Page:Halsbury Laws of England v1 1907.pdf/605

 — Part

III.

Owners of Animals.

Liability of

383

consequences

Sect.

public

Distress

This distinction between a private pound and a {p). pound is of some importance, because before cattle are impounded and in custodid legis the owner may tender amends and demand them back, and if an adequate tender is refused the distress but after they are in custodid legis the tender comes is wrongful (q) If, therefore, the owner can find them upon the too late (/')• premises of the distrainor, in a private pound, or anywhere before they reach the common pound, and tenders adequate compensation, that forms a good plea in bar to an avowry of distress damage feasant (s). But if they reach the common pound, they are detained by the pound-keeper till satisfaction is accepted and certain charges paid, or till the owner bails them and replevies {t), or till they are sold under modern statutory powers to pay for their keep (u). The fact that the distrainor puts the beasts into the common pound does not relieve him from his duty to see that they are put into a fit and safe place, so that if the pound is too small for the number of cattle, or deep in mud, so that they are injured, he is liable for the

tlamage (x). At the present day the village pound has fallen into disuse owing to the great increase of fencing and the rise of other important industries besides agriculture, but the remedy of distraining and keeping the cattle on private premises is often resorted to and is really sufiicient, so that it is well to remember the above distinction, and to accept the tender as soon as it is made, if it is sufficient. No distress of cattle may be driven out of the hundred where it is taken except to a pound overt within the same shire, nor above three miles from where it is taken nor may cattle distrained at one time be impounded in several places, under pain of every person offending forfeiting for every such offence one hundred shillings and treble damages and only fourpence may be taken for the poundage of any one whole distress {y).



(p)

Browne

v. Poiuell (1827),

4 Bing. 230, per Best, C.J., at p. 232



Green v.

Buckett (1883), 11 Q. B. D. 275. {q)

Ibid.

(V)

PilMngton's Case (1601), 5 Co. Eep. 76.

(s)

Broiune v. Powell, supra.

Eeplevin is an action for goods unlawfully taken it means the redelivery upon a pledge (replegiare) to bring an action to test the right to the taking. replevin is the subsequent action. Eeplev}^ is the redelivery of the goods Taking in ivithernam was carrying off other goods where the sheriff could not find those distrained, in which case he was to take sufficient goods of the person distraining. In reading the older cases upon the subject it is absolutely necessary to understand the technical language of the action. The defendant is the avowant, the avoiury is his defence by way of justification of the distress it)





in his own right, and cognisance in the right and under the authority of another. The plea in bar is the equivalent of the plaintiff's replication in an ordinary The registrar of the county court is now substituted for the sheriff, action. and all proceedings in replevin are regulated by the County Courts Act, 1888 The action may be brought in the High 137. (51 & 52 Vict. c. 43), ss. 133 Court or county court, according to the terms of the replevisor's bond. Animals ferce naturce are not "goods," and replevin does not lie for them if taken in distress (Bac. Abr. Eeplevin, ¥). (u) Cruelty to Animals Act, 1854 (17 & 18 Yict. c. 60), s. 1 p. 384, post. (x) Wilder v. Speer (1838), 8 A. & E. 547 Bignell v. Clao^he (1860), 5 H. & N. 485. Where several persons impound in (y) 1 & 2 Phil. & Mar. c. 12, ss. 1, 2.

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.3.

Damage F easan t.