delivered the opinion of the court (as to both cases), October 2d 1882.
Section 1 of the Act of March 21st 1772, recites the defect previously existing in the law for collecting rent and provides the remedy : Whereas the most ordinary and ready way for recovery of arrears of rent is by distress, and no provision hath yet been made by the laws of this province that such distress may be sold, and by the common law the same may be only declined as'pledges for enforcing the payment of such rent, and the persons distraining have little benefit thereby ; for the remedying whereof, Be it enneted, That when any goods or chattels shall be distrained for rent, and the tenant or owner of the goods shall not within five days next after such distress taken and notice thereof, replevy the same, the person distraining shall and may, with the sheriff, under sheriff, or any constable in the city or county where such distress shall be taken, cause the goods and chattels so distrained, to be appraised ; and after such appraisement, shall or may, after six days’ public notice, sell the said goods and chattels for the best price that can be obtained, for and towards satisfaction of the rent, and charges of such distress, appraisment and sale, leaving the overplus, if any, in the hands of the officer for the owner.
The third section provides that in case any distress and sale shall be made for rent pretended to be in arrear and due, when there is none, then the owner of the goods and chattels distrained and sold, shall and may, by action of trespass, or upon the case, recover double the value of the same from the person who made the distress.
A distress for more rent than is due, or an excessive distress, should not be confounded with a distress where no rent is in arrear and due. In the latter case, although the person dis-training is liable for double the value of the goods, the injured party may elect to bring an action at common law, and, if the circumstances warrant, recover exemplary damages exceeding the amount of the statutory penalty: Rees v. Emerick, 6 S. & R. 286. Making the distress, when the claim is wholly false, is a mere trespass. But when the landlord distrains for more rent than is due, or makes an excessive distress, he “ shall be grievously amerced for the excess of such distress.” He is liable to an action for distraining for more rent than is due: McElroy v. Dice, 17 Pa. St. 163. Trespass will not lie: McKinney v. Reader, 6 Watts 34. Case lies, though the goods distrained were of less value than the rent really due, for the defendant’s wrongful act was a legal cause of action, and if the plaintiff suffered no actual damage he may recover nominal: Taylor v. Henniker, 12 Ad. & El. 488.
The plaintiffs below in these actions, urging that the court *398did not rule that they were entitled to recover in trespass for an excessive distress, or for distraining for more rent than was due, adopt the opinion of the learned judge of the common pleas upon the motion for new trial as part of their argument. In that, it is shown that trespass will not lie for such wrong, but the judge thought he had properly instructed the jury. The charge related to the cases on trial, the jury ought to have acted upon it and probably did, for they were bound to take the law from the court. They were told that a landlord “ has no right to issue a landlord’s warrant for more ‘than the rent. He has no right to issue a warrant if there is no rent due. If he does, then by a section of this act he becomes liable to pay double the damages or value of the goods distrained and under the decision of the courts he is a trespasser ab initio.” It is unlikely that the jury thought that remark had no relation to the question before them, or that they saw the distinction between the case of a warrant for more than the rent, and of a warrant when there was no rent at all. But its application to the cases on trial was enforced by further saying,- “ The first question for the jury to determine is, was the warrant issued for the amount of rent due and was there an appraisement made and notice given as required by law A landlord is liable to an action if he distrains for more rent than is due, without proof of malice or want of probable cause.” And their attention was directed to the testimony respecting the amount of the rent. The plaintiff's first point was affirmed, in which it is asserted that Monahan had no right to levy on the plaintiffs’ goods for rent not due. And the defendants’ third point, “That the goods of Catharine McGrath on the leased premises were liable to be distrained and sold for the rent due by her father and it is of no consequence to her whether the distress was for all or more than the rent due; ” was answered thus: “We think the landlord had no legal right to distress for more rent than was due.” Whatever the court intended, there can be no doubt that the jury understood, that if the distress was for more than the rent, for that reason the defendants were trespassers from the beginning. . This is the direct and natural inference. It was nowhere said that the remarks touching this point were foreign to the issue. Of course, no one would infer that they were for the reprehensible purpose of inducing punitive damages, if the plaintiffs were entitled to recover for a trespass committed at a later stage in the proceedings. The instructions which constitute the first, second, third, fifth and seventh assignments were erroneous.
It is contended that plaintiffs’ first point ought to have been refused for another reason, to wit: That Monahan’s wife had no authority to reduce the rent, and that the contract, if made by her as alleged, was without consideration and void. Mrs. *399McGrath testified that she talked with Monahan. “ He came and he said $20, and he said he would send his wife to finish the agreement; and the week after Mrs. Monahan came and said $18 a month, and I agreed with her for $18 a month.” From that, if believed, authority could be inferred. The lease was for the term of one year, a.nd the agreement-to reduce the rent was within the term and while the tenants occupied the premises. This is not the case of an oral change in the contract before the beginning of the term, nor like an extension oí time or change of place for performance of a contract. McGrath threatened to leave. Had he. done so without Monahan’s assent, he would have continued to be bound for the rent of the whole term. We are of opinion that this contract, as proved by the plaintiffs, was nude.
After a distress has been lawfully made the landlord may commit an act in itself a trespass, and thereby become a trespasser ab initio. Notice and appraisement are essentials for the legality of a sale. If either of these be wanting, as prescribed by the statute, the sale is without authority, and the landlord is a trespasser from the beginning, as is a sheriff who sells goods he seized in execution upon notice of only five days, when the sale is invalid for want of authority to make it, trespass lies against the landlord: Kerr v. Sharpe, 14 S. & R. 399 ; Brisben v. Wilson, 60 Pa. St. 452. The omission to give notice to the tenant of the distress and the cause of it, does not make the landlord a trespasser, if the goods were replevied before sale : McKinney v. Reader, 6 Watts 34. Such omission is not trespass, and the replevin obviated the necessity of disposing of the goods by appraisement and sale. That the notice was duly served, and the appraisement made in proper time, are uncontroverted facts; but the plaintiffs allege that the inventory was defective. The court affirmed their second point, “ That if the jury believe that Monahan and Richards and Watson had the purpose to sell out all -the property of the plaintiffs without regard to whether the same paid the rent or not and in pursuance of that purpose levied upon their property respectively and failed to furnish a full and complete inventory of the goods levied upon and to appraise the same, but levied upon divers separate and distinct articles susceptible of weight and measurement in the lump or by the shelf, and so appraised and sold the same at a wanton and gross sacrifice, such acts of the defendants made them trespassers ab initio, or from the beginning, rendered them liable not only for the value of the goods so taken and disposed of, but for exemplary damages.” If the proceedings and sale were lawful, the purpose of the defendants was immaterial; only in case of an invalid sale would their purpose be pertinent with reference to the damages. A landlord is not required to weigh or *400measure all the goods in a store which he has distrained, and give a full and complete inventory of every pound of such as are usually sold by weight, and of every yard or quart of such as are usually sold by measure; nor need he detail every article or notion in a stock of millinery goods. The inventory should be so full and complete as to inform the tenant of the goods distrained and for which he may issue a writ in replevin. If the proceedings had been such that the landlord with the officer was authorized to sell the goods, they should have sold in the mode in which sheriffs’ or constables’ sales are legally conducted. Goods must be sold separately, or in parcels ; not the entire ’ stock, in the mass. They may be sold in such lots or parcels as shall be best calculated to bring the highest price. If sold in too large parcels, the injured party may have a remedy, but not in trespass. The eighth assignment is sustained.
The plaintiffs’ fourth point was: “That the defendant, Monahan, and the constable, having levied upon and sold the sowing machine, and then Monahan bought it in, he could not take advantage of his own wrong, by refusing to credit the amount for which it sold.” And the answer, “lie could not take advantage of his own wrong, but if he committed a mere mistake, he might correct it within a reasonable time.” This machine was not the property of either plaintiff, and the owner took it back same as if there had been no sale. Monahan did not move it. He had right to correct the mistake, as the court instructed, within a reasonable time, and under the evidence, that time was until the close of the sale.
In response to the plaintiffs’ fifth point, the court charged that if the defendants sold the goods for more rent than they claimed and was due, and legal costs, wantonly and to injure the plaintiffs, they were trespassers for so doing, and liable to exemplary damages, but if it was by oversight it would not be a case for exemplary damages. Understanding- this with the other instructions in the cause, it led the jury to believe the defendants were liable in trespass if the distress was for more rent than was due ; for exemplary damages if the distress and sale were purposely for more ; for the value of the goods, if by oversight. Even if the jury could have understood the point as referring to such goods only as were sold after enough had been realized to pay the rent and costs, it did not follow that the plaintiffs were entitled to exemplary damages. In that view the answer was incorrect, for if such sale was by oversight, the defendants were not liable in trespass for the value of the goods. The point should have been refused.
Prior to the Act of 1772 a landlord could only hold the distrained goods as a pledge for enforcing payment of the rent. That act provides for selling the goods, and has been held to be *401imperative on the landlord, which would seem to give to the distress the character of an execution : Quinn v. Wallace, 6 Whart. 452. Our statute is similar to the statute of William and Mary entitled, “An act for enabling the sale of goods distrained -for rent in case the rent be not paid within a reasonable time.” Under that act it was first decided, following the common law rule, that a tender after impounding availed nothing. But the only object of the authority given by law to distrain and sell the goods, being to procure payment of the rent, the hardship and injustice of allowing the landlord to refuse payment of rent and expenses before sale, and nevertheless proceed to sell the goods after tender of payment, was so great that such proceeding was deemed an abuse of the aiithority given to him by law, for which he was liable in an action on the case. It has been settled that, upon an equitable construction of the statute of William and Mary a landlord ought not to sell goods after a tender of the rent and costs made at any time within five days, and that a sale after such tender is illegal: Johnson v. Upham, 2 El. & El. 250.
Here no tender was made within the five days, nor before the sale was begun. A good tender before the sale would have ended the right to sell. The Act of 1772 was passed for the benefit of the landlord, yet in some respects it is for the benefit of the tenant. It being made the duty of the party distraining to sell the goods distrained, the goods, instead of being taken as a mere pledge, are to be regarded more properly as taken in execution, because similar to that of an execution; that is, a sale after six days’ public notice, the proceeds applied to the payment of the rent or debt, and the costs or charges, and the surplus, if any, to be paid to the owner of the goods: Quinn v. Wallace, supra. A sale upon a landlord’s warrant should be governed by like principles as a sale upon execution to collect a judgment. Only so much should be sold as will bring the amount required. When sufficient is realized the sale should stop. The property may be of such nature that it is impracticable to sell for the exact amount of the rent and charges, and in selling to make enough, there is likely to be an overplus. This is recognized by the law, and if the person selling acted honestly and with reasonable discretion, he will not be liable for the excessive sale. A tenant ought to be permitted to pay the money necessary to satisfy the warrant, whenever he can, with the same effect as if the money were made by sale of his goods. The chief object of the statute is to enable the landlord to collect his rent, not to sacrifice his tenant’s property. After part of the goods was sold the plaintiffs tendered a sum of money. If that sum was less than the real balance, after correction of the mistake in selling the sewing machine, and before renewing the *402sale the defendants proposed to make the correction, wbicli the plaintiffs refused, the tender was insufficient. Then, both parties knew that the machine was wrongfully sold, that the mistake could be rectified without harm to either of them or the owner, and the landlord had the right to treat it as if not sold. Upon the assumption that, the tender was for the full amount of the rent and charges not covered by the sales already made, the court ruled that the landlord- was liable for the value of the goods afterwards sold, notwithstanding the proceedings before the tender were legal and regular. We are not convinced that there was error in such ruling, and the fourth, sixth and ninth assignments are not sustained.
Judgment reversed and venire, facias de novo awarded.