Exch. of Pleas, [Parke, B.-At common law, undoubtedly, a tender made 1841. ELLIS ข. TAYLOR. after impounding is too late; but the question is, whether, upon the equity of the statute 2 W. & M. stat. 1, c. 5, s. 2, an action is not maintainable for selling goods seized under a distress, where a tender of the rent and expenses is made before the sale, although after the impounding. It is laid down in Mr. Chitty's Precedents in Pleading, vol. ii. p. 723 (5th edit.) that in a distress for rent, upon the equity of this statute, a sale of the distress after tender of the rent and costs would be illegal, and that in such case trespass is the proper remedy: and certainly the precedents are constantly in this form. The object of the distress is only to realize the rent.]—A rule having been granted, Murphy now shewed cause.-The doctrine that a tender of the rent and costs, after impounding, is too late, rests upon dicta, which, (with the exception of that of Lord Coke, in the Six Carpenters' Case,) apply only to the case of a distress for trespass damage feasant. Those dicta applied to the then existing state of the law, when the distress was taken off the premises to the public pound; and rest upon the principle, that, inasmuch as the goods were then in the custody of the law, that custody could not be changed by the interference of the party, but only by the intervention of some legal remedy. But when, by the stat. 2 W. & M. st. 1, c. 5, s. 2, the goods were allowed to be impounded on the premises of the tenant, the same reason no longer applied. In that case the landlord suffers no inconvenience, but has the means of obtaining the rent, which is the sole object of the distress, and of reimbursing himself his costs: and it appears monstrous to say that the landlord should be allowed to sell the goods, after the full benefit which he can receive by a sale has been tendered to him, and that the tenant should necessarily be put to the circuitous remedy of a replevin. The forms of 1841. ELLIS V. TAYLOR. precedents, and the statement of the law by Mr. Chitty, Exch. of Pleas, favour this view of the case. The case is analogous to that of an imprisonment of the person, in which case payment or tender of the debt and costs, although after the defendant is in custody on a ca. sa., is held a sufficient ground to entitle him to his discharge: Crozier v. Pilling (a). So also, where the tenant has neglected to replevy within the five days, and there has been an appraisement, he may yet replevy before sale of the goods: Jacob v. King (b). The dictum in Firth v. Purvis (c), that a tender is too late after impounding, is extra-judicial. The cases of Thomas v. Harries and Ladd v. Thomas (d) are undoubtedly authorities against the plaintiff; but in the former case Maule, J., dissented from the opinion of the other Judges; and all the cases cited in Ladd v. Thomas were cases of distress damage feasant. The question is, whether the Court will not review the dicta upon which all the later authorities appear to rest, and which, in the present state of the law, are no longer applicable (e). Cresswell (Baines and Martin with him) contrà.-There is nothing in the stat. 2 W. & M. st. 1, c. 5, or in any subsequent statute, to alter the rule of the common law as to the effect of the impounding of a distress. The law is thus laid down by Lord Coke, in the Six Carpenters' Case (ƒ). "Note, reader, this difference, that 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, for then it comes too late, because then the cause is put to the trial of the law to be there determined." That statement of the law, and the reason given for it, equally apply (a) 4 B. & Cr. 26; 6 D. & R. 129. (d) 4 P. & D. 9. (e) Sec per Best, C. J., in Browne v. Powell, 4 Bing. 230. (f) 8 Rep. 146. Exch. of Pleas, to distresses of all kinds, whether for rent or for damage 1841. feasant. Now it is conceded that the law still remains the same as to goods distrained damage feasant. [He was here stopped by the Court.] ELLIS v. TAYLOR. Lord ABINGER, C. B.-It appears that there are two modern decisions on the point in favour of the defendant, and it cannot be expected that we shall overrule them. If the case were prosecuted in such a form as to bring them under the consideration of a superior court, there might be some reason for entertaining the question; but until those cases are rescinded, we must be bound by their authority. There certainly appears to be considerable weight in the argument as to the hardship on the tenant by the present state of the law; but the same argument has been submitted to and weighed by former judges. If, indeed, the case stated that the goods had been maliciously sold by the landlord after a tender, I should have hesitated whether to consider the cases which have been referred to as binding authorities upon us. [Murphy suggested that, after verdict, the words "wrongfully and injuriously" would have the same meaning as "maliciously;" and that in Smith v. Goodwin (a), that meaning appeared to have been assigned to the word "vexatiously."]-No; the words "wrongfully and injuriously" mean no more than contrary to law, whereby there is a wrong and an injury: the word vexatiously" implies actual malice. I do not mean to say that a landlord may not be liable if he maliciously persevere in a sale, notwithstanding a tender of the rent and expenses, though made after impounding; but that must be upon an allegation and proof of malice. Upon that point, however, I give no positive opinion. At present the rule must be absolute to enter a nonsuit. GURNEY, B., and ROLFE, B., concurred. Rule absolute. (a) 4 B. & Adol. 413. Exch. of Pleas, ABBEY V. PETCH. 1841. May 28. tenant is under covenant not to carry off the premises the hay and straw made on the farm, the landseized the hay lord, who has CASE for an excessive distress. The third count of the Where a farm declaration stated, that the plaintiff was tenant to the defendant of a farm at a certain rent, of which a certain sum of money, to wit, &c., was due; and that the defendant, wrongfully and maliciously contriving to injure the plaintiff, took and distrained certain crops, goods and chattels of the plaintiff of great value, &c., and thereby took a great and unreasonable distress for the said rent, and wrongfully and injuriously sold the same for much less than the best price that might have been obtained for the same, had the same been sold in a due and proper manner, and under due and proper conditions of sale, &c. Plea, not guilty. At the trial before Maule, J., at the last assizes for Yorkshire, it appeared that the defendant, after having distrained the hay and straw on the premises of the plaintiff, who held a farm under him, sold them, subject to a condition that the purchaser should consume them on the premises; the consequence of which was, that they produced less than they would if the sale had been absolute. By the terms of this lease, the plaintiff was bound not to carry off the hay and straw grown on the farm. It was contended for the plaintiff, that the selling of the goods, subject to the above restriction, was a wrongful act, and that the plaintiff was entitled to recover, under the third count, the difference between the price actually obtained, and that which might have been obtained if no such condition had been annexed to the sale. The learned judge, however, was of opinion that no cause of action had been proved, and under his direction a verdict was found for the defendant, leave being reserved to the plaintiff to move to enter a verdict for him on the third count. Alexander, in Easter Term, obtained a rule accordingly ; against which and straw under a distress, may sell it subject to a condition that the purchaser shall consume it on the premises. Exch. of Pleas, 1841. ABBEY ". PETCH. Cresswell and W. H. Watson now shewed cause, and contended, that the third count was not proved; for that as the plaintiff, by the terms of his tenancy, was precluded from carrying away the straw and hay off the premises, the landlord had a right to sell them under the distress subject to the like restriction, and to impose upon the purchaser the condition that they should be consumed upon the premises. Addison, contrà.-The defendant had no right to restrict the sale under the distress according to the terms of the tenancy, but ought to have sold the property absolutely. But for the stat. 56 Geo. 3, c. 50, which enables the sheriff to sell a tenant's property subject to such a restriction, he must have sold it absolutely; but the 3rd section of that statute empowers him to sell the produce of the farm subject to a condition that the purchaser shall expend it on the land. But the landlord, selling under a distress, has no such right. It is true the plaintiff in the present case was under a covenant not to carry the hay and straw off the farm; but he had an absolute property in them, although he would have been liable to the landlord for removing them contrary to the covenant: and the sale of them ought, therefore, to have been absolute and unconditional. Lord ABINGER, C. B.-This rule must be discharged. The only question is, whether the landlord, having distrained for rent, was bound to sell the hay and straw to be consumed off the premises, in a case in which, according to the terms of his covenant, the tenant had no beneficial interest in them. I do not think he was. As the question comes to be decided by us for the first time, we may decide it upon the general principle, that the tenant cannot be in a better situation, by means of a distress, than he would be while paying his rent faithfully. When the |