272 PROPER MODE TO TRY VALIDITY OF DISTRESS. 



I sliould agvQC with the passage ah'eady alluded to in Gilbert on Distress, 

 pp. 82, 83, that where the baililt' is authorized to distrain, and distrains 

 without the personal intervention of the landlord, he would be authorized 

 to receive the rent. But it by no means follows that because a tender 

 may be well made to the bailiflf or broker authorized to distrain, a tender 

 may be made to any person assisting in the distress, and it would be a 

 monstrous proposition to say that the rent might be paid to any irre- 

 sponsible person who happened to be left by the bailiff in temporary posses- 

 sion of the goods. The case of Smith v. Goodwin (1 Nev. & M. 371, and 

 4 B. & Ad. 413 ; 2 L.J. (N.S.) K.B. 192) was relied upon for the plain- 

 tiff as assuming the proposition for which he contended, that the person 

 left in possession had authority to receive the rent ; but in that case the 

 rule was refused, on the ground that the tender to the landlord himself 

 was good. The short dictum as to the tender to the man in possession 

 was wholly unnecessary and beside the question {Boulton v. Reynolds, 

 29 L.J. Q.B. 11). 



An action on the case does not lie for detaining cattle distrained damage 

 feasant, ivhere tender of sufficient amends ivas made after the cattle had 

 been impovnded (Sheriff v. James). It was also held in Ansco7nhe v. Shore 

 that such an action would not lie, and comnie semble such an action could 

 not be supported, even if the tender of amends had been made before 

 the impounding, as the proper mode to try the yahdity of a distress is 

 by an action of replevin or trespass. Lindon v. Hooper, which Lord 

 Mansfield C.J. referred to, in this case, decided that money had and 

 received did not lie to recover back money paid for the release of cattle 

 taken damage feasant, though the distress were wrongful, the proper 

 remedy being trespass and replevin. In Glynn v. Thomas, which was 

 argued in Error from the Exchequer, and where the principle on which 

 Lindon v. Hooper was decided, was expressly in pomt, Coleridge J. 

 remarked, " Lindon v. Hooper was a case in which the plaintiff's cattle 

 had been distrained damage feasant, and not for rent in arrear ; and it 

 was acted upon, in the Court of Common Pleas, in the case of Gulliver 

 V. Cosens, in which all the prior authorities were carefully reviewed, and 

 in which it was held that wlicre cattle arc distrained damage feasant, 

 an exorbitant sum demanded for the damage, and the owner pays that 

 sum under protest, but makes no tender of a sufficient sum, he cannot 

 recover back the sum so paid as money had and received to his use. 

 And in the same case it was further held, that if he had tendered a 

 sufficient sum before the distress made, his remedy would have been 

 replevin or trespass ; if after the distress, but before impounding, 

 detinue. The passage cited in that case from that of the Six Carpenters 

 (8 Rep. 147) is very important in thiS; because in it Lord Coke clearly 



