DISTEAINIXG BEASTS OF HUSBANDRY. 287 



rant ; under the last distress beasts of the plough were taken, there 

 being at the time more than sufficient to answer the demand. The 

 first distress proved insufficient in value, whereupon a second distress 

 was made, which was excessive, and in it were also included beasts of 

 the plough. In that case, there were three questions calling for the 

 decision of the Court : first, whether in the last distress beasts of the 

 plough could be distrained for at all, if there were other things of suf- 

 ficient value upon the premises ; secondly, whether the second distress 

 under the same warrant was at all justified ; and thirdly, whether the 

 second distress being excessive, that circumstance alone was not suffi- 

 cient to maintain the action of trespass. On the first point the Court 

 was of opinion that beasts of the plough were distrainable under 4?> 

 Eliz. and such like Acts of Parliament, and upon the second and third 

 questions the Court held, that if a man makes a distress which is in- 

 sufficient in the value of the goods, and afterwards on discovering the 

 mistake makes a second seizure, in that case an action of trespass can- 

 not be maintained for taking an excessive distress. With respect to 

 Jenner v. YoUand, which was an action on the case, for distraining 

 beasts of the plough, where there were other goods of sufficient value 

 which ought to have been distrained, the matter in dispute was, 

 whether the value of the other goods was to be judged of at the time 

 the distress was originally made, or whether it was to be ascertained by 

 the subsequent sale ; and the Court held that the legality or illegality 

 of the distress was to be determined by the circumstances of the dis- 

 tress at the time it was made. The judgment of Wood B. puts the 

 case very clearly, and there is nothing in that case to show that tres- 

 pass will not lie if tools of trade are illegally taken. It is true there 

 are precedents for making the illegal distress of tools of trade the 

 subject of an action on the case ; but there are also many authorities 

 which show that the wrongful taking may be the ground of trespass, 

 and yet the party aggrieved may, if he pleases, waive the trespass 

 and sue in case. The view that we have taken, that the wrongful 

 seizure of tools of trade is the subject matter of an action of tres- 

 pass, is fully confirmed in Dawson v. Alford, which shows that it 

 is not necessary for the plaintiff in his declaration to allege that 

 there were other goods of sufficient value, which might have been 

 distrained, but the defendant must by his plea answer, if he justi- 

 fies, that no other sufficient distress could be had. The rule must be 

 discharged." 



y^havQ the sheep of a third person Ofi the land of a tenant were distrained 

 ly the landlord for rent, when other things availalle for the distress were 

 upon the premises, in an action against the landlord by the owner of 



