Common Pleas.-Dawson v. Cropp.

EARLE, J.-I agree with the rest of the wards, and whilst the said rent so remained court in the judgments they have given. I due, in arrear, and unpaid as aforesaid, and thought at the trial, as I do now, that an ad- during the continuance of the said demise mission of liability amounted to an admission and tenancy, to wit, on the day and year in of all the facts which constituted liability. the said last count mentioned, entered into The facts of protest and notice were necessary and upon the said messuage, the outer door here to constitute liability. As the jury, thereof being then open, in order to distrain therefore, thought that these letters admitted for the said arrears of rent, and did then and a liability on the part of the defendant to pay this bill, the verdict was perfectly right. Rule discharged.

DAWSON V. CROPP.-April 30th, May 2nd, and
July 2nd, 1845.

LANDLORD AND TENANT-DISTRESS—TROVER.

After a distress of goods of sufficient value to satisfy arrears of rent had been made, and abandoned by the landlord without any cause or excuse, a second distress for the same arrears of rent is illegal and trover will lie for a conversion of the goods seized and sold under such last mentioned distress.

there distrain the goods and chattels in the said last count mentioned, then being in and upon the said messuage, and subject and liable to such distress, as and for a distress for the said arrears of rent so due and owing to the defendant as aforesaid, and as the defendant lawfully might for the cause aforesaid; and the defendant did thereupon, to wit, on the day and year last aforesaid, take and seize the said goods and chattels, and impound the same as a distress for the said arrears of rent so due as aforesaid, as he lawfully might for the cause aforesaid, and did thereupon give notice to the plaintiff of such distress, and the cause of such taking THIS was an action of trover for the conver- and which said seizure and taking of the said sion by the defendant of various goods and goods and chattels as such distress as aforechattels, the property of the plaintiff. The said was and is the said grievance in the said defendant pleaded, that, before and at the time last count mentioned, and whereof the said &c., and during all the time during which the plaintiff has above complained against the rent distrained for as hereinafter mentioned defendant; and this the defendant is ready to was accruing due, to wit &c., the plaintiff held verify, &c. Replication, that, after the arand enjoyed a certain messuage, with the ap-rears of rent in the said last plea mentioned purtenances as tenant thereof to the defend- had become due and payable, and before the ant, under and by virtue of a certain demise committing of the grievances in the said last thereof before then made to the plaintiff, at count mentioned, and before seizing, taking, and under the yearly rent of 561., payable by or distraining the goods and chattels in the the plaintiff for the same quarterly, on the last count as in the said last plea mentioned, 22nd March, on the 24th June, on the 29th to wit, on the 25th of June, 1844, the defenSeptember, and on the 25th December, in dant seized, took, and distrained divers goods each and every year during the continuation and chattels of the plaintiff other than the of the said demise, by even and equal por- goods and chattels in the said last count mentions, the reversion of and in the said mes- tioned, that is to say, the goods and chattels suage during all the time aforesaid being in, in the first count mentioned, as a distress for and still belonging to, the said defendant. the said arrears of rent in the said last plea And the defendant avers, that, during the mentioned, the said last mentioned goods and said demise and tenancy, and before the time chattels then being in and upon the said mesof the committing of the said grievance in suage, with the appurtenances, and then bethe said last count mentioned, to wit, on the ing subject and liable to a distress for the said 24th June, 1844, a large sum of money, to arrears of rent, and of sufficient value to wit, 281. of the rent aforesaid, for the space satisfy the said arrears of rent, and the costs of half a year, ending on the day and year and charges of the same distress, the appraiselast aforesaid, and then last elapsed, became ment and sale thereof; and the defendant and was due and payable from the plaintiff then could and might, and ought to have fulto the defendant, and from thence until and ly paid and satisfied the said arrears of rent, at the time of the committing of the said and the costs and charges of the said distress, grievance by the said defendant in the said the appraisement and sale thereof, out of and last count mentioned, remained and continued with the last mentioned goods and chattels, due and in arrear; and the defendant after-Yet the defendant wrongfully and vexatious

Common Pleas.-Dawson v. Cropp.

ly, and without any cause or excuse, refused satisfied; and for that the said sur-rejoinder and neglected so to do, and after making the is in other respects insufficient, &c.

Talfourd, Serj't, in support of the demurrer. A distress taken and abandoned withtherefore, is not liable to be sued in trover for out sale does not satisfy the rent; a landlord, whether the goods first distrained were or making a second distress; nor is it material were not of sufficient value to satisfy the arbefore sale, and the rent remained due. Lear rears of rent, if the distress was abandoned v. Edmonds, 1 B. & Ald. 157; Lingham v. Warren, 2 B. & B. 36. Then, Dallas, C. in which the taking a sufficient distress might says, There are many cases supposable not produce a satisfaction of the rent. Ravenor, 2 B. & B. 662.

J.

Hudd

said distress in this replication mentioned for the said arrears of rent on the last mentioned goods and chattels, to wit, at the said time when, &c., and in the last count mentioned, of his own wrong vexatiously seized and took the goods and chattels in the last count mentioned, and converted and disposed thereof to his own use, in manner and form as the plaintiff hath above thereof complained against him. Verification. Rejoinder, that the goods and chattels so seized, taken, and distrained as in the said replication mentioned before the making of the said distress in the said last plea mentioned were not of sufficient value to satisfy the said arrears of rent; and the defendant afterwards, and before the mak-v. ing of the said distress in the said last plea Gaselee, Serj't, contra.-If a landlord dismentioned, to wit, on the 25th day of June, trains goods to satisfy rent, and voluntarily in the year of our Lord 1844, lawfully aban- abandons the distress, he cannot lawfully make doned and put an end to the said distress in a second distress for the same rent, although the said replication mentioned, and withdrew it may remain due. If he do make such secfrom the possession of the said goods and chat- ond distress, he is liable to be sued in trover tels seized, taken and distrained under the same, for the goods taken. If the defendant's reand did not at any time sell or dispose of the joinder, therefore, in the present case, is good, said goods and chattels, or any or either of this can only be upon the ground, that the them, or any part thereof, under the said dis- sufficiency of the first distress was material, tress; and the said rent so distrained for as and then the sur-rejoinder must be good also. in the said last plea mentioned, at the time of In 1 Saunder's Rep. 201, the rule is laid down the making of the distress in that plea men- thus: "It is true that, regularly, at the comtioned, remained and was fully unpaid and mon law, where there is an entire duty or unsatisfied. And so the defendant further rent due, a man should distrain for the whole says, that he did not of his own wrong vexa- at once, and not for part at one time and part tiously make the said distress in the said last at another, for that would be oppressive and plea mentioned. Verification. Sur-rejoinder, illegal; and therefore, if he distrains a secthat the goods and chattels seized, taken, and ond time for the same thing, he ought to distrained as in the said replication mention- shew, that, at the time of taking the first dised were of sufficient value to satisfy the said tress, there was not sufficient upon the prearrears of rent, in manner and form as in the mises, or that he had mistaken the value, and said replication alleged; and this the plaintiff that the first distress was only of such a valprays may be inquired of by the country. ue, otherwise the second distress will be bad." Demurrer, for that the said sur-rejoinder takes Hutchins v. Chambers, 1 Burr. 590; Smith issue upon an immaterial issue, namely, whe- v. Goodwin. 4 B. & Adol. 413; Lear v. Calther the said goods and chattels therein men- decott, 4 Q. B. Rep. 123. The cases which tioned were of sufficient value to satisfy the have been relied on by the other side are dissaid arrears of rent; and for that the said tinguishable from the present; but, in those sur-rejoinder does not traverse, or confess and cases an older authority appears to have esavoid, the material allegations in the said re- caped the notice of the court,-that of Vasjoinder, namely, that the default lawfully per v. Edwards, 1 Salk. 248; S. C., Ld. abandoned and put an end to the said distress Raym. 719. In the judgment of the court and withdrew from the possession of the said it is there laid down, "If a distress dies in the goods and chattels, and did not sell or dispose pound, the action revives, for the distress failof the same, and that the said rent so dis- ed by the act of God; otherwise, where it trained for at the time of the making of the escapes, especially unless it be made to apsaid distress in the said second plea mention-pear that the plaintiff was in no default, which ed remained and was wholly unpaid and un-is not done in this case, for his own default

Common Pleas.-Dawson v. Cropp.

ought not to entitle him to another action, sor that he would so distrain in the first in nor subject the defendant to a double punish-stance." Montague: "Recapti lies for the ment." Moor 7, sect. 26; Cro. Eliz. 13, second distress." Browne: 66 If a man be in sect. 8; 2 Lutw. 1536. arrear of his rent at several days, and take a distress for one day at one time and for anTalfourd, Serj't, in reply. The case of other day at another time, he may; but it is Hudd v. Ravenor, already cited, has not been otherwise in the case at bar." The case of shaken by any of the authorities adduced by Wallace v. Sairn, Lutw. 1536, is an authorithe other side; and that decision was espe- ty for the same position, that a man cannot cially founded upon the case of Lear v. Ed- take a second distress for the same rent where monds, and Lingham v. Warren. [Cres- he might have taken sufficient at first; nor well, J.-In Hudd v. Ravenor, Richardson, shall we, by acting on these authorities, overJ. gives as a reason for his judgment, "that, rule Lingham v. Warren, or Hudd v. Ravefor any thing that appeared, the former dis-nor. In the former the plaintiff declared in tress may have been relinquished in kindness for the tenant." Such a reason would not be applicable to the present case; for here the replication avers, that "the defendant wrongfully and vexatiously, and without any cause or excuse, refused and neglected" to satisfy the arrears of rent.

Cur. ad. vult.

replevin; there was an avowry for rent in arrear, to which there was a plea in bar, that the defendant's testator for the same rent distrained goods and chattels of sufficient value to satisfy it. On demurrer this was held to be a bad plea, upon the ground that many cases are supposable in which the taking of sufficient distress might not produce a satisfaction of the rent, which is undoubtedly true. In Hudd v. Ravenor, the declaration was in replevin on avowry for rent in arrear; and the plea in bar alleged a former distress for the same rent, and that the defendant might thereby have paid the arrears of rent, &c., but neglected and omitted so to do, and wrong fully and vexatiously made a second distress for the same rent. That plea was held bad on the authority of Lear v. Edmonds. The judgment of Mr. Justice Richardson shews clearly the ground of the decision, namely, that the former distress might have been relinquished in kindness to the tenant, and that no issue could have been taken upon the words "neglected and omitted." In the present case, the replication goes much farther, and says that the defendant vexatiously, and without any cause or excuse, refused to satis

TINDAL, C. J., delivered the judgment of the court. After stating the pleadings, he proceeded: When the case was argued, it appeared somewhat difficult to reconcile all the decisions which were brought to our notice; we therefore took time to look into them, and we are now of opinion, that, upon these pleadings, our judgment must be for the plaintiff. The replication is a good answer to the plea; for, assuming that the rent remained due, not having been satisfied by the first distress,—and the case of Lear v. Edmonds certainly did go beyond that,-still, the landlord could not, under the circumstances stated in the replication, make a second distress. In Comyn's Digest, "Distress" A. 1, it is laid down, that "a man cannot take two distresses for the same rent; for it was his folly that he did not take sufficient at first." In that pas-fy the arrears of rent by means of the first sage it is assumed that he might have taken sufficient at first. In this replication it is averred that he did take sufficient at first. And Chief Baron Comyn refers to Moor, p. 7, which was cited in the argument, and to Lutwyche. p. 1536. The case in Moor is a strong authority for the present plaintiff. It is thus: a man distrained for 107. rent due at Michaelmas by resavatur, certain sheep which were not of the value of 40s., and he afterwards distrained for the residue, and the tenant made several replevins; the question was, if he could make an avowry. Montague, Hinde and Harris, say "you cannot, for the distress is not good; it is the folly of the les

distress. We do not, therefore, at all impugn that case by holding that this replication is good. It remains to be considered whether the rejoinder gives any sufficient answer to it. The rejoinder alleges, that the goods distrained in the first instance were not of sufficient value to satisfy the arrears, and that the defendant afterwards lawfully abandoned and put an end to the distress. If that could be read so as to make the sufficiency of the goods distrained the ground for abandoning it, the averment of insufficiency is material, and the sur-rejoinder traversing it is good; but, if it is not to be so read, the rejoinder is bad, by reason of its not showing any lawful

Common Pleas.—Wright v. Tallis, and another.

ground for relinquishing the first distress and taking a second, so as to answer the matters alleged in the replication. In either view, therefore, the plaintiff is entitled to judgment.

Judgment for the plaintiff.

Wright v. Tallis and an'r.-July 2, 1845.

COPYRIGHT—FRAUDULENT MISREPRESENTATION.

No action will lie for the piracy of a work fraudulently published as the work of another person than the author.

hereinafter mentioned, before the committing of the said grievances by the defendants, to wit, on &c., falsely, fraudulently, and deceitfully caused the said Robert Huish to compose and write the said book in the declaration mentioned for the plaintiff, and then falsely, fraudulently, and deceitfully published the Isaid work to the public, to wit, to the liege subjects of the Queen, as and for a translation by the said Robert Huish, of an original work written in the German language by the said fraudulently, and deceitfully caused to be Christopher Christian Sturm, and then falsely, printed upon, and published, with all and every the copies of the said book the followCASE for unlawfully printing and publishing, ing false, fraudulent, and deceitful title of and without the consent in writing of the plain- to such book; that is to say, "Evening Detiff, divers copies of a book entitled "Even-votions, or the Worship of God in Spirit and ing devotions, or the worship of God in Spir- in Truth for every day in the Year, from the it and in Truth, for every day in the year, German of C. C. Sturm" (meaning the said from the German of C. C. Sturm, author of Christopher Christian Sturm), "author of 'The Morning Devotions,"" in which book The Morning Devotions;' by Robert Huish, there was alleged to be a subsisting copyright, Esq., F. L. A. and H. Soc." And, also, then and the plaintiff was then stated to be the pro- falsely, fraudulently, and deceitfully caused to prietor of such copyright. Plea, that before be printed upon, and published, the following the writing, composing, and publishing of the false, fraudulent, and deceitful preface of and said book in the declaration mentioned, one to such book; that is to say, "The unpreceChristopher Christian Sturm, a foreigner, to dented patronage which The Morning Dewit, a German, had written and published, in votions' and 'The Contemplations on the Sufthe German language, divers books on reli- ferings of Christ,' by Sturm" (meaning the gious subjects, and had thereby obtained great said Christopher Christian Sturm), "have decelebrity as an author, and divers of the said servedly received from every class of readers, books had been translated into the English and their consequent incorporation with the language, and had been, and were much val- standard literature of this country, has operaned and esteemed by the liege subjects of the ted as a flattering encouragement to the pubQueen in this realm. And the defendants lisher of the above mentioned works to presay that the plaintiff, well knowing the premi- sent to the public a translation of The Evenses, employed a certain person, to wit, one ing Devotions for every day in the Year,' Robert Huish, to compose and write the said (meaning the said book in the declaration' book in the declaration mentioned, and the mentioned), "by the same inspired writer., plaintiff, also, first published the said book. To descant upon the merits of Sturm" (meanAnd the defendants say that the plaintiff ing the said Christopher Christian Sturm) wrongfully and injuriously intending to de-as a pious and moral author would, with the fraud and deceive the public, to wit, the liege knowledge which we possess of his works, be subjects of the Queen, and to cause the said superfluous. It will, therefore, be merely nesubjects to believe that the said book, in the cessary to state, that, in The Eevening Dedeclaration mentioned, was the translation of votions' will be found the same tone of holy an original book, written by the said Christo- and pious feeling, the same purity and delicapher Christian Sturm, and to cause the said cy of thought, and the same unalterable love liege subjects to purchase copies of the said of the beauties and excellences of the Christbook of and from the plaintiff, and to pay di-ian religion, by which all his other writing are vers large sums of money to the plaintiff for so eminently distinguished. With The such copies, under the belief that they were purchasing translations of an original work of the said Christopher Christian Sturm, and wrongfully intending to obtain great profits, by means of the false pretences and deceit,

Evening Devotions the entire works of Sturm" (meaning the said Christopher Christian Sturm), "with the exception of his sermons, may be said to be incorporated with our national literature; and it may be confidently

Common.eas.-Wright v. Tallis, and another.