Odger's English Common Law

464 WRONGFUL DISTRESS.
all his goods, and in some cases also the goods of a third
person, which are then upon the demised premises, and
after certain formalities he may proceed to sell them. The
right to seize the goods is by law inherent in the relation of
landlord and tenant. 1 But this right may he made an instrument
of oppression; it is therefore jealously guarded and
must always be exercised with extreme caution.
If a landlord distrains the goods of his tenant when no rent
is due, his action is illegal ab initio ; his entry is an indefen-
sible trespass to land ; his subsequent seizure of the goods is
an equally indefensible trespass to goods ; while the subse-
quent sale of them will render him liable to an action of
conversion. If some rent is due, his original entry is lawful
but if he distrains goods which are privileged from distress,
he commits a trespass, and here again the distress is illegal. 2
If the landlord distrains for the right amount of rent due,
but seizes a much larger quantity of goods than is necessary
to satisfy the arrears, he is liable to an action for an excessive
distress under the. Statute of Marlbridge. 3
;
The excess of
the value of the goods distrained above the arrears of rent
due must be unreasonably great. The landlord " is not
bound to calculate very nicely the value of property seized
but he must take care that some proportion is kept between
that and the sum for which he is entitled to take it." 4
If the landlord distrains for more rent than is due, but does
not seize or carry away an excessive amount of goods, he is
•liable to an action for an irregular distress; and so he is
where he distrains for the right amount of rent, but neglects
some requirement which the law has imposed for the
protection of the tenant, 6 e.g., if he gives the tenant no fair
opportunity of payiDg him the arrears of rent before the goods
are seized, or if no precautions are taken by advertisement or
otherwise to secure a good attendance at the sale.
In an action for an illegal distress the plaintiff need prove
no special loss, for the defendant's act is a trespass. So in
1 This is an instance of an implied hypothecation ; see ante, p. 31.
2 51 Hen. III. st. 4 ; see post, pp. 890— S93.
» 52 Hen. III. c. 4.
* Per Bayley, J., in Willoughby v. Backhouse (1824), 2 B. & C. at p. 823.
* See 2 Will. & M. sess. 1, c. 6 ; and Sharp, v. Fowle (1884), 12 Q. B. D. 385.