DISTEAIN OF TRIVILEGED GOODS. 297 



reserved in respect of the land for which the defendant could distrain. 

 Tt was, however, held by the Court of Exchequer that although before 

 the commutation such an agreement might have operated as an agree- 

 ment to demise both tithe and land at that joint rent, yet the agreement 

 being after the commutation, the words " tithe free " were surplusage, 

 since by the 80th section of that act, if the defendant distrained for the 

 rent-charge, the plaintiff would be entitled to deduct the amount from 

 his rent, and consequently there was a holding at a rent of £400, as 

 alleged in the avowry. 



Where a landlord distrains for Ins rent, amonfjsi other things, some 

 privileged goods, he is a trespasser ah initio only as to the goods which 

 were not distrainable ; and if the tenant pays the amount and costs of 

 distress, upon which the distress is withdrawn altogether, the tenant 

 can only recover in trespass, the actual damage sustained by the taking 

 of those particular goods, and not the whole amount paid by him 

 (Harveg v. PococJc). It was urged upon the Court in Price v. Wood- 

 house, that, assuming the right to take a heriot is analogous to a right 

 to distrain, this case put a wrongful seizure on the same footing as a 

 subsequent abuse. But per ParTce B. : *' If a party having "a right of 

 entry to take one heriot, enters and takes two, does he thereby become 

 a trespasser al) initio, both as to the entry and also as to the seizure ? 

 Suppose a landlord enters for the purpose of distraining, and he takes 

 certain distrainable goods, and also some chattels not the subject of a 

 distress, would that make him a trespasser ah initio as to the entry, or 

 only as to the seizure of the chattels ? That question was not consi- 

 dered in Harvey v. Pocock. Here the defendants by their pleas attempt 

 to justify the entry and seizure of one horse as a heriot in respect of one 

 tenement ; and the other horse as a heriot in respect of another tene- 

 ment. Then the construction of each replication is this : Though true 

 it is you entered to take a horse as a heriot duo for the particular tene- 

 ment, yet at the same moment you took another horse not due for that 

 tenement. To make the entry good, it must be good with reference to 

 the seizure. That which is prima facie an election, is shown to be no 

 valid election in point of law, and the seizure of the other chattel 

 renders the defendants trespassers ah initio as to the cntiy, as well as 

 the seizure of the chattels. The defendant may amend his pleas on 

 the usual terms, by stating that Price died seised of two tenements, 

 and that there was a custom to take a heriot in respect of each, and 

 that the horses were seized as heriots for those tenements." 



The proper remedg for talcing an excessive distress, is case upon the 

 statute of Marlhridge {52 Hen. III. c. 4) ; and a landlord is liable to 

 some damages in an action on the case for an excessive distress, where 



