The plaintiff claims a return of the said goods and chattels or their value, and £50 for their detention.

Defence.

1. The plaintiff was charged with stealing the said goods and chattels mentioned in the statement of claim, and was ultimately acquitted of such charge.

2. Prior to his acquittal, the said goods and chattels were lawfully in the defendant's possession as a constable, and the defendant being ignorant as to who was the rightful owner thereof before the commencement of the suit and within a reasonable time of his becoming possessed of the said goods and chattels, made an application to a magistrate having jurisdiction in the matter to make an order for the delivery of the goods to the party who should seem to be the rightful owner thereof.

3. The magistrate heard the said application, and adjourned it to a day which has not yet expired.

4. The defendant as such constable as aforesaid in the performance of his duty and not otherwise, detained and still detains the said goods and chattels until an order has been made.

Reply.

1. The plaintiff joins issue upon the statement of defence. 2. The plaintiff will further object that the matter pleaded by the defendant constitutes no defence in law to this action.

3. Claim in an Action for Detinue with an Alternative Claim for the Conversion of the Goods.

1. The defendant detains from the plaintiff the plaintiff's goods and chattels, that is to say, a quantity of household furniture, full particulars of which (exceeding three folios in length) accompany this claim.

2. In the alternative the plaintiff says that he has suffered damage by the defendant refusing after demand to deliver up to him the goods and chattels mentioned in the 1st paragraph.

The plaintiff claims :

(1) The return of the said goods or their value, and £100 damages for their detention, or

(2) £500 damages for their conversion.

Dilapidations.

See Clergymen-Landlord and Tenant.

The nature of the

distress.

Distress (a).

1. Claim in an Action for Distress against Landlord where the Latter personally distrained.

1. On the 3rd of May, 1882, the defendant made an illegal distress upon the plaintiff's premises, No. 5, Pentonville Street, Brighton.

(a) Distress is one of the few cases where a man is allowed to right himself without calling in the aid of the law, and this somewhat anoma

remedy by lous privilege is conferred upon two classes of persons. An occupier of land has a right to distrain anything that he may find trespassing upon his land, and actually doing damage there, damage feasant as it is called; and a landlord has a right to distrain on all goods and chattels (with certain exceptions) to be found on the demised premises for arrears of rent. In both these cases the owner of the goods distrained can only get them back in one of two ways, either by paying the rent due or making amends for the trespass as the case may be, or by entering into a replevin bond conditioned to prosecute an action within a limited time, raising the question of the legality of the distress.

When distress for

rent may be made.

In entering into a replevin bond the party gives security both for the amount of damage done or rent due and also for the estimated costs of the action.

In executing a distress great care is necessary to avoid any illegal act or irregularity. A distress for rent can only be made between sunrise and sunset (it is otherwise in the case of distress damage feasant). It cannot be made till the rent is actually in arrear, and as that is not till the end of the day on which it is due, in practice a distress cannot be made till the day succeeding the day it is payable. This rule, coupled with another, that the distress must be made during the continuance of the term, led to the result in the case of the last instalment of rent due on the determination of a term, that it could not be distrained for at all. But this injustice has been remedied by statute (the 8 Anne, c. 14), which provides that a landlord may distrain within six calendar months after the determination of the tenancy, provided (1) the tenant remain in possession, and (2) the landlord's reversion continues.

But though rent cannot be distrained for until it becomes due, if a tenant agrees to pay rent in advance, the rent is due within the meaning of this rule, and can be distrained for as soon as the time mentioned for

2. The defendant trespassed in the said premises, and removed and converted to his own use a pianoforte belonging to the plaintiff.

its payment in the agreement has arrived. Therefore, where a person covenanted to pay rent in advance, and he subsequently filed his petition for liquidation, and the trustee went into possession, and then an instalment of rent fell due in advance, it was held that the landlord was entitled to distrain for such rent. (Er parte Hale, in re Burns, 1 Ch. D. 285; 45 L. J. Bank. 21.)

Where a tenant holds under an agreement for a lease merely, he holds under the same terms as if a lease had been actually granted, and if by the terms of the agreement the landlord is entitled to distrain for rent due in advance, the latter is justified in doing so. (Walsh v. Lonsdale, 21 Ch. D. 9 (C. A.).)

The Court, however, has power to restrain a landlord from exercising his legal right of distress "upon such terms and conditions as the Court shall think just." In Shaw v. The Earl of Jersey, 4 C. P. D. 120, 359, such an injunction was granted for a fortnight on the terms of the tenant bringing the rent into Court.

Again a distress as a rule can only be made on the demised premises. It will be illegal if made anywhere else except in the following cases: (1) The Crown may distrain anywhere; (2) if the landlord coming to distrain see the cattle on the land and the tenant before his face drives them off the land to avoid a distress, the landlord may follow and distrain; (3) by statute 11 Geo. 2, c. 19, a landlord is authorised within thirty days to follow goods that have been fraudulently or clandestinely removed to avoid a distress; and (4) by 11 Geo. 2, c. 19, a landlord may take and seize any of the tenant's cattle depasturing upon any common appendant or appurtenant to the demised premises.

In making a distress, if the landlord or his agent force an entrance, or break an outer door, or in fact enter except in the usual manner adopted by persons having access to the building, the distress is illegal.

Where dis tress must be levied.

The distress is also illegal if goods or chattels are seized which are exempt from distress. The general rule is that all personal chattels found on the demised premises at the time of the distress, whether the property of a tenant or a stranger, may be taken, but this rule is subject to the following exceptions: 1. Things annexed to the freehold, as Things fixtures. 2. Things delivered to a person exercising a public trade, to absolutely be carried, wrought, worked up, or managed in the way of his trade, as and conmaterials sent to be made into cloth, cloth sent to a tailor to be made ditionally into a coat, corn sent to a miller to be ground, &c. 3. Things in actual privileged use, as the tools a man is using, the watch he is wearing, the horse from dishe is riding. 4. Animals feræ naturæ. 5. Goods in the custody of the tress. law. 6. By the 34 & 35 Vict. c. 79, the goods of lodgers are protected from distress by the superior landlord. 7. Beasts that gain the land and sheep. 8. Instruments of husbandry. 9. The instruments of a man's profession or calling. 10. Growing crops. The four last classes of chattels are only conditionally privileged from distress; they may not be taken if any other distrainable chattels can be found; but in the last resort they are liable.

Where a distress is illegal either owing to the time, manner, or place Distinction of making it, or from the nature of the goods taken, the party distrained between on has an action against the distrainer for damages. The same liability illegal and arises where a distress is made by the landlord, no rent being due, or irregular after a tender of the rent, or after a former distress. In all these cases distress. the distress is more than irregular, it is illegal, and the distrainer is a trespasser ab initio. He may sue the distrainer in trespass or trover;

Effect of irregular distress on the rights of the parties.

Excessive distress:

and an averment of special damage will not be necessary to support his action. It has been decided that in such a case the measure of damages is the value of the goods seized, and no deduction can be allowed for any rent actually due (Attack v. Bramwell, L. J. 32 Q. B. 146); but under the present system no doubt a landlord sued for illegal distress could, by means of a counter-claim, set off any rent due to him.

An irregular distress is a very different thing, and the plaintiff requires to prove more to succeed in his action. An irregularity arises in a case where rent is really due, and a distress has been legally made in respect to the time, manner, place, and subject of the distress, but afterwards the landlord or his agent has been guilty of some irregularity in dealing with the distress, as where any irregularity is committed with regard to the appraisement and sale of the distress, or where the landlord remains an unreasonable time on the demised premises after the five days from the distress, at the end of which time the distress may be sold. Any irregularity of this and a similar kind does not render the distrainer a trespasser ab initio. (11 Geo. 2, c. 19, s. 19, altering the common law.) But the party aggrieved by such unlawful act of irregularity has, an action for any special damage which he may have suffered by reason of it. The distress remains good, but the party aggrieved may bring an action to recover anything he has actually lost in consequence of the irregularity, and in such a case he must allege in his claim special damage.

Another action given to a person where goods have been distrained is an action for excessive distress, that is to say, for taking a greater quantity question of of goods than is necessary to satisfy the distress and costs. "When a

excess is

for jury.

landlord is about to make a distress, he is not bound to calculate very nicely 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." It is a question for the jury whether the distress is excessive or not, and they may find that it is excessive, though the net proceeds of the sale did not actually amount to the rent due. (Smith v. Ashforth, L. J. 29 Ex. 259.)

Prior to the 46 & 47 Vic. c. 61, a landlord was entitled to distrain for six years' arrears of rent, and now, except in those cases which fall within it, he is still so entitled. See the 46 & 47 Vict. c. 61.

By the 11 Geo. 2, c. 19, s. 21, it is enacted that in all actions of trespass, or upon the case, against persons entitled to rents or services, their bailiffs or other persons, relating to any entry upon premises chargeable with such rents or services, or to any distress or seizure thereupon, it shall be lawful for the defendants to plead the general issue, and give the special matter in evidence, inserting in the margin of the plea the words "by statute." Under the new rules a defendant is still entitled to place on the record this plea, with this additional provision that the pleader must now, in addition to inserting in the margin of his plea the words "by statute," specify the year of the reign in which the Act of Parliament on which he relies was passed, and also the chapter and section of such Act, and specify whether such Act is a public or private Act. (Order XXI. r. 19.) "Under the plea of not guilty by statute the defendant may give in evidence that he entered the plaintiff's house under a warrant of distress for rent, and was forcibly turned out of possession, and that he thereupon re-entered, and broke open the door of the house, in order to seize the plaintiff's goods. Everything which

Defence.

1. At the time of the said distress the plaintiff was the defendant's tenant of the said premises, and there was due and owing and in arrear to the defendant the sum of £10 in respect of one half-a-year's rent.

2. The defendant entered into the said premises to distrain for the said rent, and the trespass complained of was in the due exercise of the defendant's right of distress.

Reply.

The plaintiff joins issue upon the statement of defence.

2. Claim against Landlord and Broker for Illegal Distress.

1. On the 30th of March, 1879, the defendant A. B., acting by the orders and directions of the defendant C. D., entered and trespassed on the plaintiff's premises, No. 17, Gray Street, Chelsea, and made an illegal distress therein.

2. A table, a sideboard, six chairs, and two beds, belonging to the plaintiff, were seized and removed by the defendant A. B., and subsequently sold by order of the defendant C. D., and they are wholly lost to the plaintiff.

The plaintiff claims £100 damages.

3. Claim in an Action against Landlord, and Broker for an Illegal and Irregular Distress.

1. On the 13th of September, 1880, the defendant A. B., acting by the orders and directions of the defendant C. D., entered and trespassed on the plaintiff's premises, No. 13, Wilton Street, Bedford, and made an illegal distress there,

he might lawfully do in order to make the distress is admissible in evidence under this plea. The plea puts in issue not only the matter of justification, but the tenancy and ownership of the goods." (Addison on Torts, 4th ed. 561. . . . Eagleton v. Gutteridge, 11 M. & W. 469; Williams v. Jones, 11 Ad. & E. 643.)

With regard to following and distraining upon goods which have been fraudulently removed, it was decided (Gray v. Stait, 11 Q. B. D. 668; 52 L. J. Q. B. 412, C. A.), that a landlord is not justified under 11 Geo. 2, c. 19, s. 1, in following and seizing, after the expiration of the tenancy, and after the tenant has given up possession, goods which have been fraudulently removed from the demised premises for the purpose of defeating the landlord's right to distrain for rent.