COURSE AS TO SURPLUS FROM DISTRESS. 285 



demurrer tluit the outer door of an ouiliouso might Im Irolmi open for the 

 purpose of executing a fieri fcicias. This, however, is not inconsistent 

 with our decision ; for a distinction may be reasonably made between 

 the powers of an officer acting in execution of legal process, and the 

 powers of a private individual who takes the law into his own hand, 

 and for his own purposes. There is another well-known distinction, 

 that a landlord cannot distrain at all hours, whereas the sheriff is under 

 no such restriction." 



A landtord or bailiff who has distrained, even if not lomid (as sembte 

 he is) to restore goods remai?iing vnsold to the premises on which he dis- 

 trained them, is at liberty to do so ; and his doing so will not be a 

 conversion, even although they are the goods of third parties, and the 

 bailiff has had notice of this from them after the impounding, and has 

 promised to act on the notice, both as to the goods unsold and the 

 surplus proceeds of goods sold : for such a promise does not impose 

 any duty on the bailiff to deliver the goods to the right owner, neither 

 will it sustain an action for money had and received to recover the 

 surplus proceeds of the goods sold {Evans v. Wright). 



Where goods distrained for rent in arrear have been removed to a 

 convenient place for sale, and sufficient sold to satisfy the distress, the 

 proper course is for the broker to leave the surplus money with the 

 sheriff, and return tlie surplus goods to the premises from whence he 

 took them {Evans v. Wright) ; and, where a broker has distrained for 

 rent the right goods of the tenant, the landlord, having authorised the 

 distress, is liable for any irregularity committed by him in the sale 

 of such distress, although doue without his knowledge {HaseJer v. 

 Le Mogne). 



Tilings are not distrainalte irhich cannot he restored in the same plight 

 in which they were before the distress, and as Patteson J. observed of 

 fixtures, in Darhg v. Harris, the reason would be more apparent in 

 former times, when the landlord was obliged, on distraining, to remove 

 the distress from the premises. 



Until 2 Will & M. c. 5, no sheaves or cocks of corn, loose or in the 

 straw, or hag in ang barn or granarg, or in ang hovel, staclc, or rick, 

 could bg the law be distrained or otherwise secured for rent ; but sec. 3 of 

 that statute gave the landlord power to seize it upon any part of the 

 land or ground. The common law is not taken away by the above 

 statute, and commodities of a perisliable nature, which cannot l)e restored 

 on a replevin in the same state as that in which they were taken, cannot 

 be made the subject of distress. Hence the carcase of a beast sent to the 

 butcher's {Brown v. Shevill) and the flesh of animals lately slaughtered 

 cannot be distrained {Morleg v. Pincombe). Neither can animals fercB 



