February 26, 1868, $1,965; that Dunphy and Bentley, with Armitage as their bailiff, entered on said premises and took said amount "justly as for and in the name of a distress for the said rent so due;" that Dunphy and Bentley during said time were landlords of Ames of the premises; and that said amount remained due.

Morse answered on March 6, 1868, and denied every allegation of the complaint.

The plaintiffs then filed their demurrer to the answer of Dunphy, Bentley and Armitage for the following reasons: "No. 1. The allegation that rent was due defendants from Thomas P. Ames does not justify defendants in robbing the bank of plaintiffs. No. 2. There is no allegation in said complaint that plaintiffs are tenants of Dunphy and Bentley, or owe them rent. No. 3. Because Dunphy and Bentley have no right to take or distrain the money or other property of the plaintiffs for any rent that may be due them from any other persons. No. 4. Because under the laws of Montana Territory there is no provision for a distress for rent, and the common-law doctrine of distress is in conflict with the statutes of this Territory."

The demurrer was overruled in October, 1868, by the court, MUNSON, J., and plaintiffs excepted.

On October 29, 1868, the death of Aub was suggested, and the action was ordered to be continued in the name of the survivor Bohm.

The plaintiffs filed their replication to the answer of Dunphy, Bentley and Armitage on October 31, 1868, and denied the allegations thereof, and alleged that Bohm and Aub on October 25, 1867, rented their banking-house from Ames; that they had paid Ames the rent as soon as it was due; that Dunphy and Bentley were never the landlords of Bohm and Aub, and that there was no privity between them; that the lease from Dunphy and Bentley to Ames expired, and Dunphy and Bentley obtained a judgment for the recovery of said premises on November 7, 1867, under the forcible entry and detainer law of Montana; that an appeal was taken from said judgment, which was pending

at the time the money was taken from plaintiffs; that defendants did not impound said property so taken, as required by the common law of distraint; that defendants converted the same to their own use, and plaintiffs could not replevy it; and that defendants did not comply with said law of distraint.

The distress warrant was directed to Armitage, and, after reciting that Ames owed Dunphy and Bentley $1,937.50 for the rent of the premises, concluded as follows:

"Now, therefore, you are commanded to enter upon the said premises above described, and make distress according to law upon any personal property, money or effects which you may find upon the premises aforesaid, and, if the money is not paid, that you make sale according to law. "In witness whereof we have subscribed this warrant this 22d day of February, A. D. 1868.

"E. M. DUNPHY,

"D. A. BENTLEY."

The following return was indorsed on this warrant :

"HELENA, February 26, 1868.

"In pursuance of the within direction I entered upon the premises within named, and distrained upon nineteen hundred and thirty-five dollars ($1,935.00), and delivered the same to Dunphy & Bentley.

"J. ARMITAGE."

The action was tried in July, 1870, before SYMES, J., and the jury returned a verdict for plaintiffs.

The eighth instruction given by the court was as follows: "The fact that the defendants acted under advice of counsel can have no force in the case. If you believe, from the evidence, that it was the intention and purpose of defendants to take said money and appropriate it to the payment of their debt from Ames to Dunphy and Bentley, and not to hold it and give the plaintiffs an opportunity to replevy the same, the law implies that such act was willful, and you may find such exemplary damages as you consider just." The other facts appear in the opinion.

CHUMASERO & CHADWICK, for appellants.

By the common law all movable goods and chattels which might be found upon the premises, whether the goods of the tenant, under-tenant or other person, might be taken as a distress for rent. All the evidence introduced on the questions relating to respondent renting the premises from Ames, and that of privity between appellants and respondent, was immaterial, and tended to mislead the jury from the true issues. Taylor on. L. & T., § 583; Holt v. Johnson, 14 Johns. 425; Spencer v. McGowen, 13 Wend. 256; 1 Smith's Lead. Cas. 534, 535.

The case of Dunphy and Bentley v. Ames had been appealed to the district court. Under our statute there must be a trial de novo; the whole case is left to stand on the pleadings only. The answer of Ames shows a continuing tenancy. The court erred in allowing the proceedings in this case to be introduced in evidence.

The English courts hold that money, if it can be identified, is the subject of distress. The property in controversy is national currency, and each bill was numbered and lettered and could be identified.

Our statutes provide expressly that the common law of England, so far as it is applicable and of a general nature, shall be the law, etc. Acts 1865, 356.

The acts of the States, adopting the common law, fix the date of its existence, and generally adopt it as it existed when the acts were passed. Our courts have decided that the statutes of England, in amendment of the common law, are a part of it. 1 Kent's Com. 522-524; Patterson v. Winn, 5 Pet. 241.

The act 11 George II, ch. 19, changes what had been previously held to be the law, and declares: "That when the distress is for rent, an irregularity or unlawful act subsequently done by a party shall not render him a trespasser ab initio; but the party aggrieved by such unlawful act may recover for the damages sustained by such act." Sackrider v. McDonald, 10 Johns. 264.

The impounding of property taken as a distress, was for the purpose of keeping it safely. It was to be kept as a pledge; but a change was made by statute 51 Henry III, authorizing a sale in fifteen days. 3 Kent's Com. 474. If the property was not replevied in five days, the landlord had a right to sell. Stat. Wm. & M., ch. 5; 8 Anne, ch. 14. Respondents, on February 27th, commenced their action of trespass. On the 29th they commenced their action of replevin, and subsequently dismissed it. Respondents elected to bring trespass, and waived their right to replevin.

The court erred in its instructions on the question of exemplary damages. A mere willful and wrongful taking of property does not authorize a verdict for exemplary damages. Either malice, violence, oppression or wanton recklessness must mingle in the controversy. Kennedy v. N. M. R. R. Co., 36 Mo. 351; Honeseifer v. Shable, 31 id. 243; Freidenheit. v. Edmondson, 36 id. 226. When a party acts under the advice of counsel, it does away with the presumption of malice, and vindictive damages are not proper. Sedgw. on Dam. 460 (marg.); Thompson v. Mussey, 3 Greenl. 305; Stone v. Swift, 4 Pick. 393; Blunt v. Little, 3 Mason, 102; Commonwealth v. Bradford, 9 Metc. 268.

The only damages recoverable in this case would be the money taken with interest. Sedgw. on Dam. 550-553 (476 marg.). No special damages were claimed or proved.

The money taken was the property of Bohm & Aub. On the death of Aub the partnership was dissolved. The damages sworn to was the loss of the use of the money of the partnership to the partnership, which was not in existence. The administrator should have been made a party.

The rule "actio personalis moritur cum persona" is applicable. Broom's Leg. Max. 613; 1 Bouv. Law Dic. 64. In an action by personal representatives of a decedent, in respect of an injury to the personal estate of the decedent, the damages must be measured by the injury, and exemplary damages cannot be recovered. Sedgw. on Dam. 467 (marg).

VOL. I. 43.

E. W. & J. K. TOOLE, for respondent.

There is but one form of action for the enforcement of a right or redress of a wrong. Prac. Act, § 1. Distraint was the only remedy of the landlord at common law. He could not recover in debt or ejectment during tenancy, nor distrain for an uncertain demand. 1 Coke on Lit. 95, a; Taylor on L. & T. 564.

The statute gives new rights and remedies: forcible or unlawful detainer, assumpsit, contract and attachment. Taylor on L. & T. 525; Renwick v. Morris, 7 Hill, 575; Stafford v. Ingersoll, 3 Hill, 38. The appellants' demand was for so many dollars, and they took twenty-five per cent more than was due.

The authorities cited by appellant, as to proceedings under distress for rent, are under statute, and not common law. Smith v. Stewart, 6 Johns. 48. The relation of landlord and tenant must exist at the time of the distress. Notice to quit, suit for possession, appearance and judgment treats tenants as trespassers. 2 Coke on Lit. 144; Taylor on L. & T. §§ 488, 564, 565. At the time of the distress the tenant must be rightfully in possession and the landlord have a right to distrain. Respondent was a sub-tenant, had paid his rent and was not liable for rent. If liable to have property taken upon a distress, it should have been impounded. Bain v. Clark, 10 Johns. 424; 1 Smith's Lead. Cas. 219-221; 1 Coke on Lit. 152, 230; 2 Pars. on Cont. 481.

Appellants did not impound the money, but converted it to their own use and destroyed its identity.

We have adopted the common law of England applicable to this country. The right of distress for rent is inconsistent with the genius of our government and the rights and remedies afforded by law.

The sub-tenant never attorned to the landlord for rent and was not in arrears for rent. There is a difference between the right of a landlord to distrain for rent the property of persons not liable therefor found on the premises, and a conversion of that property by which claimant was deprived of his writ of replevin.