The 1 & 2 Ph. & M. c. 12, requires that no distress of cattle be removed out of the hundred, except to a pound overt in the same county, not above three miles from the place where such distress is taken, and that no cattle or other goods distrained at one time be impounded in several places, whereby the owner would be obliged to sue out several replevins.
The 2 Will. & Mary, seas. 1, c. 5, § 3, directs that corn, grain, or hay distrained be not removed, to the damage of the owner, out of the place where the same shall be found or seized, but be kept there until replevied or sold • and 11 Geo. II. 6. 19, which gives a distress for rent-service upon growing crops, directs, §§ 8 and 9, that they shall be cut, gathered, and laid up, when ripe, in the barn or other proper place on such prey mises, or if none, then in some other barn, &c., to be procured for that purpose, and as near as may be to the premises, giving notice within one week of the place where such crops are deposited ; and if the tenant, his executors, &c., at any time befbte the crops distrained are ripe and cut, pay or tender the rent, costs, and charges, the goods distrained are to be restored. In all other cases, if the rent or other duty be paid, or performed, or tendered to be paid or performed be fore the distress is impounded, a subse quent detainer is unlawful, and a subse quent impounding or driving to the pound is a trespass.
The statutes authorising the sale of distresses extend only to those made for rent At common law distresses cannot in general be either sold or used for the benefit of the party distraining. But a distress for fines and amerciaments in a court leet, or for other purposes of public benefit, may be sold ; and a special cus tom or prescription will warrant the sale of a distress in cases where the public has no immediate interest.
A distress made by a party who has no right to distrain, or made for rent or other service which the party offers to pay or perform, or made in the public highway, or upon goods privileged from distress either absolutely or temporarily, is called a wrongful distress. Where no right to distrain exists, or where the rent or duty is tendered at the time of the dis tress, the owner of the goods may rescue them or take them forcibly out of the possession of the distrainer, or bring either an action of replevin, or of trespass. In replevin, the cattle or goods taken are to be redelivered to the owner upon his giving security by a replevin bond, for returning them to the distrainer, in case a return shall be awarded by the court ; and therefore in this action damages are recovered only for the intermediate deten tion and the costs of the replevin bond.
In the action of trespass the plaintiff re covers damages to the full value of the goods ; because upon such recovery, the property in the goods is transferred tc the defendant The 2 W. & M. seas. 1. c. 5, § 5, pro vides "that in case of any distress and sale for rent pretended to be due, where in truth no rent is due, the owner of the goods so distrained and sold may, by ac tion of trespass or upon the case, recover double the value of such goods, with full costs of suit." Whether goods are rightfully or wrong fully distrained, to take them out of the pound is a trespass and a public offence. The proceeding by action is a more pru dent course than making a rescue, even before an impounding, where any doubt exists as to the lawfulness of the distress. Independently of the danger of provoking a breach of the peace by the rescuer's thus taking the law into his own hands, he will be liable to an action for the injury sustained by the distrainor by the loss of the security of the distress, should the distress ultimately turn out to be law ful ; and in such action, as well as in the action for poundbreaeh, the rescuer will be liable, under 2 W. & M. seas. i. c. 5, § 4, to the payment of treble damages and treble costs.
A distress for more rent, or greater services than are due, or where the value of the property taken is visibly dispropor tionate to the rent or other appreciable service, is called an excessive distress, for which the party aggrieved is entitled to recover compensation in an action on the case ; but he cannot rescue, nor can he replevy or bring trespass.
Upon a distress rightfully taken being afterwards irregularly conducted, the sub sequent irregularity at common law made the whole proceeding wrongful, and the party was said to be a trespasser " ab initio." But now, by 11 Geo. II. c. 19, where distress is made for rentjustly due, and any irregularity or unlawful act is afterwards done by the party distrain ing or his agent, the distress itself is not to be deemed unlawful nor the party making it a trespasser ; but the person aggrieved by such irregularity, &c. may recover satisfaction for the special damage sustained. ( Bradby Oa Distresses, Gilbert, Distr.; Bracton ; Fleta; Cokt upon Littleton ; Bacon, Comyns, and Viner's Abridgments ; Willes's Reports ; 6 Nevile and Mann, 606.)