Nargett against Nias
| Jurisdiction | England & Wales |
| Judgment Date | 21 January 1859 |
| Date | 21 January 1859 |
| Court | High Court |
English Reports Citation: 120 E.R. 974
IN THE COURT OF QUEEN'S BENCH AND EXCHEQUER CHAMBER
S. C. 28 L. J. Q. B. 143; 5 Jur. N. S. 198.
[4391 nargett against nias. Friday, January 21st, 1859. An action of trespass lies, as well as an action on the case, for distraining tools of trade, though not actually in use, if there be other unprivileged goods upon the premises, at the time of the distress, sufficient to satisfy the distress. [S. C. 28 L. J. Q. B. 143; 5 Jur. N. S. 198.] The declaration stated that defendant broke and entered the dwelling house of plaintiff, assaulted him, and seized, took, carried away and converted to his own use the goods and chattels of plaintiff, then being in the said house. Fifth plea : Not guilty (by statute). Issue thereon. On the trial, before Hill J., at the Middlesex Sittings after last Trinity Term, it appeared that the plaintiff, who was a labourer, occupied a cottage of the defendant as his tenant. The defendant distrained for rent in arrear, and seized, under such distress, a spade and fork of the plaintiff, being tolls used by him in his trade. It appeared, however, that they were not in actual use at the time of the distress. The jury found that there were other goods, not tools of trade, on the premises, sufficient to have satisfied the distress. A verdict was found for the plaintiff, leave being reserved to move to enter a verdict for the defendant. Blackburn, in last Michaelmas Term, obtained a rule to shew cause why the verdict should not be set aside, and a verdict entered for the defendant, "on the ground that trespass does not lie for taking tools of trade under a distress, they not being in actual use." Cuffe, in the same Term (a), shewed cause. Tools of [440] trade, though not in actual use at the time of the distress, are privileged sub modo, the condition being that there are other goods on the premises sufficient to satisfy the distress; Gorton v. Falkner (4 T. R. 565), Fentm v. Logan (9 Bing. 676). In Dames v. Aston (1 Com. B. 746) the same doctrine, both as to implements of husbandry and beasts of the plough, was recognised, though the replication which was founded upon it was held bad upon special demurrer on a technical ground. Now, trespass is the proper form of action for distraining goods absolutely privileged ; Brown v. Shevill (2 A. & E. 138). It is, therefore, the proper form of action for distraining goods which are privileged sub modo, if, at the time of the distress, the condition was fulfilled which makes them absolutely privileged. A distress of goods thus absolutely privileged is an act in the nature of a trespass : it is therefore not such a subsequent irregularity in the distress (a) Thursday, November 18th. Before Lord Campbell C.J., Wightman, Erie and HillJs. 1 EL & EL. 441. NARGETT V. N1AS 975 as is cured by stat. 11 G. 2, c. 19; Winterbourne v. Morgan (11 East, 395), Messing v. KenMe (2 Campb. 115). [Lord Campbell C.J. Trespass would not lie for arresting, under a legal warrant, a privileged person. I do not know if there is any analogy between such a case and a distress of privileged goods.] Blackburn, control. Aa there were unprivileged goods upon the premises sufficient to satisfy the distress...
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