majority">Alvey, J.,

delivered the opinion of the Court.

The declaration in this ease contains two counts; and in regard to the first of which it is rather difficult to determine whether, it was intended to be in trespass for an illegal distress, or in case, for an excessive distress. As intended for either form of action it is certainly very imperfectly drawn. The second count is for a direct injury done to the plaintiff’s wall, and is framed in trespass.

The case was tried upon the general issue plea, that the defendant did not commit the wrongs alleged.

At the trial below seven exceptions were taken, but only two or three of which are important to be decided on this appeal.

The plaintiff gave in evidence, in support of the first count in his declaration, the sub-lease to himself from the defendant, dated the'3d of May, 1869, of the premises, in respect of which the rent was alleged to be due, whereby the plaintiff agreed to pay the defendant the yearly rent of $36, accounting the same from the first of January, 1869, in equal instalments of $18 each, on the 1st of January and July respectively, in every year during the continuance of. the lease; the defendant reserving to himself the right of distress for any arrearages of the rent agreed to be paid. The plaintiff also gave in evidence certain distress proceedings, dated the 17th of January, 1871, taken by the defendant against the goods of the plaintiff, for the sum of $72, rent alleged to be then in arrear under the lease to the plaintiff; and also proved, by the constable to whom the distress warrant was directed, that the same had been levied; but neither the schedule of the goods taken, nor their valué, is made 'to appear. The consta*305ble also proved that after levying the distress, the plaintiff had paid the amount of rent claimed to be due, without making any objection to it.

The plaintiff further proved, for the purpose of showing that the distress had been taken for more than was actually due, that the defendant had rendered him an account of the rent in arrear, in which a credit of $25 had been given, and that he was entitled to such credit for money received by the defendant to his, the plaintiff’s use; thus reducing the amount of the rent claimed by the defendant, and for which he had taken the distress.

It is not claimed, nor pretended, by the plaintiff that no rent whatever was due for which distress could be taken. On the contrary, the point of grievance is, that distress was taken for more than was due, if proper credit had been given. Some rent, it is conceded, was due and in arrear.

Proceeding upon this theory of his rights, the plaintiff, by his first prayer, asked the Court to instruct the jury, which was done accordingly, that if they should find that the distress had been levied, as stated in the evidence, and that the defendant declared his purpose to remove the goods dis-trained, unless the rent claimed to be due was paid; and that the plaintiff did pay the amount of rent claimed, with the costs of distress; and should further find that the said sum of $72 was not due and in arrear from the plaintiff to the defendant for rent; then the plaintiff was entitled to recover, under the first count' in the declaration, such actual damage as the jury might find the plaintiff to have sustained.

On the other hand, the defendant prayed the Court to instruct the jury, which was refused, that if they should find that the defendant distrained for more rent than was really due and owing, and that such distress was made as testified to by the constable Hayne, and others, then it was legal, and the plaintiff was not entitled to recover under the first count of the declaration.

*306The question thus presented, on the pleading and evidence, is, whether the distress, taken for a larger sum than was due at the time, (assuming' such to be the case,) was legal, or whether it was void, rendering the defendant liable as for a trespass.

It will be observed that by the instruction given, the plaintiff became entitled to the verdict upon the finding by the jury of the fact that the distress had been made for $72, and that that precise amount was not due at the time. By showing the amount due to be less, however trifling less, than the amount for which the distress was levied, the plaintiff, under this instruction, became entitled to recover. This is clearly not justified by the law, as it is now well settled. The prayer of the defendant, as to the plaintiff’s right to recover under the first count of the declaration, should have been granted.

In the case of Taylor vs. Henniker, 12 Adol. & El., 488, (40 Eng. C. L. R., 105,) it was decided by the Queen’s Bench, notwithstanding some previous cases to the contrary, that a distress taken for more than was due was unlawful- in its inception, and that an action would lie at Common Law for such a wrong. But that decision came to be deliberately reviewed in the case of Tancred vs. Leyland, 16 Adol. & El., N. S., 680, (71 Eng. C. L. R,) and was overruled; and, in the last mentioned ease, it was decided that the simple fact of making a distress for an amount larger than that really due, and selling the goods under such claim, is not actionable. This case of Tanered vs. Leyland has been followed by several others, after very full discussion of the question.

In the case of Glynn vs. Thomas, in the Exch. Chamber, 11 Exch. Rep., 870, the declaration alleged that the plaintiff held certain premises as tenant to the defendant, and that the latter ■wrongfully distrained certain goods of the plaintiff, as a distress for an alleged amount of rent then dne; and that the defendant wrongfully remained in possession of such goods, under color of the distress, until the plaintiff was compelled to pay, and did pay, to the defendant the pretended arrears of *307rent and costs of the distress, in order to regain possession of the goods; whereas, in Luth, only a small part of the pretended arrears of rent was due. It was held, after much consideration, that this declaration disclosed no cause of action; for as the distress was lawful, the defendant was entitled to a tender of the amount really due, and upon his refusal to accept that sum, the plaintiff’s proper course was to replevy the goods. It was there said, however, to be clear law, as it undoubtedly is, that if the untrue claim had been followed by a sale of more of the goods taken than was sufficient to raise the amount of rent really in arrear, with legal charges, a sufficient cause of action would have arisen. In such case, the goods would not be subject to replevin after sale.

In reference to the taking and detention of the goods by the defendant, and the payment by the plaintiff of the amount of rent claimed to be due, in order to regain possession of his goods, the Court said : “ It is alleged, however, in the count before us, that the plaintiff was compelled to make payment, and did make it, in order to regain possession of his goods; and this allegation being taken to be true, we must assume now such a state of facts as would have proved it, if put in issue. But the facts necessary for that purpose would be merely that the plaintiff demanded the goods, and that the defendant refused to deliver them, unless the alleged arrears with the charges of the distress were paid, and that the payment was made in consequence. Still this would not make the demand extortionate, or the payment such as could be recovered back in this form of action, unless from these facts it followed that the detention of the goods became unlawful. Now as some rent was .due, the taking was lawful; and as the taking was lawful, so was the detention until the sum really due, -with enough to cover the lawful charges, was tendered.”

The declaration in the present case alleges that .the distress was maliciously made; but that can make no difference; for in the case of Stevenson vs. Newnham, 13 C. B., 297, an action against a landlord for distraining for more rent than was *308really due, and where a similar allegation of malice was made, the Court said that such allegation was wholly immaterial, for an act which does not amount to a legal injury cannot be actionable because it may be done with a bad motive or intent.

The cases of Tancred vs. Leyland and Glynn vs. Thomas have both been recently referred to and sanctioned 'by this Court, in the case of Jean vs. Spurrier, 35 Md., 110, where the question of the legality of a distress was involved.

There is but one other question of importance to be decided in this ease, and that arises under the sixth exception, and also on the defendant’s second prayer, contained in the seventh exception.

In regard to the alleged injury to the wall of the plaintiff, complained of as a trespass in the second count of .the declaration, the defendant offered to prove, in bar of the right of action therefor, that such wall was used by him in the erection of an adjoining building, in the manner testified to, under and by authority of an express parol agreement with the plaintiff; the plaintiff agreeing and directing that the wall should be used in the manner it was by the defendant. But this evidence was excluded, as being insufficient under the pleadings, to bar the right to recover for the alleged trespass, but was admitted in mitigation of damages.

We think the Court committed no error in ruling as it did in regard to this question. The case was tried on the general issue plea alone. If license had been specially pleaded, as must be done in actions of trespass when the defendant seeks to justify by the authority of the plaintiff, or those under whom he claims, (1 Chit. Pl., 491, 505,) the evidence offered would have been clearly admissible in bar of the right to recover. The right to maintain the plea of license by such evidence as was here offered, is fully sustained by the authorities; the Statute of Frauds in such case not applying. Crosby vs. Wadsworth, 6 East., 611; Carrington vs. Roots, 2 M. & Wels., 248; 2 Greenl. Ev., sec. 628,; Crane vs. Gough, 4 Md., *309316. But license from the plaintiff not having been specially pleaded, the evidence was inadmissible to defeat the action, under the general issue simply. It was properly admitted, however, in mitigation of damages.

(Decided 19th June, 1872.)

It follows, from what we have said in reference to the admissibility of this evidence, that the defendant’s second prayer was properly refused by the Court below.

The judgment will be reversed, and a new trial awarded.

Judgment reversed and new trial awarded.

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