TRESPASS MAINTAINABLE AFTER TENDER. 279 



good ; but it should be made generally without any condition or quali- 

 fication being imposed on the receiver {Manniipj v. Liuin). Bat tender 

 of saf is/action to a distrainor is too late after the goods have been im- 

 pounded, and this rule applies equally to goods seized for rent as well 

 as to cattle taken damage feasant {Ladd v. Thomas). Patteson J. said, 

 " That such a tender cannot avail where cattle have been distrained 

 damage feasant, is shown beyond a doubt by the cases of Sheriff v. James 

 and Anscomh v. Shore. The same doctrine has been laid down as to 

 goods taken for rent in FirtJb v. Purvis: but that was an act for pound 

 breach ; and it was enough for the decision of the case, that the tenant 

 had no right to take the law into his own hands " {it).). And per Lord 

 Denman C.J. : " I must say I think continuing in possession after a 

 proper tender is ground for an action of trespass j that Lord Ellen- 

 horovgKs doubts on that subject, in Winterhourne v. Morgan, were not 

 well founded ; and that Lc Blanc J. and Bagley J. took a right view of 

 it " (/&.). 



Parke B. ruled, in Vcrtue v. Beasley, that a tenant tendering Ms rent 

 and the costs after distress taken, hut before it is impounded or removed, 

 may maintain tresjmss for a subsequent removal of the distress. His 

 lordship added: " The statute 11 Geo. 2, c. 19, s. 10, gives the option of 

 proceeding by case or trespass. If the injury had arisen from a mere 

 neglect to do some act {i.e., the mere omission to restore the goods after 

 acceptance of the rent), case would have been the only proper remedy." 

 The cause of action here was not the mere retaining possession, but the 

 wrongful removal of the goods after the tender ; and hence the Court 

 of Common Pleas did not consider that their decision in West v. Nibbs 

 conflicted with it. It was decided in West v. Nibbs, that a landlord 

 who had accepted the rent in arrear and the expenses of the distress 

 after the impounding cannot be treated as a trespasser merely because 

 he retains possession of the goods distrained, although his refusal to 

 deliver them up to the tenant may amount to a conversion, so as to 

 render him liable in trover. And per Cresswell J., Evans v. Ellioi (in 

 which it was held that replevin lay, at common law, for a wrongful de- 

 tention of goods taken under a lawful distress), " is an authority for the 

 proposition that, where there has been a tender between the taking and 

 the impounding, a detention after the tender is suSicient to satisfy the 

 usual allegation in a declaration in replevin, that the defendant took, 

 &c., and detained, &c.; but yet it does not decide that the mere retain- 

 ing by the landlord of the goods distrained, after the tenant has gained 

 a right to have them delivered up to him, will render the landlord 

 liable to an action of trespass." And per Wilde C.J., in allusion to 

 Evans v. Elliot : " My present impression certainly is that trespass will 



