James Thomas, Gent., one, Company v Harries, Lewis, and Davies
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1840 |
| Date | 01 January 1840 |
| Court | Court of Common Pleas |
English Reports Citation: 133 E.R. 511
IN THE COURT OF COMMON PLEAS
S. C. 1 Scott, N. R. 523; 9 L. J. C. P. 308; 4 Jur. 723. Commented on, Johnson v. Upham, 1859, 2 El. & El. 262. Distinguished, Green v. Duckett, 1883, 11 Q. B. D. 278.
james thomas, gent., one, &c. v. haeries, lewis, and davies. 1840. [S. C. 1 Scott, N. R. 524; 9 L. J. C. P. 308; 4 Jur. 723. Commented on, Johnson v. Upham, 1859, 2 El. & El. 262. Distinguished, Green v. Duckett, 1883, 11 Q. B. D. 278.] Cattle being distrained, the distrainor leaves a note, stating their number, with the distrainee, and on the following morning delivers to the distrainee a notice of distress, in which he states that he has distrained upon the cattle, and has "impounded them in the place or places hereunder mentioned," which notice concludes thus, " An inventory of the cattle, &c., distrained upon, and the same are impounded upon the premises:" Held, that the impounding was complete as against a tender subsequent to the notice; hsesitantibus Bosanquet and Erskine JJ., Maule J. dissentiente. Replevin, for cattle and horses taken on the 30th September 1839, in the parish of Llandilofaur, in the county of Carmarthen, in a close called Caecarreg. The defendant Harries avowed, and the defendants Lewis and Davies, as his.bailiffs, made cognizance, in the form given by 11 G. 2^ c. 19, s. 22, for 751. for half-year's rent due on the 29th of September 1839, upon a demise to Evan Thomas, averring that the distress was taken within six calendar months after the 29th of September, and during the continuance of the title of Harries, and the possession of the plaintiff. Plea in bar: that after the taking of the said cattle and horses in the said close, in which, &c., and before the impounding of the same, to wit, on the same day and year in the said declaration mentioned, the plaintiff tendered and offered to pay the defendant Lewis, then being the bailiff of the defendant Harris, and by him duly authorized to receive the said rent, and to make the said distress, the said sum of 751. so due for rent, as in the said avowry and cognizance mentioned, together [696] with a certain other sum of money, to wit, 11. 13s., for the costs and expenses of the taking of the said distress, the said last mentioned sum then being reasonable and sufficient for the costs and expenses in that behalf, which several sums of money the defendant Lewis then wholly refused to accept from the plaintiff, and afterwards unjustly detained the said cattle and horses against sureties and pledges until, &c. modo et forma. Verification. Replication, that the plaintiff did not, before the impounding of the said cattle and horses, tender or offer to pay the defendant Lewis the said sum of 751. so due for (a)1 Supra, 690 (c). (of And see Moon v. Raphael, 7 C. & P. 115. 512 THOMAS V. HARRIES 1 MAN. & G. 697. rent, as in the said avowry and cognizance mentioned, together with a reasonable and sufficient sum for the costs and expenses of the taking of the said distress, modo et forma-concluding to the country. . At the trial before Maule J., at the last Spring assizes for the county of Carmarthen, the following facts appeared:-Evan TJiomas, who was the plaintiffs brother, had from the death of his father, about ten years since, occupied as tenant from year to year to the defendant Harries, a farm called -Dolegleision, of which the close called Caecarreg is parcel, at the rent of 1501. payable, half-yearly at Lady-day and Michaelmas. Before Lady-day 1839, notice was'given to Evan Thomas to determine the tenancy at Michaelmas. On Monday, 30th September, the defendant Davies, accompanied by one James, went to Dolegleision to demand possession and the half year's rent, which had accrued on the previous day. Evan Thomas refused to give up possession, until he had reaped his' corn crop. Davies then distrained by putting his hand upon a bullock in Caecarreg. He then made a list of the articles, and delivered it to Mrs. Thomas at the farm-house. The next morning, the 1st of October, he delivered to the tenant the following notice :- "Take notice, that I have, this day, for, and on behalf [697] of your landlord, John Hill Harries, Esq., distrained upon the several goods, cattle, chattels, and effects hereinafter particularised, and have impounded them in the place or places hereunder also mentioned, for the sum of 751. being rent and arrears of rent due from you to him at Michaelmas last, for all that messuage, tenement, farm, and lands, with the appurtenances which you hold under him, situate, lying, and being in the parish of Llandilofaur, in the county of Carmarthen; and unless you pay the said rent due, together with the costs and charges of distraining for the same, or replevy the same goods, cattle, chattels, and effects mentioned in the said inventory, I shall, at the expiration of five days from the date hereof, make sale thereof, according to the directions of the act of Parliament.-Yours, &c. " J. davies." Dated, the 30th day of September 1839. " An inventory of the goods, cattle, chattels, and effects distrained upon; and the same are impounded on the premises. " Six heifers, one bull, four cows, six bullocks, three horses." Davies remained on the premises until the 2d of October, when he was relieved by one Hughes, who continued there till the 3d. On the 2d the goods were replevied. On the evening of the 1st of October, 751. was. tendered to Lewis with 11. 13s. for the costs of the distress, which Lewis refused to accept, requiring 41. 10s. for the costs. For the defendant it was contended that the tender came too late, and that what had taken place on the 30th of September...
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