tresses. and there wholly neglected and refused so to do, and hath legal dishitherto wrongfully and injuriously kept and withheld the said last-mentioned goods and chattels from the said A B, and hath converted and disposed thereof to his own use to wit, at, &c. aforesaid. [Add count in trover.] For that whereas the said CD 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 and upon a certain farm, lands and premises, situate, &c. in the name of a distress for certain arrears of rent, pretended to be due and payable for the same to him the said CD, and then and there gave notice thereof to the said AB;(t) yet the said CD not regarding the statute in such case made and provided, and contriving and wrongfully and unjustly intending to injure the said A B in this behalf, and to deprive him of his said goods and chattels, and of the use, benefit and advantage thereof, and to prevent him from replevying the same, afterwards, and before the expiration of five days. next after such distress so taken and made, and such notice thereof so given as aforesaid, to wit, within the space of five days thence next following, to wit, on, &c. aforesaid, at, &c. aforesaid, wrongfully, unlawfully and unjustly did sell and dispose of the said goods and chattels, without the leave or license, and against the will of the said A B, whereby he the said A B was not only hindered and prevented from replevying the said goods and chattels so distrained as aforesaid, but was also deprived of such reasonable and sufficient time as in that respect is allowed by law, for the raising, obtaining and procuring money to pay and discharge the rent so pretended to be due and in arrear as aforesaid, and the costs of the said distress; and the said A B hath also thereby wholly lost and been deprived of the said goods and chattels, and of the use, benefit and advantage thereof, to wit, at, &c. aforesaid. * 290 For selling a distress with in five days, on the equity of 2 W. & M. c. 5. (t) This is not necessary, Lutw. 214. Illegal distresses. For not * 291 re [Commencement as ante, 238.] For that whereas the said. CD heretofore, to wit, on, &c. at, &c. seized and took &c. of the said moving goods divers cattle, goods and chattels, *to wit, distrained within a reaA B, of great value, to wit, of the value of . then found and sonable time being in and upon a certain farm, lands and premises of the after the elapse of the Said A B, situate, &c. in the name of a distress for certain arfive days.(u) rears of rent pretended to be due and payable for the same to him, the said C D, and then and there gave notice thereof to the said A B; yet the said C D not regarding the statute in such case made and provided, but contriving, and wrongfully and unjustly intending to injure the said A, B in this behalf, did not, nor would, remove the said last-mentioned cattle, goods, and chattels from the said last-mentioned farm, lands and premises, within a reasonable time after the expiration of five days next, after the making of the said last-mentioned distress, and giving the said notice thereof as aforesaid, but wholly neglected and refused so to do, and wrongfully and unjustly, without the license or consent, and against the will of the said A B kept and detained the said last-mentioned cattle, goods, and chattels in and upon the said farm, lands and premises, for a great and unreasonable space of time after the expiration of the said five days as aforesaid, to wit, for the space of then next following, contrary to the form of the statute in such case made and provided, to wit, at, &c. aforesaid. Por not selling for the best price on the equity of stat. 2 W. & 1. c. 5. s. 2. (x) [Commencement as ante, 238.]-For that whereas heretofore, to wit, on, &c, at, &c. the said C D seized and distrained divers goods and chattels, to wit, &c. of him the said A B of great value, to wit of the value of -. of lawful, &c. then found and being in and upon a certain messuage or dwellinghouse, with the appurtenances, situate at, &c. as for and in the name of a distress for certain arrears of rent alleged to be due to the said CD for the use and occupation of the said last (u) This count founded on the equity of the 2d W. & M. c. 5. s. 2. and 11 Geo. II. c. 19. s. 10. has fre-quently been adopted, but quære if trespass is not the proper form of action, where the party distraining con. tinues too long in possession. Strą. 717. 1 Hen. Bl. 15. Gilb. 77. (x) The price at which the goods were distrained will be presumed to be the best that could be obtained til the contrary be proved. 4 Mod. 390. Com. Dig. Distress, D. 8. tresses. mentioned messuage, *or dwelling-house, in which, &c. And Illegal diswhereas also the said C D afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, sold a part of the said goods and chattels for payment and satisfaction of the said supposed arrears of rent, and of the charges of the said distress. Yet the said C D not regarding his duty in making and selling the said distress, nor the statute in such case made and provided, but contriving and fraudulently intending craftily and subtly, to injure the said A B in that behalf, did not, nor would sell the said goods and chattels under the said distress for the best price that could be gotten for the same, but on the contrary thereof, the said CD then and there, to wit, on, &c. aforesaid, wrongfully and injuriously sold the said goods and chattels for much less than the best price, that is to say, for. less than the best price which might have been gotten and received for the same, had the same been sold in a due and proper manner by the said C D, to wit, at, &c. aforesaid. [Add a count in trover, and conclude as ante, 238.] On equity of stat. 2 W. & M. c. 5. s. 2. from the sale of a distress with the she riff, &e. [Commencement as ante, 238.] For that whereas heretofore, to wit, on, &c. at, &c. the said CD seized and distrained divers goods and chattels, to wit, &c. of him the said AB, of for not leav ing the over great value, to wit, of the value of . of lawful, &c. there plus arising then found and being in and upon a certain messuage, or dwell ing-house, with the appurtenances, situate, &c. as and for, and in the name of a distress for certain arrears of rent alleged to be due to the said C D for and in respect of the said messuage or dwelling-house. And whereas also the said CD having caused the said goods and chattels to be appraised afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, sold a part of the said goods and chattels so by him seized and distrained as aforesaid, for payment and satisfaction of the said supposed arrears of rent, and of the charges of the said distress, appraisement, and sale for divers sums of money, amounting in the whole to a certain sum of money, *to wit, the sum of -1. of lawful money of Great Britain, being a much larger sum of money than was sufficient to satisfy and discharge all the rent then due for the said messuage or dwelling-house, with the appurtenances, and all the charges of the said distress, appraisement and sale. And the said A B further saith, that alfhough the said C D, afterwards, to wit, on, &c. last aforesaid, * 293 Illegal dis tresses. * 294 For rescue of distress for at, &c. out of, and with a part of the produce of the said goods, [Commencement as ante, 238.] For that whereas the said CD for a long space of time, to wit, for the space *of rent, on a common apnext before, and ending on, &c. and from thence until, and at purtenant, (y) under statutes the time of committing the several grievances hereinafter mentioned, held and enjoyed a certain farm and lands with the appurtenances, situate, &c. that is to say, as tenant thereof to the 2 W. & M. c. 5. s. 4. 11 Geo. II. c. 19, s. 10. (y) See the precedents, & Wentw. Index, 24. 3 Ld. Raym. 177. 1 Ld. Raym. 170. Lutw. 213. The stat. 2 W. & M. sess. 1. c. 5. s. 4. enacts, "that upon any pound breach or rescue of goods or chattels distrained for rent, the person thereby aggrieved shall in a special action on the case, for the wrong thereby sustained, recover treble damages and costs (which also are treble, Carth. 321. 1 Salk. 205.) against the wrong-doer or the owner of the goods distrained, in case the same be afterwards found to have come to his use or possession." The 11th Geo. II. c. 19. enlarges the powers of distress, and extends the above provision, see sect. 10. Tres pass may be supported at common law. Com. Dig. tit. Rescous, D. 1. * 295 said A B under and by virtue of a certain demise thereof, there- Rescue and tofore made to him the said CD at and under a certain yearly pound breach. rent, to wit, the yearly rent of . therefore payable by the said CD to the said A B, on, &c. and on, &c. by even and equal portions(z) of which said rent a certain sum of money, to wit, the sum of -. of lawful, &c. on the said, &c. aforesaid, became due and payable, and from thence until, and at the time of committing the several grievances hereafter mentioned was in arrear and unpaid from the said C D to the said A B, to wit, at, &c., aforesaid. And whereas the said A B heretofore, to wit, on, &c. by one E F his bailiff in that behalf had, according to the form of the statute(a) in such case made and provided, seized and taken divers, to wit, two cows then feeding and depasturing in *and upon a certain common field, or piece or parcel of land, situate, lying and being in, &c. aforesaid, the same being then and there common appurtenant to, and belonging to the said demised premises, as for and in the name of a distress for the said sum of . of the rent aforesaid so in arrear and unpaid as aforesaid. And the said A B and his said bailiff were then and there driving the said cows to a certain common pound, situate and being at, &c. and within three miles from the place where the same were so taken as aforesaid, and would there have impounded the same, with intent to appraise and sell and dispose of the said cows, according to the form of the statute in such case made and provided, whereupon he the said CD, on, &c. last aforesaid,at, &c. aforesaid, with force and arms,(b) &c. rescued, seized, took and drove away the said cows, contrary to the form of the statute in such case made and provided, whereby he the said A B hath been and is greatly delayed in the recovery of the said rent so in arrear as afore ought to be alleged. Kitt. 227. a. (a) By the 11th Geo. II. c. 19. s. 8, (z) As the statute 2 W. & M. c. 5. gives the action only to the party grieved; it seems necessary in a declaration for treble damages on this statute, to state the right to distrain, though in an action for a pound breach of a distress taken damage-feasant, the title needs not be stated, 1 Ld. Raym. 104. 1 Salk. 247. The precedents in Lutw. 213. 3 Ld. Raym. 177. Mod. Ent. 210. state the demise fully, and it is said that the days of payment of the rent 177. VOL. II. [ 34 ] (b) Though the action given by the statute is case, yet the injury is stated vi et armis, Lutw. 213. Ld. Raym |