274 DETAIXTXG CATTLE AFTER TENDER OF AMENDS. 



land before the distress makes the distress tortious; tender after tlie 

 distress, and before the impounding, makes the detainer, and not the 

 takingr, 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 tlie law, to be there determined. But, after 

 the law has determined it, and the avowant has return irreplevisable, 

 yet if the plaiutitt" makes him a sufficient tender, he may have an action 

 of detinue for the detainer after ; or he may, upon satisfaction made in 

 Court, have a writ for the re-delivery of his goods.' 



" Tt appears to me that when the present plaintiflF found he was too 

 late to make a tender so as to entitle himself to replevy the sheep, and 

 to succeed in an action of replevin, his proper course was to make a 

 tender of sufficient amends to cover the damage sustained ; and in the 

 event of the defendant refusing to accept the sum tendered, and deliver 

 up the sheep, he should have brought detinue {i.e., upon a tender lefure 

 the impounding), for they were held by the defendant merely as a pledge. 

 In that case the hazard of the sufficiency of the tender would fall, as it 

 ought to do, on the owner of the cattle. It has been urged that here a 

 tender was unneccsi^ary, inasmuch as the sum demanded for compensa- 

 tion was exorbitant. That argument, however, as it seems to me, is 

 answered by saying that the risk of determining the real amount of 

 damage is not by law imposed upon the defendant.' This I should be 

 disposed to hold upon principle, and independently of the authority of 

 Lindon v. Hoojjpr, which I am unable to get over, and which I am not 

 aware has been overruled ; and though cases have occurred in which it 

 has been decided that an excessive demand dispenses with a tender, yet 

 those were cases where the law made it incumbent on the defmdant 

 correctly to ascertain the amount of his demand. The cases of Barrett 

 V. The Stockton and Darlington Railway Comjinny and Parker v. The 

 Great Western Railway Company range themselves within this class. 

 The cases of Knihhs v. Hall and Skeate v. Beale follow the doctrine of 

 Lindon v. Hooper, On authority, therefore, as well as principle, the 

 verdict for the defendant ought to stand." 



And;w Mauh J. : "The owner of the land is no wrong-doer if he 

 distrains before tender made ; nor is he a wrong-doer if he impounds 

 before tender, or after an insufficient tender. Here the real question is, 

 whose duty it was to estimate the damage : if the owner of the cattle 

 was bound to make a tender, he was to ascertain the amount at his 

 peril." 



An action will lie against a landlord, at the suit of the tenant, for de- 

 laining the goods taken under a distress, after tender of rent in arrear and 

 costs, before imjioundiny {Loring v. Warhurton). And per Coleridge J. : 



