faction of the court having cognizance of the case that the subse- Chap. VI. quent bill of sale was bonâ fide given for the purpose of correcting some material error in the prior bill of sale, and not for the purpose of evading the Act.

A bill of sale given in consideration of any sum under £30 is Bill of Sale void (p).

under £30 void.

The measure of damages for the conversion of a chattel where Damages. no special damage is proved, is the value of a chattel at the time of its conversion. Under ordinary circumstances the direction to the jury would simply be to ascertain the value of the goods at the time of the conversion, and in case the plaintiff could, by going into the market, have purchased the goods of the like quality and description, the price at which that would have been done would be the true measure of damages.

Where however the plaintiff has made a bond fide contract for the sale of the goods which have been converted, the measure of damages would be the contract sale price. Thus the plaintiff purchased champagne lying at the defendants' wharf at 14s. per dozen, and resold it at 24s. to the captain of a ship about to leave England. The defendants refused to deliver the wine, and the plaintiff was unable to fulfil his contract, champagne of a similar quality not being procurable in the market. The defendants had no knowledge of the sale, or of the purpose for which the plaintiff required delivery of the champagne. In an action for the conversion, it was held that the plaintiff was entitled as damages, to the sum for which he had contracted to sell the champagne (4). So where the plaintiff having bought some sheep of the defendant on credit left them in the defendant's custody. Without any default on the part of the plaintiff, the defendant sold the sheep. It was held that the measure of damages was not the value of the sheep, but the loss the plaintiff sustained by not having the sheep delivered to him at the price agreed upon (r).

Whether notice is or is not necessary in an action for conver

By s. 20

(p) S. 12, Amending Act. of the Principal Act it was enacted that, chattels comprised in a duly registered bill of sale were not to be deemed to be in the possession, order or disposition of the grantor of the bill of sale, within the meaning of the Bankruptcy Act, 1869. This enactment however is expressly

repealed by s. 15 of the Amending Act.
(q) France v. Gaudet, L. R. 6 Q. B.
199; 40 L. J. Q. B. 121; Read v. Fair-
banks, per Cresswell, J., 22 L. J. C. P.
at p. 208.

(r) Chinery v. Viall, 5 H. & N. 288;
29 L. J. Ex. 180.

Chap. VI. sion, in order to enable the plaintiff to recover special damage which cannot form part of the actual present value of the things converted, as in the case of the withholding of the tools of a man's trade, in which damage arising from the deprivation of his property is not, and apparently cannot be fixed at the time of the conversion of the tools, is doubtful (s).

Nominal damages.

Where a person who has wrongfully converted property will not produce it, it shall be presumed against him to be of the best description. Thus where, in an action for the conversion of a jewel which the defendant failed to produce, Pratt, C. J., directed the jury, after receiving evidence as to the value of a jewel of the finest water, that unless the defendant did produce the jewel and show it not to be of the finest water, they should presume the strongest against him, and make the value of the best jewels the measure of damages, which they accordingly did (t).

In some instances, though there is proof of a conversion, only nominal damages will be given. Thus A. deposited a dock warrant for brandies with B., as a security for a loan which was to be repaid on January 29, or in default the brandies were to be forfeited. Before the day of payment arrived A. became bankrupt. On January 28, B. agreed for the sale of the brandies to C., and on the 29th delivered to him the warrant, C. taking possession of the brandies on the 30th. It was held in an action for trover against B., that though there had been a wrongful conversion, yet that the measure of damages for which B. was liable, was not the full value of the goods, but the damage which A. had sustained through the premature sale, which as there was no intention on his part to redeem the pledge, was merely nominal (u).

(s) France v. Gaudet, supra, at p. 204 (L. R.); see Bodley v. Reynolds, 8 Q. B. 779; Wood v. Bell, 5 E. & B. 772; 25 L. J. Q. B. 148.

(t) Armory v. Delamirie, 1 Str. 504; 1 Sin. L. C'.

(u) Johnson v. Stear, 15 C. B. N. S.

330; 33 L. J. C. P. 130; see Brierley v. Kendall, 17 Q. B. 937; 21 L. J. Q. B. 161; Hiort v. L. & N. W. Rail. Co., 4 Ex. D. 188; 48 L. J. Ex. 545; Mulliner v. Florence, 3 Q. B. D. 484; Johnson v. Lanc. & York. Rail. Co., 3 C. P. D. 499

CHAPTER VII.

DETINUE.-WRONGFUL DISTRESS.-DISTRESS DAMAGE FEASANT.

REPLEVIN.

SECTION I.-DETINUE.

Chap. VII. AN action lies for the specific recovery of personal chattels Detinuewrongfully detained from the person entitled to the possession of what it is. them, and also for damages occasioned by the wrongful detainer (a). The plaintiff, to maintain an action for detinue, must have the right to the immediate possession of the chattel at the time of the commencing the action, arising out of an absolute or a special property, and the chattel must be in the possession, either actually or constructively, of the person who is alleged to be guilty of the wrongful detainer (b).

As the injurious act in an action for detinue is the wrongful detention of the goods and not the original taking or obtaining the possession, it is immaterial whether they were obtained by the defendant by lawful means, as by a bailment or finding, or by a wrongful act, as by a trespass or conversion (c).

An action for detinue will only lie for some specific article. Thus it will not lie for a sum of money or a quantity of corn, unless they have been ear-marked from other property of the same kind, as by being in a bag or sack (d). Title-deeds (e), letters (ƒ), and railway debentures (g), may be recovered in detinue.

A person having the goods of another in his possession, is not by reason thereof bound to seek out the owner and send them to

(a) See form under Rules Supreme Court, 1883, Appendix C, s. vi. No. 2. (b) Latler v. White, L. R. 5 H. L. 578.

(e) Bullen & Leake, Pleading, 2nd ed. p. 272.

(d) 3 Black. Com. 152.

(e) Newton v. Beck, 27 L. J. Ex. 272; 3 H. & N. 220; Plant v. Cotterell, 29 L.

J. Ex. 198.

(ƒ) Oliver v. Oliver, 11 C. B. N. S.

139; 31 L. J. C. P. 4. The right of
property in letters is in the receiver or
person to whom they are addressed, but
he has no right to publish them without
the authority of the writer, or if he is
dead without the permission of his
executor or administrator. See Watson
v. Maclean, E. B. & E. 77; Hopkinson
v. Ld. Burleigh, L. R. 2 Ch. 447.

(g) Barton v. Gainer, 3 H. & N. 387;
27 L. J. Ex. 390.

L

Chap. VII. him, but the owner must come for them (h); as it may happen that, although the property in them may be in one man, yet the detention of them by another is perfectly justifiable (i).

2 & 3 Vict. c. 71, s. 40,

Distress-what

it is.

What constitutes illegal distress.

Actual demise necessary.

Double value recoverable

The usual evidence of the detention is, that the defendant, having the possession or control over the goods, does not deliver them to the plaintiff when demanded; the defendant cannot, however, excuse himself by reason of his having lost the possession by reason of his own wrongful act, as by having wrongfully sold them (), or carelessly lost them (1).

By the Metropolitan Police Act, 2 & 3 Vict. c. 71, s. 40, metropolitan police magistrates have a summary jurisdiction to order the delivery up of goods detained and to adjudicate upon liens upon them, where the value of the goods is not greater than £15. A person who has applied for an order under this statute, which, after inquiry, has been refused, is not precluded by having taken these proceedings from bringing an action for the conversion of the goods (m).

Where the goods have been re-delivered, the jury may confine their assessment to the damages for the detention (»).

SECTION II.-WRONGFUL DISTRESS.

Distress for rent in arrear is the power conferred upon a landlord, by which he can seize the goods and chattels of his tenant for non-payment of rent.

A distress may be wrongful, either because it is illegal, excessive, or irregular.

A distress is illegal when no rent is due, or after tender of the rent due, or when the distress is not levied between sunrise and sunset (o), or when things are distrained which are privileged from distress such as fixtures, or implements of trade, if other sufficient distress can be found (p).

A landlord cannot distrain unless there is an actual demise at a specific rent (q).

By 2 W. & M. c. 5 (an Act for enabling the sale of goods

(h) Clements v. Flight, 16 M & W. 42.
(i) Clossman v. While, 7 C. B. 55.
(k) Jones v. Dowle, 9 M. & W. 19.
(1) Reeve v. Palmer, 5 C. B. N. S. 84;
28 L. J. C. P. 168.

(m) Dover v. Child, 1 Ex. D. 172.
(n) Williams v. Archer, 5 C. B. 318;
Crossfield v. Such, 8 Ex. 159.

(o) Tutton v. Darke, 5 H. & N. 654;

29 L. J. Ex. 271.

(p) Nargett v. Nias, 1 E. & E. 439; 28 L. J. Q. B. 143.

(q) Dunk v. Hunter, 5 B. & A. 322; see Pollitt v. Forest, 11 Q. B. 949; Yeoman v. Ellison, L. R. 2 C. P. 681; Hancock v. Austin, 14 C. B. N. S. 634; 32 L. J. C. P. 252.

where no rent due by 2 W. & M. c. 5, s. 5.

distrained for rent), s. 5, it is enacted that in case any such Chap. VII. distress and sale as aforesaid shall be made by virtue or colour of this present Act, for rent pretended to be in arrear and due, where in truth no rent is in arrear or due to the persons distraining, such distress shall be taken as aforesaid, then the owner of such goods or chattels distrained as aforesaid, his executors or administrators, shall recover against the person so distraining, his executors or administrators, double of the value of his goods and chattels, so distrained and sold, together with full costs of suit (r).

Rent may be made payable in advance, so as to entitle the Rent payable landlord to distrain for it at the beginning instead of the end of in advance. each quarter (s).

Tender before the distress makes the distress wrongful; tender Tender of after the distress but before impounding makes the detainer and rent not the taking wrongful; tender after the impounding makes neither the taking nor the detainer wrongful, for then it comes too late (t). A tender by the tenant of the rent due and costs, to the person distraining within five days (u) after the distress is taken and before sale, though after the distress has been impounded, in accordance with 11 Geo. 2, c. 19, s. 10, is a good tender (x). The tender for rent need not be made to the broker who distrains; if made to the landlord, a subsequent detainer is wrongful (y). The man left in possession by the broker or landlord, has no implied authority to receive rent (2). A tender of rent without expenses, after a warrant of distress is delivered to, not before it is executed by a broker, is a good tender (a).

A landlord or his bailiff cannot lawfully break open a gate Mode of disor break down inclosures, or force open the outer door or training. window of any building or dwelling-house in order to make a distress (b). An entry to make a distress through an open window is lawful (c); and a forcible re-entry by breaking the outer door is justifiable under a warrant of distress, where the party holding the warrant has been forcibly turned out of possession (d).

(r) Master v. Ferris, 1 C. B. 715. (s) Lee v. Smith, 9 Ex. 665.

(t) Per Ld. Coke, Six Carpenters' Case, 8 Co. Rep. 147a; see West v. Nibbs, 4 C. B. 172; Ladd v. Thomas, 12 A. & E. 117; Loring v. Warburton, E. B. & E. 507; 28 L. J. Q. B. 31.

(u) Under 2 W. & M. c. 5, s. 2.

(x) Johnson v. Upham, 2 E. & E. 250; 28 L. J. Q. B. 252.

(y) Boulton v. Reynolds, 2 E. & E. 369; 29 L. J. Q. B. 11.

(z) Bennett v. Laycs, 5 H. & N. 391; 29 L. J. Ex. 224.

(a) Brown v. Glenn, 16 Q. B. 254; 20 L. J. Q. B. 205.

(b) See Attack v. Bramwell, 32 L. J. Q. B. 146; 3 B. & S. 520; Nash v. Lucas, L. R. 2 Q. B. 590; Hancock v. Austin, 14 C. B. N. S. 634; 32 L. J. C. P. 252. (c) Tutton v. Darke, 29 L. J. Ex. 271. (d) Eagleton v. Gutteridge, 11 M. & W. 465; 12 L. J. Ex. 359.