300 UNREASONABLE DISTRESS. 



Mr. Kelly's argument at the trial against the decision in Abbri/ y. 

 Pckli, that the landlord may sell it subject to such consuming condition. 

 That argument was to the effect that, if that case were law, the land- 

 lord would haye the power of authorizing any number of persons to 

 come upon the land for depasturing the hay and straw during the 

 occupation of the tenant. 



The fticts of Ixodon v. Ei/ton were as follows : the plaintiff had been 

 tenant of a farm, which he cpiitted at Lady-day, 1847, leaying thereon 

 three ricks of corn, his property. By the agreement under which he 

 held the farm, he was bound to consume all the straw, &c., grown on the 

 farm upon the premises. The defendant seized the largest rick as a 

 distress for £39 arrears of a rent-charge, imposed upon the premises 

 under the Tithe Commutation Act, caused it to be valued by two 

 persons who were not professional appraisers, and sold it upon the 

 terms of the purchasers, leaving the straw on the farm. The agreed 

 value of the straw was £20, and of the wheat when severed from it, 

 £42. There was no evidence as to the value of the other two ricks. 

 The plaintiff insisted that the defendant had no right to sell the w'heat, 

 as he did, apart from the straw ; while the defendant contended that 

 the tithe owner was justified in acting upon the condition under which 

 the plaintiff had held the farm, and relied on Abbe// v. Pefclt. Piatt B. 

 acting on that authority directed the jury to find for the defendant, 

 with leave to move to enter a verdict for the plaintiff on the second 

 count (excessive distress), with nominal damages, if the Court should 

 be of opinion that the sale ought to have been unconditional. The 

 Court refused the rule, and merely decided that the seizure under the 

 circumstances did not constitute an excessive distress. Wilde C.J. said, 

 " It appears the entire value of the rick here seized was £62, the value 

 of the wheat being £42, and that of the straw £20, and the claim in 

 respect of which the seizure took place was £39. The value of the other 

 ricks did not appear. There being a question whether the straw could 

 be legally sold, inasmuch as the tenant was under covenant with his 

 landlord to consume all the hay and straw upon the farm ; the tithe 

 owner seized the whole rick (which being an entire thing I think he 

 was justified in doing), and sold the wheat only, leaving the straw upon 

 the land to be enjoyed ]>y whoever might be legally entitled to it. 

 Looking at the amount of arrears, and at the value of the rick, I think 

 it is impossible to say the distress was unreasonable." In reference to 

 Abbey v. Petrh his lordship observed, "It certainly does seem to be a 

 startling proposition to say that the distress may be sold subject to its 

 being used upon another man's premises. But how is that case any 

 authority where the straw is not sold at all, but expressly required to be 



