Field v Mitchell
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1806 |
| Date | 01 January 1806 |
| Court | High Court |
English Reports Citation: 170 E.R. 833
IN THE COURTS OF KING'S BENCH AND COMMON PLEAS.
field v. mitchell. (Case will not lie for taking an excessive distress, where one thing only could be taken, though greatly exceeding in value the amount of the distress. Express malice not necessary to be proved to support the defendant The broker who made the distress is not an admissible witness for the defendant unless released ) This was an action on the case for taking an excessive distress. The case in evidence on the part of the plaintiff was, That he was tenant to the defendant of certain premises , that seven guineas only being in arrear, the distress waa made by direction of the defendant, and goods taken, which were valued by the plaintiff's witness at £30, but which in fact sold for £10 only. These facts being proved, Sir V. Gibbs, for the defendant, contended, That the plaintiff upon the evidence given, and the facts proved as above stated, should be nonsuited ; he contended, that to support the action, the taking must appear to be malicious, or the plaintiff could not be entitled to recover. That all [72] the old cases to be met with in the books, in stating in what instances a plaintiff was entitled to recover in this action on the ground of such excess was, where there was a great disproportion, as an ox distrained for a penny, which is the case put in the books ò that here the goods had sold but for a few pounds beyond the sum for which the distress was made, out of which the expences were to be deducted ; that it was N. P. I.-27 834 DANIEL V. PITT BSP. 71. impossible to judge with sufficient accuracy, as to what things so taken would produce : if taken as a distress under auy circumstances, they sold to a certain, disadvantage, and it would therefore be extremely hard to subject a party to an action for taking goods, where so trifling an excess in value only appeared. Lord BUenborough.-There is a distinction between the cases, where there is but one thing which can be distrained, and where there are many, and so the distress is divisible. If there is but one thing which can be taken, so that it must be taken, or the party must go without his distress, for taking it no action lies, though...
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