Page:Halsbury Laws of England v1 1907.pdf/604

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Animals.

382 Sect.

3.

Distress

Damage Feasant.

No conenrrent remedies.

the owner to interfere and recover his beast (/). The distress must not only not be used, but nothing must be done to alter its state at the time it was taken, because the distrainor has no sort of property in it (g). To tie a horse to the pound to prevent it leaping out has been said to be a misuser and a conversion (li). It was even at one time said that cows must not be milked (?), but that statement was expressly negatived by the whole Court of King's Bench, on the ground that it was a case of necessity and for the benefit of the owner, otherwise the beasts would be spoiled (k).

832. The party w^ho

is aggrieved by cattle damaging his land choice of remedies; he may either bring an action for trespass, or distrain and the latter remedy has many conveniences, and avoids legal costs; but he cannot pursue both remedies at once. So long as the distress is detained or not accounted for, no action of trespass is maintainable (1) the distress is an answer to the action of trespass till it is ended without the plaintiff's default (m), as where the animals escape or die without his neglect, when the right to bring an action of trespass is revived (n).

has

a





Sub-Sect.

2.

Im]pounding the Distress,

Proper pound.

833. When animals have been seized for distress damage feasant they should be impounded as soon as possible. The proper pound is that of the lord of the manor, generally known as the "village pound," or in legal language as the ''manor pound" or common pound." Once there, the animals are said to be in custodid legis.

Public and private

834. It is, however, lawful for the distrainor to impound them upon his own land or premises, or upon the land of another with

pounds.

his consent (o), but they are then in the custody of the party, and not custodid legis, and are not really in a pound, with all its legal

m

(/) Smith V. Wrif/ht (1861), 6 H. & N. 821; 30 L. J. (EX.) 313. That is, not liable in an action for "rescue" or "pound breach." See p. 385,

lie is

^ost.

perishable articles (g) The law is the same in distress of inanimate chattels cannot be distrained because they cannot be returned in the same condition in which they were taken to tan raw hides is a conversion to cord a box of valuables to make it secure was said to be a trespass ab initio in Welsh v. Bell This certainly seems very doubtful (see note (k), infra), (1650), 1 Yentr. p. 36. See especially as it was permissible to polish armour to prevent it rusting. Yin. Abr. Distress, P. EoUe, Abr. Distress Com. Dig. Distress (D 6), where the authorities are referred to. (h) Yin. Abr. Distress, P. (i) Eolle, Abr. Distress; Gilbert on Distress, p. 65, note (d). {k) Bagshaiue v. Goivard (1660), Cro. (Jac.) 141. Lehain v. Philpott (1875), Vasper v. Ediuards (1701), 12 Mod. Eep. 661 (/) L. E. 10 Exch. 242 Boden v. Boscoe, [1894] 1 Q. B. 608. (to) Per Cleasby, B., in Lehain v. Philpott, supra, at p. 246. {n) Williams v. Price (1832), 3 B. & Ad. 695. (o) Co. Litt. 47 b. Lord Holt says {Vaspor v. Edwards, supra, at p. 664) that













whether the pound is common or not, it is the pound of him that uses it for that time, and the law does not require men to put the distress in the common pound, but only that it be put in a pound overt or be fed at the peril of the distrainor and taken care of by him and common pounds are either by custom, tenure, or agreement among the inhabitants of a vill or manor and not by common law.