282 IMPROPERLY WORKING A DISTRESS. 



sunrise, it was held that the evidence was sufficieut to sustain that 

 lindiug, and that the distresses therefore were illegal (Tufton v. Darke ; 

 Nixon V. Freeman). 



Improperly working a distress. — If a distrainor abuses a distress by 

 working it, the owner may interfere and prevent it, and no action can 

 be maintained against him for pound breach or rescue. Here, after 

 three horses of the defendant, who was a butty-collier under the Messrs. 

 Hickman, tenants to the plaintiffs, of a colliery at a surface rent, and 

 also at a mining rent, had been included in a distress for colliery rent 

 levied on the Messrs. Hickman, and removed to a stable half a mile off, 

 and notice given that they were impounded there, the plaintiffs' ap- 

 praiser directed the bailiffs to bring two of them to work in the pit. 

 One of the horses was locked in a movable stable on the pit bank, and 

 the other was about to be let down, when the defendants took forcible 

 possession of both, breaking the lock of such stable, turned both loose, 

 and then took them away. The plaintiffs got a verdict of XGO treble 

 damages under stat. 2 Wil. & Mary, sess. 1, c. 5, with leave reserved to 

 the defendant to enter a verdict for himself on the ground that neither 

 count of the declaration was proved, the rescue being after the im- 

 pounding, and after the plaintiffs had taken the distress from the pound 

 for an unlawful purpose ; and the verdict was entered for the defendant. 

 And 2)er Wilde B. : " Here there was a plain, palpable misuse of the 

 distress of the most aggravated kind. I think, under the circumstances, 

 the defendant was perfectly justified in interfering. I think, therefore, 

 the rescue is not made out. With regard to the pound breach, it seems 

 to be perfectly plain that directly the distrainor has taken the animals 

 out of the pound for the purpose of using them, it cannot be said that 

 they are any longer under the protection of the law, nor in any artificial 

 sense can they be considered as being in the pound contrary to the 

 fact." {Smilh and Anolhcr v. WriyliL) 



Distress after death of tenant. — T being tenant-at-will at a yearly 

 rent, died leaving rent in arrear ; the next day the lessor distrained on 

 the premises which were then occupied by T's servants ; his widow 

 came into occupation the day after, and subsequently took out adminis- 

 tration to her husband. It was held that the distress was not justified 

 under 8 Anne, c. 14, ss. 6, 7, as it was not made " dtiriny the possession 

 of the tenant from whom the rent became due ;" and senible that 

 WaUccrv. Giles (G C.B., GG'2 ; 18 L.J. (N.S.), C.P. 323) is still law as to 

 the construction to be put upon similar deeds, and is not overruled by 

 Pinhorn v. Sonster, (8 Ex., 7C>'6 ; 22 L.J. (N.S.), Ex., 26G), and Brown 

 V. Metropolitan Counties Life Assurance tiociety (28 L.J. (N.S.), Q.B., 

 236; ; and per Mellor J,, ^' Braithwaite v. Cooksey (1 H. Bl., 467), is 



