Illegal distresses. On stat. Marl. 51 Hen. 111. s. 4. for distraining beasts of the plough, and sheep, there being other goods sufficient to distrain.(n) * 287 ly seised, took, and distrained in and upon the said tenements, [Commencement as ante, 238.] For that whereas the said CD, on, &c. at, &c. took and distrained the beasts of the plough, and sheep of the said A B, to wit, &c. then being in and upon certain land and premises, with the appurtenances of the said A B, situate, &c. and whereby and wherewith he the said AB then tilled his said land, not for damage-feasant, but for certain rent, to wit, the sum of . then supposed to be due and owing from the said A B to the said CD for and in respect of the said land and premises, with the appurtenances, although there were then and there other goods and chattels of the said AB in and upon the said land and premises, with the appurtenances, not being beasts of the plough or sheep, sufficient for a reasonable distress for the rent aforesaid, and the said CD afterwards, to wit, on, &c. at, &c. aforesaid, sold the said beasts of the plough, and the said sheep, and converted and disposed of the money arising from the sale thereof, to the use of him the said CD contrary to the form of the statute in such case made and provided. [Add a count in trover and conclude as ante, 238.] (n) See the precedents, 8 Wentw. 430.443, 444. The first was in trespass, and both the precedents conalude against the peace. As to the law, see Com. Dig. tit. Trespass, c. 4. 4 T. R. 565. 1 Bott. 244. Gilb. Dist. by Hunt, 36. Co. Lit. 47. a. n. 117. The declaration need not shew that there was a sufficient distress o other goods. Dyer, 312. Sid. 348. tresses. rent than was [Commencement as ante, 238.] For that whereas the said A Illegal disB before and at the time of the committing of the grievance For distrainhereinafter next mentioned held and occupied certain premi- ing for more ses, with the appurtenances, situate and being in, &c. as tenant due.() thereof to the said CD at and under a certain rent therefore payable by the said A B to the said C D, to wit, at, &c. aforesaid. Yet the said CD contriving and maliciously intending wrongfully and unjustly to injure the said A B in this behalf, heretofore, to wit, on, &c. at, &c. aforesaid, falsely and maliciously pretending that a certain large sum of money, to wit, the sum of. of lawful money, &c. was then due and in arrear from the said A B to the said C D for rent of the said premises, with the appurtenances, wrongfully and unjustly seized and took certain cattle, to wit, &c. of the said A B then found and being in and upon the said laid last-mentioned premises, of great value, to wit, of the value of -. of lawful money of Great Britain, as a distress for the said sum of mo ney so pretended to be due and in arrear as aforesaid, and under that pretence kept and detained the said cattle of the said A B from him the said A B for a long space of time, to wit, for the space of days then next following, and until he the said A B in order to regain the possession of his said cattle, was forced and obliged to pay, and did pay to the said C D the said pretended arrears of rent, and a large sum of money, to wit, the sum of 7. for the costs and charges of the said distress and expenses incidental thereto. Whereas in truth and in fact, at the time of the making of the said distress as aforesaid, and during all the time aforesaid, a small part only, to wit, the sum of . of the said sum of money so pretended to be due and in arrear as aforesaid, was due and in arrear from the said A B to the said CD for the rent of the said tenements, with the appurtenances, to wit, at, &c. aforesaid. [Add a count for an excessive distress for the rent really due, as in the next precedent, and a count in trover, and conclude as ante, 238.] * 288 (0) This action is at common law, and is not founded upon the statute 52 Hen. III. c. 4. for an excessive distress, as in the next precedent, nor VOL. II. on the statute 2 W. & M. c. 5. s. 5. [ 33 ] Megal dis tresses. on stat. Marl. 52 Hen. III. c. 4.(p) [Commencement as ante, 238.] For that whereas the said A B before and at the time of the committing of the grie For taking an excessive dis- vance hereinafter next mentioned, held and enjoyed certain tress for rent, land and premises, with the appurtenances, situate, &c. as tenant thereof to the said CD at and under a certain rent therefore payable by the said A B to the said C D for the same, of which said rent, at the time of the committing of the grievance hereinafter next mentioned, a certain small sum of money, to wit, the sum of 7. and no more, was due and in arrear from the said AB to the said C D. Yet the said C D not regarding the statute in such case made and provided, but wrongfully and maliciously contriving and intending to injure and oppress the said AB in this behalf, heretofore, to wit, on, &c. at, &c. aforesaid, wrongfully and maliciously took and *distrained for the said arrears of rent certain goods and chattels, to wit, &c. of the said A B, of much greater value than 287, 288. have the amount of the said arrears of rent, to wit, of the value of been duplica *287 In the English edition, pages ted, and pages. and thereby took a great and unreasonable distress for the 318, 319. 0 mitted. It has said arrears of rent, when at the time of the taking of the said been thought distress as aforesaid, a certain part of the said goods and chat proper to fol low the En- tels so distrained as aforesaid, to wit, one half thereof then was glish paging. of sufficient value to have satisfied the said arrears of rent and the charges of the said distress and of the appraisement and sale thereof, to wit, at, &c. aforesaid, contrary to the form of the statute in such case made and provided. [Add a count in trover, and conclude as ante, 238.] For driving a For that whereas the said C D, heretofore, to wit, on, &c. distress above three miles in the hundred of in the county of to wit, at, &c. took and distrained divers cattle, to wit, of him, the said out of a hun dred, 1 & 2 P. & M. e. 12. (7) AB of great value, to wit, of the value of -. as and for, and in the name of a distress for certain rent, and the said CD, (p) See also 51 Hen. III. c. 4. Gilb. Dist. by Hunt, 63 to 68. The reme dy must be on the above stat. 2 Stra. 851. S Lev. 48. and not by trespass or trover. id. ibid. See the precedent, 8 Wentw. 439. 444 (9) See the precedent, Co. Ent. 43. b. Rast. 164. the party might also proceed on 52 Hen. III. c. 4. The statute entitles the party aggrieved te5%. and treble damages. tresses. not regarding the statute in such case made and provided and Illegal die, contriving to injure and aggrieve the said CD, afterwards, to wit, on the same day and year last aforesaid, drove the said last-mentioned distress out of the said hundred, in which the said distress was so taken as aforesaid, into a certain other hundred, to wit, the hundred of, in the county aforesaid, and to a place above three miles, to wit, twelve miles distant from the place where the same was so taken as aforesaid, that is to say, to in contempt of our said lord the king and his laws, and against the form of the statute in such case made and provided. * 288 trained off the ing goods dispremises, and not giving the tenant notice. (r) [Commencement as ante, 238.]-For that whereas the *said For impoundCD, heretofore, to wit, on, &c. at, &c. seized and took divers goods and chattels, to wit, &c. of the said A B, of great value, to wit, of the value of -. then found and being in a certain messuage or tenement, with the appurtenances, situate, &c. as and for, and in the name of a distress for certain supposed arrears of rent, to wit, for the sum of . pretended to be due and in arrear from the said A B to the said C D, for and in respect of the said messuage or tenement, with the appurtenances, and then and there carried away and removed the said goods and chattels, and impounded the same off the said messuage or tenement, with the appurtenances. Nevertheless the said CD contriving, and wrongfully and unjustly intending to injure the said A B, and not regarding the statute in such case made and provided, did not, nor would, give due and proper notice of the said distress, and of the cause of taking the same, or of the place to which the said goods and chattels were removed, to the said A B, or leave the same at the said messuage or tenement, with the appurtenances, but wholly neglected so to do, and therein failed and made default, contrary to the form of the statute in such case made and provided, and to the damage, &c. (r) 2 W. & M. c. 5. s. 2. 11 Geo. II. c. 19. s. 10. As to what notice is necessary, and how to be given, see Moss v. Gallimore. Dougl. 279. Ld. Illegal dis tresses. For refusing to restore goods distrai ned for rent, on tender of the rent and [Commencement as ante, 238-For that whereas the said CD, heretofore, to wit, on, &c. at, &c. had taken and distrained divers goods and chattels of the said A B, of great value, to wit, of the value of 7. there then found *and being, as and for and in the name of a distress for certain rent, to wit, the sum of . then duc and in arrear from the said A B to the said CD, for and in respect of a certain messuage, with the appurtenances, before then held and occupied by the said A B, as tenant thereof to the said C D, and thereupon afterwards, and whilst the said CD was in possession of the said last-mentioned goods and chattels, under such distress as aforesaid, to wit, on, &c. aforesaid, at, &c. aforesaid, tendered and offered to the said CD, in satisfaction and discharge of the said arrears of rent and the costs and charges of the said distress, a certain large sum of money, to wit, the sum of ―. the same being then and there a sufficient sum to satisfy and discharge the said arrears of rent, together with all the costs and charges of the said distress, and then and there requested the said C D to redeliver and restore the said goods and chattels to him, the said A B, and although the said CD, then and there ought to have accepted and received the said sum of money from the said A B, in discharge of such arrears of rent and the costs and charges of the said distress, and to have redelivered and restored the said goods and chattels to him the said AB; yet the said C D contriving, and wrongfully and unjustly intending to harass, oppress and aggrieve the said A B in this behalf, did not, nor would, when he was so requested as aforesaid, or at any other time, accept or receive the said sum of money from the said A B, in satisfaction and discharge of the said arrears of rent and the cost and charges of the said last-mentioned distress, or redeliver or restore the said goods and chattels, or any part thereof, to the said A B; but then (3) See the precedent, 8 Wentw. 440. and the like in the case of a distress damage-feasant, id. 392. According to & Co. 147. a. Gilbert's Dist. by Hunt, 57. 88. tender upon the land before the distress makes the distress tortious; tender after the distress, and before the impounding, makes the detainer and not the taking wrongful; tender after the impounding makes neither the one nor the other wrongful; but in the case of a distress for rent, upon the equity of the statute 2 W. & M. c. 5. a sale of the distress, after tender of the rent and costs would be illegal. |