WHERE LANDLORD TRESPASSES AB INITIO. 305 



distrains for rent actually due in such a manner that he is throughout 

 a trespasser ah iniHo, and does not merely become such by reason of an 

 irregularity subsequent to entry, the measure of damages in an action 

 of trespass brought against the landlord by the person so distrained 

 upon is the fuU value of the goods taken, and the jury, in estimating 

 the damages, ought not to make any deduction from such value in 

 respect of the rent which was actually due. And per BlacMurn J. : 

 "Where a party sues for a taking of his goods, and the defendant had an 

 interest in the goods, there is very little doubt that the defendant may 

 deduct the value of that interest from the damages of the taking. That 

 was, I think, the principle proceeded on in Proudlove v. Twemlow (1 Cr. 

 & Mee. 326) and in Chinery v. Viall (29 L.J. N.S. Ex. 180). Here 

 the landlord was a trespasser ah initio, and did not merely become so by 

 an irregularity after entry so as to be protected by the statute of Geo. II. 

 The case of Keen v. Priest (4 H. & N. 236) is clear against my ruling, 

 and, as I now think, rightly so " {Attach v. Bantell). 



In the case of Orimivood v. Moss (7 L.R. C.P. 360). A lease of a 

 farm contained a condition of re-entry for breaches of covenants which 

 took place before the 24th June, 1871 ; the lessors brought ejectment 

 on the 21st July in the same year, but the wi'it did not claim possession 

 as from an antecedent date. After the commencement of the action, 

 but before trial, the lessors distrained for rent due up to 24th June, 

 1871. Held, that the distress had not waived the breaches of covenant 

 prior to 24th June, 1871. 



