2. For selling, &c. Printed Copies. (g)

For that the plaintiff was the proprietor of the subsisting copyright in a book intituled And after the passing of the act of parliament passed in the sixth year of the reign of Queen Victoria, to amend the law of copyright, divers copies of the said book had been wrongfully, and without the consent of the plaintiff in writing, and contrary to the said statute, printed by A. B. [or "by a person to the plaintiff unknown "] for sale [or "imported for sale from parts beyond the seas into England"]; yet the defendant, after the passing of the said act, and without the consent in writing of the plaintiff, and contrary to the said act, sold divers copies of the said book, whereby the profits [conclude as in last form].

References to other Forms, &c.

For pirating a print, contrary to 8 Geo. 2, c. 13, s. 1, see, also, 7 Geo. 3, c. 38; 17 Geo. 3, c. 57; West v. Francis, 5 B. & Ald. 737; Brooks v. Cock, 3 Ad. & E. 138. See Moore v. Clarke, 9 M. & W. 622; Page v. Townsend, 5 Sim. 305; Martin v. Wright, 6 Sim. 297. [For infringing the copyright in a print by means of photography. Gambart v. Ball, 14 C. B. N. S. 306; Graves v. Ashford, L. R. 2 C. P. 410.] No action for the piracy of a print can be sustained unless the date of the first publication was engraved on the plates. See Brooks v. Cock, 3 Ad. & E. 138; Colnaghi v. Ward, 12 L. J. Q. B. 1; Avanzo v. Mudie, 10 Ex. 203. A knowledge of the print being spurious is not necessary. Gambart v. Sumner, 5 H. & N. 5; 29 L. J. Ex.

98).

For piracy of the model of a bust, see Gahagan v. Cooper, 3 Camp. 112. Piracy of dramatic literary property. Cumberland v. Planché, 1 Ad. & E. 580; Shepherd v. Conquest, 17 C. B. 427; 25 L. J. C. P. 127; Morton v. Copeland, 16 C. B. 517; Hatton v. Kean, 7 C. B. N. S. 268; 29 L. J. C. P. 20; Reade v. Conquest, 3 C. B. N. S. 755; 30 L. J. C. P. 209; Cumberland v. Copeland, 7 H. & N. 118; 31 L. J. Ex. 19, 353. Debt for penalties. Planché v. Braham, 8 C. & P. 68; Fitzball v. Brooke, 6 Q. B. 873.

Of designs for manufacturers. Millengen v. Picken, 1 C. B. 799; McCrea v. Holdsworth, 33 L. J. Q. B. 329; [L. R. 1 Q. B. 264.]

Of registered designs under 5 & 6 Vict. c. 100, see Harrison v. Taylor, 3 H. & N. 301; 4 Ib. 815; 27 L. J. Ex. 315; Heywood v. Potter, 1 El. & Bl. 439; Norton v. Nicholls, 28 L. J. Q. B. 225; [4 K. & J. 475.]

Under international copyright act. Wood v. Boosey, 36 L. J. Q. B. 103; [L. R. 3 Q. B. 223.]

CORPORATIONS.

OBS. See ante, "Commissioners." Corporation is included in the words " person or persons." Mayor of Hereford v. Morton, 15 L. T. N. S. 187; [Boyd v. The Croydon Ry. Co. 4 Bing. N. C. 669. So by statute, in Massachusetts, Genl. Sts. c. 3, § 7, div. 13.] A corporation is liable for a tort, if the act complained of is within the purpose of the corporation, and is committed in such a manner as to constitute an actionable wrong if done by an individual,

(g) Form, Wright v. Tallis, 1 C. B. 893; 14 L. J. C. P. 283.

OBS. Green v. London General Omnibus Co. [7 C. B. N. S. 290 ;] 29 L. J. C. P. 13; [Angell & Ames Corp. § 311, and cases cited; Ranger v. Great Western Ry. Co. 5 H. L. Cas. 72, 87; New York & New Haven R. R. v. Schuyler, 34 N. Y. 30, 50; Brokaw . New Jersey R. R. & Transp. Co. 3 Vroom, 328, 330; Atlanta & G. W. R. Co. v. Dunn, 19 Ohio St. 162; 1 Chitty Pl. 86, note (u), and cases cited.] So a corporation may be made responsible for the negligent or unskilful conduct of its servants in the execution of the ordinary work and business of the corporation, without proof that the work was ordered under the corporation seal. Scott v. Mayor &c. of Manchester, 1 H. & N. 59; 2 Ib. 204; 26 L. L. J. Ex. 132-406; [2 Kent, 284; Thayer v. Boston, 19 Pick. 516, 517. A railroad corporation is liable, to the same extent as an individual would be, for an injury done by its servant in the course of his employment. Moore v. Fitchburg R. R. Co. 4 Gray, 465; Hewitt v. Swift, 3 Allen, 420; Holmes v. Wakefield, 12 Allen, 580; 1 Chitty Pl. 86, note (u); Rounds v. Delaware, Lackawanna &c. R. R. Co. 5 N. Y. Sup. Ct. 475, 483. If the act of the servant is within the general scope of his employment, the master is equally liable, whether the act is wilful or merely negligent; Howe v. Newmarch, 12 Allen, 49; or even if it is contrary to an express order of the master. Philadelphia & Reading R. R. Co. v. Derby, 14 How. (U. S.) 468. Such a corporation is liable for an assault and battery committed by the conductor of one of its trains upon a passenger in seizing or attempting to seize his property to enforce payment of his fare. Ramsden v. Boston & Albany R. R. Co. 104 Mass. 117; 1 Chitty Pl. 92, note (q). And in other cases, corporations may be held responsible in actions for assault and battery. See Brokaw v. New Jersey R. R. & Transp. Co. 3 Vroom, 328; Hewitt v. Swift, 3 Allen, 420; St. Louis, A. & C. R. R. v. Dalby, 19 Ill. 353; Rounds v. Delaware, Lackawanna & Western R. R. Co. 5 N. Y. Sup. Ct. 475.] A corporate body may be liable for negligence of their servants, although there is no improper conduct on the part of the corporation. Mersey Docks & Harbor Board v. Gibbs, 35 L. J. Ex. 225; [11 H. L. Cas. 686; L. R. 1 H. L. 83; ante, 494, 495.] An action is maintainable against a corporation aggregate for a libel published by the order of the corporation, and in such an action it is not necessary to show that the defendants had any ill-will, or that they meant to injure the plaintiff. Whitfield v. South Eastern Ry. Co. 1 El., Bl. & El. 121; 27 L. J. Q. B. 229. See Stevens v. Midland Ry. Co. 10 Ex. 352; 23 L. J. Ex. 328; [Aldrich v. Press Printing Co. 9 Minn. 133; Philadelphia &c. R. R. Co. v. Quigley, 21 How. (U. S.) 202; Maynard . Firemen's Fund Ins. Co. 34 Cal. 48. So a corporation may be liable for malicious prosecution. Goodspeed v. East Haddam Bank, 22 Conn. 530; Vance v. Erie R. R. Co. 3 Vroom, 334; but see Owsley v. Montgomery R. R. Co. 37 Ala. 560. Coulter v. Dublin & Belfast Junction Ry. Co. Ir. L. T. Rep. 209; Carmichael v. Waterford & Limerick R. R. Co. 13 Ir. L. Rep. 313.] So a corporation may maintain an action for a libel. Metropolitan Saloon Omnibus Co. v. Hawkins, 4 H. & N. 87; 28 L. J. Ex. 201; [The Trenton Mut. Life & Fire Ins. Co. v. Perrine, 3 Zabr. 402.] So a trading corporation may be liable in trover. Giles v. Taff Vale Ry. Co. 2 El. & Bl. 831. [As to municipal corporations, it has been held that a private action cannot be maintained against a town, or other quasi corporation, for a neglect of corporate duty, unless such action be given by statute. Mower v. Leicester, 9 Mass. 247; Riddle v. Proprietors of Locks & Canals on Merrimac River, 7 Mass. 169, 187; Holman v. Townsend, 13 Met. 297, 300; Brady v. Lowell, 3 Cush. 124; Adams v. Wiscasset Bank, 1 Greenl. 361; Oliver v. Worcester, 102 Mass. 489, 496; Reed v. Belfast, 20 Maine, 248; Eastman v. Meredith, 36 N. H. 284; Commissioners of Hamilton Co. v. Mighels, 7 Ohio St. 109; Ward v. County of Hartford, 12 Conn. 404; Pray v. Jersey City, 32 N. J. 394; Freeholders v. Strader, 3 Harr. (N. J.) 108; Bigelow v. Randolph, 14 Gray, 541, 543; Dillon v. Munic. Corp. 716–723, §§ 761-765; 1 Chitty Pl. 86, note (y) and cases cited. In the above case of Bigelow v. Randolph, 14 Gray, 543, Mr. Justice Metcalf said: "This rule of law, however, is of limited application. It is applied in the case of towns only to the neglect or omission of a town to perform those duties which are imposed upon all towns, without their corporate assent, and exclusively for public purposes, and not to the neglect of those obligations which a town incurs when a special duty is imposed upon it, with its consent express or implied, or a special authority is

OBS. conferred on it, at its request. In the latter cases, a town is subject to the same liabilities, for the neglect of those special duties to which private corporations would be, if the same duties were imposed or the same authority conferred on them, including their liability for the wrongful neglect as well as the wrongful acts of their officers and agents." See, also, Conrad v. Ithaca, 16 N. Y. 158; Hafford v. New Bedford, 16 Gray, 297; Barry v. Lowell, 8 Allen, 127; Sawyer v. Northfield, 7 Cush. 494; Walcott v. Swampscott, 1 Allen, 101; Hyde v. Jamaica, 27 Vt. 443; Jones v. New Haven, 34 Conn. 1.]

See post, "Public Company."

DEATH BY ACCIDENT. See "Carriers," p. 491, "Negligence."

DECEIT. See "Fraud."

DETINUE. See "Trover."

DEFAMATION. See "Libel and Slander."

DILAPIDATIONS. See post, "Rector," "Landlord and Tenant,"

OBS.

DISTRESS FOR RENT, &c.

See Bullen on Distresses; Woodfall's Landlord and Tenant, by Cole. By the common law, a party making a distress for rent became a trespasser ab initio if he were guilty of any irregularity in conducting it, although his right to distrain was undisputed. The Six Carpenters' Case, 8 Co. 146; Bac. Abr. Trespass. B.; Dye . Leatherdale, 3 Wils. 20. This rule still prevails in the case of distress taken, damage feasant; Ib.; Wilder v. Speer, 8 Ad. & E. 547; but is annulled as to distresses for rent by 11 Geo. 2, c. 19, s. 19, which enacts that "where any distress shall be made for any kind of rent justly due, and any irregularity or unlawful act shall be afterwards done by the party distraining, or his agent, the distress shall not therefore be deemed unlawful, nor the party making it deemed a trespasser ab initio, but the party aggrieved by such wilful act or irregularity shall recover full satisfaction for the special damage he shall have sustained, and no more, in an action of trespass, or on the case, with full costs." Section 20 provides that tender of amends may be made. The object of the act was to limit the claim to damages for the specific injury received, and no more.

The correct practice in actions for irregular distresses is to make either the landlord alone, if he can be fixed (see Crabb v. Killick, 6 C. & P. 216), or the landlord and the broker defendants, and not to join appraisers, &c.; and if a plaintiff do join them, the judge will oblige him to make out his case by strict rule, and not allow questions to be put to a witness who has been cross-examined, or a witness to be called back with a view to fixing such appraisers, &c. Child v. Chamberlain, 6 C. & P. 213-484; 5 B. & Ad. 1049. In replevin against a broker, if it be proved that the landlord employs the attorney to defend the broker, that is sufficient evidence of the broker's authority to distrain in the absence of any written warrant. Duncan v. Meikleham, 3 C. & P. 172. A count in trover may and should be added where the validity of

OBS. the distress is denied, and then the plaintiff may without notice proceed or that count. See post, Obs. 506; 2 Štark. Ev. 283, 2d ed. When the landlord is liable in trover for the act of the bailiff, Lewis r. Read, 13 M. & W. 234. Trover lies where a party pays money to redeem his goods illegally distrained without any right of distress. Shipwick r. Blanchard, 6 T. R. 298. Frivolous actions of this kind are discouraged, and if the damages be under 408. the plaintiff will get no costs unless the judge certify. To justify levying and distress, there must be an actual tenancy; Anderson v. Midland Ry. Co. 30 L. J. Q. B. 94; How r. Scarott, 28 L. J. Ex. 325; and there must also be an ascertained rent. Garliner r. Williamson, 2 B. & Ad. 339; Neale v. Mackenzie, 1 M. & W. 763. And the rent must also be due; see Lee . Smith, 9 Ex. 665; 23 L. J. Ex. 198; Co. Litt. 161 a: or the tenant may resist the distress by force, and if the goods be taken, may rescue them. Ib. A mortgagor in possession may distrain for rent; Trent e. Hunt, 22 L. J. Ex. 318; and also his assignee. Snell r. Finch, 32 L. J. C. P. 117; 13 C. B. N. S. 651. See, also, Brown v. Metropolitan Ry. Co. 28 L. J. Q. B. 236. As to right to distrain under an agreement for a lease, Anderson . Midland Ry. Co. 30 L. J. Q. B. 94. A landlord by distraining for rent affirms the continuance of the tenancy up to the day when the rent so distrained for became due. Cotesworth v. Spokes, 30 L. J. C. P. 220. The landlord may distrain after the termination of the tenancy within six months of such termination, and during the continuance of the landlord's title, and during the possession of the tenant. 8 Anne, c. 14, ss. 6 and 7. But where a tenant at will died leaving rent in arrear, and the next day the landlord distrained on the premises which were then occupied by the deceased's servants, and his widow subsequently took possession the day after. and afterwards administered, it was held that the distress was not justified by the act, as not being made "during the possession of the tenant from whom the rent became due." Turner v. Barnes, 31 L. J. Q. B. 170. By 3 & 4 W. 4, c. 42, ss. 37, 38, executors and administrators of a lessor or landlord may distrain for rent due in the deceased's lifetime.

A tender of the rent before a distress is levied, although the warrant is issued, renders the execution of such distress wrongful ab initio. Bennett v. Bayes, 29 L. J. Ex. 224. A tender after levy and before impounding or sale makes the subsequent proceedings wrongful. Johnson v. Upham, 28 L. J. Q. B. 252; and see post, form 15.

ant "

"Before sunrising or after sunset no man may distrain but for damage feas The Mirrour of Justices, 100; Co. Litt. 142 a; Tutton e. Darke, 5 H. & N. 654; 29 L. J. Ex. 271. The rent is not due until midnight, and therefore a distress cannot be levied before the day following. Duppa . Mayo, 1 Saund. 285.

A landlord, under a warrant of distress, is not justified in breaking open an outer door. Brown v. Glen, 20 L. J. Q. B. 205; 16 Q. B. 254. Nor in opening a window fastened by means of a hasp. Hancock v. Austin, 32 L. J. C. P. 252. But he may open an outer door which is not fastened. Ryan . Shilcock, 21 L. J. Ex. 55; 7 Ex. 72. And if he enters in an unlawful way, he is a trespasser, and the value of the goods is the measure of the damages. Attack v. Bramwell, 32 L. J. Q. B. 146. The 11 Geo. 2, c. 19, s. 19, which enacts that distresses for rent shall not be unlawful for any irregularity in the disposition of them, does not apply where the original entry was unlawful. Ib. Where the person lawfully in possession leaves the distress for a temporary purpose, and is locked out, he may break open the outer door to obtain possession. Bannister v. Hyde, 29 L. J. Q. B. 141.

By 7 Anne, c. 12, s. 3, the goods of ambassadors and their domestic servants are exempt from distress. Goods in pawn are privileged from distress. Swire v. Leach, 34 L. J. C. P. 150; [18 C. B. N. S. 479.] Goods of a stranger on the premises to be manufactured or worked upon are not distrainable. Wood Clarke, 1 Cr. & J. 484; Gibson v. Ireson, 3 Q. B. 39; Brown e. Shevill, 2 Ad. & E. 138. See Reeve v. Whitmore, 32 L. J. Ch. 497. So, also, goods in the hands of a factor, or warehouseman. Ralli v. Scholefield, C. P. 36 L. J Gilman v. Elton, 3 B. & B. 75; Thompson v. Mashiter, 1 Bing. 283. So, also, fixtures attached to the freehold. Pitt v. Shew, 4 B. & Ald. 207; Dalton Whittem, 3 Q. B. 961; Hellawell v. Eastwood, 6 Ex. 309; 20 L. J. Ex. 153.

OBS. A landlord who gives a broker a general authority to distrain is liable equally with the broker. Lewis v. Read, 13 M. & W. 837; Gauntlett v. King, 3 C. B. N. S. 59; Hart v. Leach, 1 M. & W. 560. Even though the broker is guilty of an irregularity. Haseler v. Lemoyne, 28 L. J. C. P. 103; [5 C. B. N. S. 530.] See, also, an authorized agent. Bennett v. Bayes, 29 L. J. Ex. 224; [5 H. & N. 391.] A mere license to distrain does not entitle the landlord to distrain goods of a stranger. Reeve v. Whitmore, 32 L. J. Ch. 497.

1. For distraining, &c. where no Rent was due, to recover Double Value. (h)

For that the plaintiff was tenant to defendant of a messuage and premises, (i) at a rent payable by the plaintiff to the defendant; (k) and the defendant wrongfully, and contrary to the statute in that behalf, seized the goods of the plaintiff in the said messuage and premises, as a distress for rent pretended to be in arrear and due in respect of the said messuage and premises, and sold the same as such distress, whereas at the time of making such distress and sale of the said goods no such rent was due or in arrear. (1)

2. For taking an Excessive Distress.

OBS.- See form, &c. Yates v. Tearle, 6 Q. B. 283. This count was formerly framed on the statutes of Marlbridge, 52 H. 3, c. 4, when the landlord could not sell the distress; now, since 2 W. & M. c. 5, it would be proper to aver a

(h) See forms, &c. Yates v. Tearle, 6 Q. B. 282; Hoare v. Lee, 5 C. B. 754; 17 L. J. C. P. 196. By 2 W. & M. sess. 1, c. 5, s. 5, "in case any such distress and sale as aforesaid shall be made by virtue or color 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 person or persons distraining, or to him or them in whose names or right such distress shall be taken as aforesaid, that then the owner of such goods or chattels distrained and sold as aforesaid, his executors or administrators, shall and may by action of trespass, or upon the case to be brought against the person or persons so distraining, any or either of them, his or their executors or administrators, recover double of the value of the goods or chattels so distrained and sold, together with full costs of suit; and the jury ought to be directed to give such double value if they find for the plaintiff at all. Masters v. Farris, 1 C. B. 715. The distress is absolutely void where no rent was due when it was taken, and trespass or trover may be maintained.

(i) In general the tenancy should be shown to be subsisting when the grievance was committed. Rideley v. Ryle, 10 M. & W. 106. The venue being transitory, the situation of the premises need not be stated; but, if stated, should be stated correctly. Harris v. Cooke, 2 Moore, 587.

(k) In Salter v. Brunsden, 4 Mod. R. 231, and see Com. Dig. Distress, D., G., it was held, after verdict, that a declaration in trespass on 2 W. & M. c. 5, for making a colorable distress, need not state a demise in form, but that it is sufficient to aver that the goods were taken nomine districtionis; but, as the tenancy is a material and traversable allega

tion (Yates v. Tearle, 6 Q. B. 282), it would be safer to aver it as above. If inserted, it ought to be described correctly. Ireland v. Johnson, 1 Bing. N. C. 162.

(1) If it be doubtful whether some rent may not have been due, but the distress was for more rent than was in arrear and was excessive, it will be as well to insert counts adapted to such charges. See form 2. Add a count in trover if the existence of a tenancy, at a fixed rent, be doubtful, or if fixtures (Darby v. Harris, 1 Q. B. 895; Dalton v. Whitten, 3 Q. B. 961) or other goods not legally distrainable be taken. A distrainer is not liable for assuming to distrain fixtures unless he actually removes them. Beck v. Denbigh, 29 L. J. C. P. 273. The right to insist upon an illegality of a distress is not waived by bringing trover for fixtures severed and distrained. Dalton v. Whitten, ubi supra. In Hoare v. Lee, 5 C. B. 754; 17 L. J. C. P. 196, the court refused to allow a count for trespass, sed vid. the case. Distraining for a greater amount of rent than is due is not per se actionable. Tancred". Leyland, 16 Q. B. 669; 20 L. J. Q. B. 316; French v. Phillips, 1 H. & N. 564; 26 L. J. Ex. 82; Stevenson v. Newnham, 13 C. B. 297; 22 L. J. C. P. 110. See, also, Phillips v. Whitsed, 29 L. J. Q. B. 164. If a landlord distrains for more rent than is due, the tenant's proper course is to tender the amount really due; and if the landlord refuse to accept that sum to replevy the goods and try the disputed question of amount in an action of replevin. Glynn v. Thomas, 11 Ex. 870; 25 L. J. Ex. 125. See Lucas v. Tarleton, 27 L. J. Ex. 246; [3 H. & N. 116;] or if the landlord sells after such tender, the tenant may have his action on the case. See post, form 15.