action for a trespass. A landlord, therefore, who refuses a proper tender, is not to be regarded as a trespasser merely by reason of his non-feasance in failing to deliver up the distress on being required so to do, but his refusal may amount to evidence of a conversion(b). If a landlord makes a second distress for the same rent when he might have taken sufficient at first, he is liable to an action for the wrongful conversion of the things seized under the second distress(c). The wrongful seizure of beasts of the plough, or of the tools and implements of a man's trade, may be made the foundation of an action of trespass as well as of an action upon the case(d). By the 30 & 31 Vict. c. 142, s. 10, a defendant against whom an action for malicious prosecution, illegal arrest, illegal distress, assault, false imprisonment, libel, slander, seduction, or other action of tort has been brought in a superior court, may, on an affidavit that the plaintiff has no visible means of paying costs in case of a verdict against him, apply to a judge to stay proceedings, until the plaintiff gives security for costs, or satisfies the judge that he has a cause of action fit to be tried in a superior court; and the judge may make an order accordingly, or may remit the case for trial before a county court, as he may think best. 760 Parties to be made plaintiffs.-A person from whose possession goods and chattels have been taken is entitled to replevy them, and try the (z) Machell v. Ellis, 1 C. & K. 685. Mason v. Newland, 9 C. & P. 575. (d) Nargett v. Nias, 1 Ell. & Ell. 439; 28 Law J., Q. B. 143. lawfulness of the taking. Thus, he who hath the goods of another pledged to him, or who hath the cattle of another to manure his land, has a sufficient property to maintain replevin(e). If the cattle of a feme sole be taken, and afterwards she marry, the husband alone must bring the action, for the cattle rest exclusively in the husband by the marriage; but if the goods taken are those which the feme has as an executrix, she may join with her husband in the réplevin(f). An action for an excessive distress may be brought by a lodger or under-tenant whose goods have been taken, as well as by the lessee himself(g). Where the plaintiff was tenant of a house, in which were goods that had been assigned to his wife's trustee, who lived with them, but the plaintiff had the actual use and enjoyment of the goods, it was held he had sufficient special property in the goods to entitle him to maintain an action for an excessive distress(h). 761 Parties to be made defendants.-If a servant, authorized merely to distrain cattle damage feasant, drives cattle from the highway into his master's close, and there distrains them, the master will not be responsible for the wrongful act(i). Where a landlord authorized his bailiff to distrain for rent due to him from his farm tenant, and the bailiff by mistake distrained the cattle of another person beyond the boundary of the farm, and sold them, and paid over the money he received for them to the landlord, it was held that the landlord was not responsible for the trespass, unless he received the money knowing of the wrongful seizure, or unless he meant to adopt the act of the bailiff at all hazards(k). But if the landlord has appointed an inexperienced, insolvent, or incompetent bailiff, or has neglected to furnish him with proper instructions, he will be responsible in damages in an action for negligence (ante, p. 30). And every landlord who gives a broker a general authority to distrain is responsible if his broker exceeds his authority, by distraining things which are not distrainable(), or if he sells goods without having them duly appraised(m); but a landlord who does not personally interfere in making a distress (e) Co. Litt. 145; Winch, 26; Bac. Abr. REPLEVIN, F. G. (ƒ) Powes v. Marshall, 1 Sid. 172; Bro. Abr. Bar. & Feme, pl. 85. Blackborn v. Greaves, 2 Lev. 107. Serres v. Dod, 2 B. & P. N. R. 405. (g) Fisher v. Algar, 2 C. & P. 374. Bail v. Mellor, 19 Law J., Exch. 279. And see further as to parties to actions for the unlawful seizure and conversion, and unlawful detention of chattels, ante, pp. 443-448, 553-555. (h) Fell v. Whittaker, L. R., 7 Q. B. 120. (i) Lyons v. Martin, 8 Ad. & E. 512; ante, p. 31. (k) Lewis v. Read, 13 M. & W. 837. Freeman v. Rosher, 13 Q. B. 780. (7) Gauntlett v. King, 3 C. B., N. S. 59. (m) Hasler v. Lemoyne, 5 C. B., N. S. 530. is not liable for the neglect of the broker in not delivering a copy of his charges, etc., pursuant to the statute(n) (ante, p. 663). All persons who aid, or counsel, or direct, or join in a trespass, are, as we have seen, joint-trespassers, but one partner cannot drag another into a trespass without his previous consent, or without his subsequent concurrence. Where, therefore, one of several partners signed a distress-warrant in his own name on behalf of the firm, it was held that this was no proof that the distress was authorized by the firm, so as to render the other partners responsible for it. It must be shown, either by evidence before the transaction that they all joined in ordering the distress, or by evidence afterwards that they concurred in and received the benefit of it(o). 762 Declarations in replevin simply set forth that in a certain dwellinghouse, or in a certain close or common, in a certain named parish and county, the defendant took certain cattle or goods and chattels of the plaintiff (describing them), and that the plaintiff unjustly detains them against sureties and pledge until, etc., claiming damages. 763 Declarations for a wrongful and excessive distress.-If beasts of the plough or the tools of a man's trade have been wrongfully distrained, there being other goods of sufficient value on the demised premises to satisfy the rent, the ordinary declaration for a trespass in seizing and taking away the plaintiff's chattels correctly describes the true cause of action(p). A plaintiff cannot, under the common count for an excessive distress, i.e., for seizing more than was necessary, show that the defendant distrained for and sold goods exceeding the rent due, and a count for such a cause of action will not be allowed to be added at the trial, where it does not appear to have been a matter in dispute between the parties at the commencement of the action(g). 764 Declarations for distraining and selling goods without notice of distress or without appraisement, or for not selling for the best price.—A good cause of action may be shown by a declaration which alleges that the defendant wrongfully seized divers goods and chattels of the plaintif (enumerating them), of a certain specified value, then being upon certain premises of the defendant, as and for a distress for rent claimed by the defendant to be in arrear and due from the plaintiff to the defendant for the said premises, and afterwards wrongfully sold the said goods and chattels, without having given to the plaintiff (n) Hart v. Leach, 1 M. & W. 560. (0) Petrie v. Lamont, Car. & M. 96; ante, pp. 33, 446-448. (g) Lucas v. Tarleton, 3 H. & N. 116; 27 Law J., Exch. 246. a notice of the said distress and of the cause of taking the same, or left such notice at the chief mansion-house or other most notorious place on the said premises;—or wrongfully sold the said goods and chattels, without causing them to be duly appraised by two sworn appraisers();-or wrongfully sold the said goods and chattels for much less than the best price that could have been gotten for them, had they been sold with reasonable care and diligence. Selling under value is a distinct ground of complaint, and ought to be distinctly stated on the face of the declaration, if the plaintiff means to rely upon it(s). 765 Pleas in replevin-Non cepit.-Pleas in replevin are generally either pleas in bar, or in justification, or by way of cognizance, or by way of avowry. The defendant may either avow or justify, at his election. The general issue in replevin is non cepit, and this may be pleaded by one of several defendants. It is a simple traverse of the allegation in the declaration of the taking of the chattels, and merely alleges that the defendant did not take the cattle or the goods and chattels in the declaration mentioned. This is the proper plea when the defendant denies that he was the party distraining, or that he distrained in the place described in the declaration. If the defendant wishes to dispute the plaintiff's property in the goods, he must plead a plea specially alleging that the goods and chattels in the declaration mentioned were, at the said time when, etc., the property of the defendant, or of some named third party, and not the property of the plaintiff(). Under a plea of non cepit in an action of replevin the defendant may, under the Municipal Corporations Act, show that he was a constable appointed for a borough, and took the goods within the county wherein the borough is situate, but without the borough, on a charge that they had been stolen(u). 766 Acowries in replerin.-By 11 Geo. 2, c. 19, s. 22, it is enacted, that all defendants in replevin may avow or make cognizance generally that the plaintiff or other tenant of the lands and tenements whereon a distress was made enjoyed the same under a grant or demise at such a certain rent' during the time wherein the rent distrained for accrued, which rent was then due, and still remains due, without further setting forth the grant, tenure, demise, or title of such landland or landlords, lessor or lessors, owner or owners of such manor (r) Bishop v. Byrant, 6 C. & P. 484. (8) Thompson v. Wood, 4 Q. B. 498. (t) Com. Dig. PLEADER, 3 K. 11. Dover v. Rawlings, 2 M. & Rob. 544. (u) Mellor v. Leather, 1 Ell. & Bl. 619; 5 & 6 Wm. 4, c. 76, s. 76; post, ch. 12, s. 1. The common avowry or cognizance should show that the tenancy continued up to the time of the making of the distress(x). If the tenancy was determined at the time of the distress, but the tenant still continued in possession, and the distress was founded on 8 Anne, c. 14 (ante, p. 639), the avowry should be based on that statute. After setting forth the tenancy, the amount of rent in arrear, the time when it became due, etc.(y), the avowry or cognizance avows generally that the defendant took the cattle, goods, and chattels in the close in the declaration mentioned, as and for a distress for the rent due and in arrear, or that he took them as bailiff of the landlord. The landlord who authorized the distress, and the bailiff who seized by his directions, may both join in making the common avowry and cognizance. The general form of avowry, authorized by 11 Geo. 2, c. 19, s. 22, applies to rents only; but penalties for breaches of covenants respecting the cultivation of the demised premises, granted by deed, to be levied by distress, may be treated as rent(z). A cognizance by a defendant, as bailiff of an executor, for rent due to the testator is supported by proof of a distress by him in the name of the testator, and by his direction, but after his death, such distress, though made before probate, having been afterwards adopted and ratified by the executor(a). 767 Avowries for double rent, under the 11 Geo. 2, c. 19, s. 18, should show the nature of the tenancy: that the tenant had power to determine it by giving notice to quit; that he did give notice to quit at a time mentioned in such notice; that the tenancy became thereby determined; that the defendant did not deliver up possession at the time mentioned in such notice, and then became liable to pay double the rent which he would otherwise have paid; that a certain specified sum, being half a year, or three quarters of a year, of such double rent, became due, and that the plaintiff took the goods in tho declaration mentioned as and for a distress for such rent(b). 768 Avowries by joint-tenants, coparceners, and tenants-in-common.-We have seen that any one of several coparceners and co-heirs in gavelkind who has levied a distress may avow and justify the distress in his own right, and make conusance as the bailiff of the others, without averring or proving any express authority from them to distrain (ante, (2) Williams v. Stiven, 9 Q. B. 14. (z) Pollitt v. Forrest, 11 Q. B. 967. (a) Whitehead v. Taylor, 10 Ad. & E. 210. (b) Humberstone v. Dubois, 10 M. & W. 765. See Addison on Contracts, 316, 6th ed. |