of the landlord to receive the money due to him for the rent, as well as the lawful charges attending the distress.

PATTESON, J. I think the tender to the landlord was sufficient. Independently of the act of parliament, a tender to the landlord of a sum sufficient to cover the rent and charges would be clearly good. The act does not prevent a tenant from tendering his rent to his landlord; but if he tenders it to the broker, and the latter takes more than the sum he is entitled to, then it subjects the broker to a penalty of treble the amount of the sum unlawfully charged. Rule for a new trial refused.

Scarlett and Platt, in the following Trinity term, shewed cause against the rule for arresting the judgment. The seventh count is in case, and not trespass. Branscomb v. Bridges, 1 B. & C. 145, shews, that where the goods of a tenant are distrained for rent in arrear after the amount has been tendered, the tenant may bring an action on the case for an excessive distress. It was there objected, *418] that the taking of the plaintiff's goods after the rent had been tendered was the subject of an action of trespass. But the Court held, that, assuming that to be so, the plaintiff was at liberty to waive the trespass and bring an action on the case. So, here, assuming that the second seizure of the goods was a trespass, the plaintiff may waive it, and bring an action on the case for taking his goods and converting them.

Coltman, contrà. In Branscomb v. Bridges, 1 B. & C. 145, the Court held in effect that there were two causes of action, viz. trespass for an illegal entry, and case for an excessive distress taken, and that the plaintiff had his election of either remedy; and it must undoubtedly be conceded that in certain cases a party may have either trespass or case at his election. The principle seems to be correctly stated by Mr. Wedderburn, arguendo in Harker v. Birkbeck, 3 Burr. 1561, that "both actions may lie where there is both an immediate and also a consequential injury done, and the plaintiff therein being entitled to both actions, must have his election to proceed in either." But where the remedy is sought in case, the party must shew a consequential damage on the face of the count, to maintain his action in that form. It will not do to state a bare trespass and join it with case, on the score that there are circumstances not stated which would enable him to maintain case. Suppose the count had stated merely that the defendant broke and entered into the house of the plaintiff and seized and sold his goods, it may be that an action would be maintainable in case, *419] because the selling or appraisement was irregular, or the amount taken *excessive; but the possibility of a state of things not averred cannot be a sufficient reason for holding that case is maintainable: if a count in trover and a count in trespass were joined, the joinder might be defended on the same ground. But it may be said this is not a count in trespass, but a bad count in case. The test, however, is to consider whether the cause of action stated is a matter for which trespass or case lies. It is not the commencement of the declaration but the statement of the cause of action that determines what the action is. Suppose a count begins in debt, and states a mere trespass, could it be joined with detinue? Here the cause of action stated in the count is the second seizure of the goods, which was without any right, and therefore was a mere trespass. The cases of Winterbourne v. Morgan, 11 East, 395, Etherton v. Popplewell, 1 East, 139, and Wallis e. Saville, 2 Lutw. 1532, are in point to shew that trespass was the proper form of action.

DENMAN, C. J. The authorities cited shew that trespass may, not that it must, be brought in such a case as this. In Branscomb v. Bridges, (1 B. & C. 145,) it was contended that the taking of the plaintiff's goods under a distress, after the rent due had been tendered, being without any colour of right, was the subject of an action of trespass only; but the Court held that, though trespass might lie for that act, the plaintiff was at liberty to waive the trespass, and bring an action on the case; and it was there observed by the Court that trover would lie after a wrongful taking, and that that was a stronger case. I think,

[*420

therefore, that, though the taking of the plaintiff's goods a second time was a trespass, he was at liberty to waive it, and bring case for the consequential injury arising to him from the unlawful detention of his goods; and that the seventh count may be considered a count in case.

LITTLEDALE, J. I also think that the seventh count may be considered a count in case, because it alleges that the defendants vexatiously(a) made the second distress. An action on the case will lie against a man for maliciously splitting his cause of action.

PARKE, J. I have entertained some doubt upon this case in the course of the argument: but, on the whole, I think the declaration may be supported. I agree that trespass might be maintained in respect of the act there alleged, viz. the second seizure by the landlord. So it might in all cases of a wrongful taking of goods, and yet in many such cases trover, which is a special action on the case, is maintainable; and it seems to me that the seventh count is an informal count in trover, setting forth specially circumstances which it was unnecessary to state, but which are the subject of such an action. That count alleges, in substance, that goods of the plaintiff came to the possession of the defendants, and that they refused to deliver them to the plaintiff, and converted them te their own use. It may then be *considered an informal count in trover, and after verdict is sufficient.

[*421 PATTESON, J. The true ground upon which this declaration is to be supported, appears to me to be that stated by my brother Parke, viz., that the seventh count is an informal count in trover. Rule discharged.

KIRK v. STRICKWOOD. Jan. 15.

A defendant, prosecuted by parish officers for disobeying an order of maintenance, was convicted, and sentence deferred by the court, with a view to an arrangement in the meantime he was committed to prison, and the officers demanded of him a sum considerably exceeding the amount of maintenance due, but part of which was to cover costs. A. paid part, and gave a note for the remainder; he was then brought before the court, fined 18. and discharged. It did not appear whether or not the particulars of the arrangement were communicated to the court, but A. made no complaint when brought up. In an action afterwards brought upon the note:

Held, that no irregularity appeared in the compromise, and that the note was legal.

ASSUMPSIT on a promissory note for 197. 18s. 6d., dated 28th of October, 1830, payable to the plaintiff, described in the note as overseer of the poor of the parish of St. Mary, Whitechapel; and on counts for meat and other necessaries furnished to Sarah Maria Strickwood at the defendant's request. Plea, non-assumpsit. At the trial before Denman, C. J., at the sittings in London after last Michaelmas term, the facts appeared to be as follows:-On the 30th of August, 1830, at the instance of the parish officers of St. Mary, Whitechapel, an order was made by two justices in petty sessions, adjudging that the said Sarah Maria Strickwood, therein stated to be the defendant's daughter, was unable to maintain herself, and was chargeable to the said parish, and that the defendant was able to maintain her, and requiring him forthwith to pay the parish officers 157. 8s. for her maintenance down to the time of making the order, and 11s. 6d. weekly, so long as she should be chargeable, or [*422 till he should be legally directed to the contrary. Not complying with the order, he was indicted for the disobedience at the Middlesex sessions in October

(a) In Comyn's Digest, Action upon the Case for a Deceipt, (A. 4,) it is said, that case lies if a man procure a vexatious suit; as, if a man sue a capias upon a forged statute, and Fitzherbert, N. B. 96, B. is cited. So if a man procure another to commence an action in any court against A. to vex him. F. N. B. 98, N. So if a man sue vexatiously, as if he sue in an inferior court, and has judgment and execution, when the defendant knew nothing of the suit. Lut. 67.

following, and convicted; but the Court deferred passing sentence, with a view to an arrangement, and in the mean time he was committed to prison. It was there communicated to him on behalf of the overseers, that 407. would be required to settle the matter : his wife raised 207., which was paid, and, while still in prison, he gave the note in question for the rest of the demand. Part of the payment, but it did not clearly appear what, was intended to cover costs. The defendant was afterwards brought before the Court, fined a shilling, and discharged, it being understood that an arrangement had taken place. On the defendant's part it was insisted that a note given under these circumstances was void. A verdict having been found for the plaintiff,

Kelly, by leave reserved, now moved for a rule to show cause why a nonsuit should not be entered. The question will be, whether the present case is or is not distinguishable from Beeley v. Wingfield, 11 East, 46, where a compromise of this kind was allowed after conviction; but Lord Ellenborough said there, "If we had seen any ground for suspecting that the authority of the Court had been used as an instrument of oppression or extortion, we should have watched the case very jealously." The difference between that case and this is, that the

terms there were dictated by the Court. No other party *is competent *423] to prescribe them,(a) for the Court only knows what the punishment

would be. If the sum taken from the defendant here had been merely that charged in the order of justices, or if the precise grounds of the agreement had been laid before the sessions, there might have been more reason for contending that Beeley v. Wingfield, 11 East, 46, applied: but under the circumstances proved, the proceeding was irregular, and is not sanctioned by that case.

DENMAN, C. J. I think the distinction relied upon does not take this case out of the authority of Beeley v. Wingfield, 11 East, 46. The defendant, when he was brought up for sentence, had an opportunity of applying to the Court if he thought the sum proposed to be taken from him was too large. There will be no rule.

LITTLEDALE, J. The note is prima facie good. It has not been shewn that the sum taken was excessive: and the defendants might have urged his objections, if he had any, when he was brought up for judgment at the sessions. TAUNTON, J. The case is within the principle of Beeley v. Wingfield, 11 East, 46. When the defendant was brought up for sentence, I should apprehend that the terms of the *arrangement must have been communicated to the Court and received their sanction.

*424]

PATTESON, J. The defendant seeks, at a great distance of time, to set aside an agreement which he had an opportunity of objecting to when it was first made. We must presume, now, that it was a fair and satisfactory agreement, or else the defendant would have applied to the Court at the time. Rule refused.

KEMP v. THOMAS BURT, Gentleman, and WILLIAM CURTIS BURT, Gentleman. Jan. 16..

In an action against attorneys for negligence, it appeared that the plaintiff employed the defendants to conduct an action for him against a surveyor of turnpike roads, for alleged trespasses. The surveyor had seized and impounded plaintiff's sheep, as having been found straying on the road: the plaintiff regained possession of them, by promising the pound keeper to pay the proper charges, and drove them home; on the same day the surveyor retook the sheep in the plaintiff's field, and again impounded them. The first and second taking were in Surrey, but on an intermediate day the sheep had

(a) See Baker v. Townshend, 1 B. Moore, 120, where an assault, with various other matters in dispute, and costs, were referred to arbitration by the sessions, after conviction; and the Court of Common Pleas held it right. Secus, where a misdemeanor wholly of a public nature was compromised by consent of the committing magistrates, without trial. Edgcombe v. Rodd, 5 East, 294. See 4 Bl. Comm. 363, 364.

escaped and been impounded in Sussex. The turnpike act, 4 G. 4, c. 95, s. 75, only authorizes surveyors to impound sheep found on a turnpike road. The general turnpike act, 3 G. 4, c. 126, s. 147, (incorporated in the above statute by reference) requires that actions against any person for any thing done in pursuance of the act, shall be commenced within three months, and the venue laid in the county where the cause of action

arose.

The attorneys commenced the action within three months, and had a declaration drawn by counsel, who returned it with an observation indorsed, that it would have been prudent to join two other parties. The attorneys thereupon (with the plaintiff's assent) discontinued the action, and brought another after the expiration of the three months, laying the venue in Sussex. The declaration was settled by counsel, and the case afterwards submitted to a special pleader, who gave as his opinion, that the protecting clause of 3 G. 4, c. 126, did not apply to the trespass in seizing the sheep in the plaintiff's field. The plaintiff went to trial, and was nonsuited on account of the action being out of time and the venue improper, with leave to move, which was done without

success:

Held, that this was not a case of actionable negligence in the attorneys.

Quare, Whether the surveyor, in making the second seizure, was within the protection of 3 G. 4, c. 126, as acting in pursuance of that statute, or 4 G. 4, c. 95: Held, that at all events there was so much doubt on this point, that the attorneys, if mistaken upon it, were not therefore culpably negligent.

[*425

CASE against attorneys for negligence. The declaration stated that the plaintiff retained the defendants to commence and prosecute an action for him *against one Silvester, for having seized certain sheep and cattle of the plaintiff on a turnpike road in Surrey, and impounded the same, Silvester being at the time surveyor of the said road, and acting as such surveyor, and the sheep, &c., being alleged to have been found straying on such road; that it was the duty of the defendants to bring the action within three months of the seizure and impounding, and lay the venue in Surrey; but that they, having commenced an action, improperly discontinued the same without the plaintiff's leave, and brought another action not within three months, and laid the venue in Sussex, by reason whereof the plaintiff was nonsuited, and had 1087. levied upon him for costs, &c. Plea, the general issue. At the trial before Tindal, C. J., at the Spring assizes for Surrey, 1832, the facts appeared to be as follows::

The sheep and cattle were taken, as above stated, by Silvester, who was surveyor of the Horley and Cuckfield turnpike roads, on the 26th of April 1828, in Surrey (near the borders of Sussex), and impounded at Horley in the former county. They afterwards escaped; the cows returned home, and the sheep, being retaken, were again impounded at Worth in Sussex. The poundkeeper there, on the 29th of April, allowed the plaintiff to take them away, on his promise to pay what was claimed for them, and the plaintiff drove them back into Surrey, where, on the same day, Silvester retook them in a field belonging to the plaintiff, and again put them in the pound. Two persons, named Town and Mercer, assisted him in both seizures. The plaintiff afterwards employed Messrs. Burt, the present defendants, to bring an action for the alleged trespasses, and they sued out a writ, against Silvester only, on the 2d of May 1828. *Instructions for a declaration were laid before counsel, indorsed with the words Sussex latitat, and the names of the parties; there was also a [*426 reference to the statutes 3 G. 4, c. 126, s. 123; 4 G. 4, c. 95, s. 75,(a) written

(a) By 4 G. 4, c. 95, s. 75, it is enacted, that "If any horse, ass, sheep, swine, or other beast or cattle of any kind, shall at any time be found tethered, or wandering, straying, or lying about any turnpike road, or on any part thereof, (except on such parts of any road as lead or pass through or over any common or waste or uninclosed ground,) it shall and may be lawful for any surveyor of the road where the same shall be found, or any other person or persons whomsoever, to seize and impound every such horse, ass, sheep, swine, or other beast or cattle, in the common pound (if any) of the parish, township, tithing, or place where the same shall be found, or in such other place as the trustees or commissioners of the road where the same shall be found shall have provided, or shall provide for that purpose; and the said horse, ass, sheep, &c., there to detain until the

upon the instructions by one of the Messrs. Burt. The learned counsel drew the declaration, containing two counts, one for the original taking in the road, the other for the retaking on the plaintiff's premises; and he returned the declaration (in November 1828) with the following observations indorsed:“ I have confined the declaration to the two occasions on which the cattle were taken away. It would have been prudent to have issued the writ against Silvester's two associates, and joined them in the action, as they were clearly co-trespassers with him, and their evidence therefore must be anticipated in his favour, and will be likely to be extremely prejudicial to the plaintiff." Messrs. Burt then wrote to the plaintiff, stating that counsel recommended the two accomplices to be joined, and asking what he, the plaintiff, said to it: and it was determined, with the assent of the plaintiff, that the action should be discontinued, and *427] *another commenced against all the parties. A writ was accordingly sued out, in November 1828, against Silvester, Town, and Mercer, and the declaration was amended by counsel, the names of the two latter parties being introduced. When the cause was at issue, the trustees of the turnpike roads made an offer of compromise, which the defendants advised the plaintiff to accept, being then doubtful as to the result of a trial; but the plaintiff refused, not being satisfied with the terms. A case was afterwards laid before a special pleader, with a copy of the declaration; the question proposed being, whether or not the defendants could avail themselves of the protection of the general turnpike act.(a) The gentleman consulted gave as his opinion that, in respect of the latter seizure, the defendants could not avail themselves of that protection either as to the venue or the limitation of the action. On the trial at Lewes, at the Summer assizes 1829, it was objected that the action was commenced too late, and the venue improper, and the learned Judge who tried the cause directed a nonsuit on both points, giving leave to move that the nonsuit should be set aside; which motion was made in the following term without success, and the defendants had execution for their costs.

*428] Upon these facts, Tindal, C. J. was of opinion that the case was one in which Messrs. Burt, the defendants, might reasonably doubt whether that which had been done by the surveyor, was done in pursuance of the statute,() and he directed a nonsuit, with liberty to move to enter a verdict for 1087., the amount of costs levied. A rule having been obtained for this purpose,

Platt and Channell now shewed cause. The nonsuit was right, there being no evidence to go to the jury of that crassa negligentia without which an attorney cannot be subjected to an action of this nature. If he has shewn care, skill, and integrity, it is not every inadvertence or error of judgment that will render him liable to an action. In the present case instructions were in the first instance laid before counsel, with an indorsement calling his attention to the statutes; and he returned the declaration with a suggestion that the other trespassers should have been joined, but not warning the parties that a new

owner thereof shall for every and each horse, ass, sheep, &c., so impounded, pay the sum of 28., together with reasonable charges and expenses, &c., to the surveyor," 3 G. 4, c. 126, s. 123, is not material to this case.

(a) 3 G. 4, c. 126, s. 147, which enacts, "That if any action shall be commenced against any person, for any thing done in pursuance of this act, then and in every such case such action or suit shall be commenced or prosecuted within three months after the fact committed, and not afterwards; and the same and every such action or suit shall be brought in the county or place where the cause of action shall have arisen, and not elsewhere:" and if the action be otherwise brought, the jury shall find for the defendant; and if the plaintiff shall become nonsuit or have a verdict against him, the defendant shall have These provisions are kept in force as if re-enacted, by 4 G. 4, c. 95, s. 88. (6) During the trial it was urged on behalf of the defendants, that the second taking was not an act so done, and therefore that the limitations as to time and venue did not apply; but the Lord Chief Justice held that he could not nonsuit, because he could not say that the former nonsuit was wrong on the very ground on which it proceeded.

treble costs.