ONUS OF ESTIMATING DAMAGE TO LAND. 273 



puts tender of arrears of rent on the same footing with tender of amends 

 as applicable respectively to distress for rent in arrear, and distress for 

 damage feasant. In GuUwer v. Cosens the Court assumed the sum 

 demanded for the damage to have been excessive, but laid it down that 

 the plaintiff, being the original wrong-doer, was still bound to tender 

 the sum which he alleged to be sufficient ; and in the present case the 

 plaintilf for the same reason was equally bound to make the tender ; 

 he was in arrear with his rent, and therefore first in default : by the 

 law he must be taken to know the amount for which he is in arrear, and 

 the landlord when he distrains is not bound to inform him." 



The facts of Oulliver v. Cosens were as follow: A flock of sheep, 

 belonging to the plaintiff, having strayed upon the defendant's land, 

 they were distrained as damage feasant by the defendant, who refused 

 to restore them except upon payment of £2 15s. 9d., his estimate of the 

 damage. This the plaintiff paid under protest, and brought an action 

 for money had and received. It was urged for the defendant, on the 

 authority of Lindon v. Hoojmr, that the action was not maintainable, 

 and that where an exorbitant demand was made for compensation, the 

 only remedy was replevin. Alderson B. directed a nonsuit, reserving 

 to the plaintiff leave to enter a verdict for that sum, if the Court should 

 think the action well brought. The actual damage done by the sheep 

 was estimated by the jury at 5s. The Court discharged the rule ; and 

 Tindal C.J. thus laid down the law on the subject : 



"The question at issue seems to me to depend on the considera- 

 tion npon which of the parties has the law cast the onus of estimating 

 the amount of damage done to the owner of the land. The party whose 

 sheep have trespassed is in the first instance the wrong-doer; it is 

 therefore upon him that the risk of estimating the amoun' of damage 

 ought to rest, and not upon the party who has suffered by the trespass. 

 If the owner of the cattle elects to make a tender of sufficient amends 

 before the distress, and the distrainor refuses it, the latter becomes a 

 wrong-doer ; but a tender after distress does not entitle the owner to 

 replevy his cattle. The rule of law cannot be more clearly stated than 

 is done by Lord Cole in the Six Carpenters' case. Vide John Matre- 

 rer's case : it is held by the Court that if the lord or his bailiff' comes 

 to distrain, and before the distress the tenant tenders the arrears upon 

 the land, there the distress taken for it is tortious. The same law for 

 damage feasant, if, before the distress, the tenant tenders sufficient 

 amends ; and therewith agree 7 Ediv. III. 8 b., in the Jllaster of St. 

 Mar¥s case; and so is the opinion of Mill to be understood in 13 

 Hen. IV. 17 &., which opinion is not well abridged in title 'Trespass,' 

 Fitzh. pi. 180. 'Note, reader, this difference, that tender upon the 



