ILLEGAL DISTRESSES. [* 341] for the best the same to him the said C. D. and then and there gave notice thereof to the form of the statute in such case made and provided, to wit, at, For not selling [Commencement as ante, 287.]-For that whereas, heretofore, to wit, on, &c. at, &c. the said C. D. seized and distrained divers goods and chattels, price, on the equity of stat. to wit, &c of him the said A. B. of great value, to wit, of the value of L.-, 2 W. & M. c. of lawful, &c. then found and being in and upon a certain messuage or 5. s. 2. (z). dwelling-house, with the appurtenances, situate at, &c. as for and in the name of a distress for certain arrears of rent alleged to be due to the said C. D. for the use and occupation of the said last-mentioned messuage, or dwelling-house, in which, &c. And whereas also the said C. D. afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, sold a part of the said goods and chattels for payment and satisfaction of the said sup, posed arrears of rent, and of the charges of the said distress. Yet the said C. D. not regarding his duty in making and selling the said distress, nor the statute in such case made and provided, but contriving, and fraudulently intending craftily and subtly to injure the said A. B. in that behalf, did not, nor would sell the said goods and chattels under the said distress for the best price that could be gotten for the same, but on the contrary thereof, the said C. D. then and there, to wit, on, &c. aforesaid, wrongfully and injuriously *sold the said goods and chattels for much less than the best price (that is to say) for L.- less than the best price which might have been gotten and received for the same, had the same been sold in a due and proper manner by the said C. D. to wit, at, &c. aforesaid.—[Add a count in trover, and conclude as ante, 287.] [342] On equity of [Commencement as ante, 287.]-For that whereas heretofore, to wit, M. c. 5. s. 2. on, &c. at, &c. the said C. D. seized and distrained divers goods and stat. 2 W. & for not leaving the overplus arising from the sale of a distress with (z) The price at which the goods were distrained will be presumed to the sheriff, &c. be the best that could be obtained till the contrary be proved. 4 Mod. 390. Com. Dig. Distress, D. 8. RESCUE AND POUND BREACH. chattels, to wit, &c. of him the said A. B. of great value, to wit, of the value of L.-, of lawful, &c. there then found and being in and upon a certain messuage, or dwelling-house, with the appurtenances, situate, &c. as and for and in the name of a distress for certain arrears of rent alleged to be due to the said C. D. for and in respect of the said messuage, or dwelling-house. And whereas also, the said C. D. having caused the said goods and chattels to be appraised, afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, sold a part of the said goods and chattels so by him seized and distrained as aforesaid, for payment and satisfaction of the said supposed arrears of rent, and of the charges of the said distress, appraisement, and sale for divers sums of money, amounting in the whole to a certain sum of money, to wit, the sum of L.-, of lawful money of Great Britain, being a much larger sum of money than was sufficient to satisfy and discharge all the rent then due for the said messuage, or dwelling-house, with the appurtenances and all the charges of the said distress, appraisement, and sale. And the said A. B. further saith, that although the said C. D. afterwards, to wit, on, &c. last aforesaid, at, &c. out of, and with a part of the produce of the said goods and chattels, so by him sold as aforesaid, satisfied the said rent, for which the said goods and chattels were so distrained as aforesaid, and the charges of the said distress, appraisement, and sale, leaving a great and considerable overplus of the money produced by the said sale; yet the said C. D. not regarding his duty in that behalf, nor the statute in such case made and provided, but contriving and fraudulently *intending to deceive and defraud the said A. B. in this behalf, [* 343 ] did not, after satisfaction of the rent for which the said goods and chattels were so distrained as aforesaid, and of the charges of the said distress, appraisement, and sale, out of the produce of the said goods and chattels so sold as aforesaid, leave the overplus thereof in the hands of the sheriff, or under-sheriff, of the said county of --, or either of them, or of the constable of the parish where the said distress was so taken as aforesaid, for the use of the said A. B. so being the owner of the said goods and chattels as aforesaid, although a reasonable time for that purpose hath long since elapsed, but the said C. D. hath hitherto wholly neglected and refused so to do, and therein wholly failed and made default, and he the said A. B. hath not yet received nor been in any way satisfied for such overplus as aforesaid, contrary to the form of the statute in such case made and provided, to wit, at, &c. aforesaid. [Commencement as ante, 287] For that whereas the said C. D. for For rescue of a long space of time, to wit, for the space of next before, and distress for rent, on a (a) See the precedents, 8 Wentw. Ind. xxiv.-3 Ld. Raym. 177-1 Ld. Raym. 170.-Lutw. 213. The stat. 2 W. & M. s. 1. c. 5. s. 4. enacts, "that VOL. II. common ap purtenant (a), under sta upon any found breach or rescue of tutes 2 W. and POUND BREACH. [344] RESCUE AND ending on, &c. and from thence until and at the time of committing the several grievances hereinafter mentioned, held and enjoyed a certain farm and lands, with the appurtenances, situate, &c. that is to say, as tenant thereof to the said A. B. under, and by virtue of a certain demise thereof, theretofore made to him the said C. D. at and under a certain yearly rent, to wit, the yearly rent of L., therefore payable by the said C. D. to the said A. B. on, &c. and on, &c. by even *and equal portions (b) of which said rent a certain sum of money, to wit, the sum of L.—, of lawful, &c. on the said, &c. aforesaid, became due and payable, and from thence until and at the time of committing the several grievances hereafter-mentioned was in arrear and unpaid from the said C. D. to the said A. B. to wit, at, &c. aforesaid. And whereas the said A. B. heretofore, to wit, on, &c. by one E. F. his bailiff in that behalf had according to the form of the statute (c) in such case made and provided, seized and taken divers, to wit, two cows, then feeding and depasturing in and upon a certain common field, or piece or parcel of land, situate, lying, and being in, &c. aforesaid, the same being then and there common appurtenant to and belonging to the said demised premises, as for and in the name of a distress for the said sum of L.- of the rent aforesaid so in arrear and unpaid as aforesaid. And the said A. B. and his said bailiff were then and there driving the said cows to a certain common pound, situate and being at, &c. and within three miles from the place where the same were so taken as aforesaid, and would there have impounded the same, with intent to appraise and sell and dispose of the said cows, according to the form of the statute in such case made and provided, whereupon he the said C. D. on, &c. last aforesaid, at, &c. aforesaid, with force and arms, (d) &c. rescued, seized, took, and drove away the said cows, contrary to the form of the statutes in such wrong thereby sustained, recover tre- (6) As the statute 2 W. & M. c. 5. feasant, the title needs not to be stated, 1. Ld. Raym. 104.-1. Salk. 247. The precedents in Lutw. 218.-3 Ld. Raym. 177.-Mod. Entw. 210. state the demise fully, and it is said that the days of payment of the rent ought to be alleged, Kitt. 227, a.-Com. Dig. Pleader, c. 19.-B. N. P. 61.—8 T. R. 130; but, to avoid a variance, no unnecessary terms of the tenancy should be stated, Dougl. 665. (c) By the 11th Geo. 2. c. 19. s. 8. a distress may be made of live stock upon common appendant or appurtenant. (d) Though the action given by the statute is case, yet the injury is stated vi et armis, Lutw. 213.-Ld. Raym. 177. case made and provided, *whereby he the said A. B. hath been and is greatly delayed in the recovery of the said rent so in arrear as aforesaid, and deprived of the means of obtaining satisfaction thereof, and of the costs and charges of the said distress, and is likely to lose the same, to wit, at, &c. aforesaid. RESCUE AND POUND BREACH. [* 345 ] And whereas also the said A. B. on, &c. aforesaid, at, &c. aforesaid, Second count for a pound by the said E. F. his bailiff in that behalf, had seized and taken divers breach (e). goods and chattels, to wit, &c. in a certain barn, parcel of the said farm, with the appurtenances, as for and in the name of a distress for the said sum of L.-, of the rent aforesaid so in arrear and unpaid as aforesaid, and had impounded and secured the said goods and chattels in the said barn (being the most fit and convenient part of the said demised premises for that purpose) with intent to appraise and sell and dispose of the said goods and chattels, according to the form and effect of the statute in such case made and provided (f), whereupon he the said C. D. on the same day and year last aforesaid, at, &c. aforesaid, with force and arms, &c. broke the said pound, and rescued the said last-mentioned goods and chattels, contrary to the form of the statute in such case made and provided. Whereby, &c. [state the damage as in first count, and add a count in trover, and conclude as ante, 287.] cattle taken damage fea [Commencement as ante, 287.] For that whereas heretofore, to wit, For rescuing on, &c. at, &c. the said A. B. by E. F. *his bailiff in that behalf, had taken in a certain close of him the said A. B. situate at, &c. certain cat- sant (g). tle, to wit, &c. doing damage to him the said A. B. there, and was then and there, by his said bailiff in that behalf, about to impound the said cattle for the cause aforesaid. Yet the said C. D. well knowing the (e) See the notes of the last prece dent, and 5 T. R. 432. from which it appears that it is no answer to this action that the rent and costs were tendered after the distress and impounding. As to pound breach being indictable, see 2 Hawk. c. 10. s. 56.-4 Leo. 12.-Gilb. 75.-Crown Cir. Ass. 299.-Com. Dig. tit. Rescous, D. 3. (f) 11 Geo. 2. c. 19. s. 16. It is not necessary to state that notice of the distress was given, Ld. Raym. 170.-Lutw. 214. (g) See Com. Dig. tit. Distress, D. 2, 3. and the Precedents, 8 Wentw. Index xxiv.-Lutw. 1259. Rescue and pound breach may be joined, Ld. Raym. 83. As to the venue F. N. B. 101. E. n. c.-B. N. P. 63. The reme dy for the rescue of a distress dam- [* 346 ] FOUND BREACH. RESCUE AND premises, but wrongfully and injuriously contriving and intending to injure the said A. B. and to deprive him of the benefit of the said distress afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, unlawfully, and against the will of the said A. B. with force and arms rescued the said cattle, and took the same from the said E F. and thereby prevented him the said E. F. from impounding the same, as he otherwise lawfully might and would have done, to wit, at, &c. aforesaid; by means of which said premises he the said A. B. hath been and is greatly injured, and deprived of the said means of obtaining compensation for the damage so done and doing by the said cattle as aforesaid, to wit, at, &c. aforesaid. If the declaration be framed in case, a count in trover may be added, and if in trespass, a common count for the damage to the land should be joined, and a count for taking away cattle.] For a pound [Commence as ante, 287.] For that whereas, heretofore, to wit, on, breach, cattle &c. at, &c. when he the said A. B. had then and there taken and distaken damage feasant (h). trained certain cattle, to wit, in a certain close of him the said A. B. situate, &c. treading down, trampling upon, spoiling, and consuming the grass growing in his said close, and doing damage therein to him the said A. B. and had impounded the said cattle in a certain common and open pound, in, *&c. aforesaid, as a distress for the said damage, according to the law and custom of England, he the said C. D. with force and arms, &c. afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, broke and entered the said common and open pound, and rescued and took away from and out of the said pound the said cattle so impounded therein as aforesaid-Whereby, &c.-[State the damage as in the last count, and add other counts as there directed.] [⚫ 347] For a rescue of a person arrested on a mesne process (i). [As in the declaration for an escape, post 349, 350, to the end of the statement of the delivery of the writ to the sheriff, and then state the (h) See the notes of the last precedent; 8 Wentw. Ind. xxiv.-Lutw. 1259.-Ld. Raym. 104. It is most usual to join this count with a count in trespass for damage feasant, when the action is against the owner of the cattle. (i) See the precedents, 8 Wentw. Ind. xxiv.-8 T. 127. Com. Dig. tit. Rescous, D. 2. Bac. Ab. tit. Rescue. If it be doubtful whether an actual arrest can be proved, a count should be added for obstructing the sheriff in making the arrest, F. N. B. 102. F. Com. Dig. Rescous, B. If the rescue be upon final process, the declaration should state the judgment, the ca. sa. and the delivery thereof to the sheriff, as ante, 190 to 193. and then the warrant-the arrest—and the rescue may be stated nearly as in the above precedent. See the precedents on final process, 8 Wentw. Ind. xxiv. It does not seem necessary in a Declaration for a Rescue either on mesne or final process, to state the warrant to the bailiff; it may be stated that the sheriff arrested the party, and that the rescue was from his custody, and this seems preferable; Cro. Jac. 242. 485. Com. Dig. tit. Rescous, D. 2. |