Page:Halsbury Laws of England v1 1907.pdf/607

 — Part

III.

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Liability of

Owners of Animals.

385

them in custody he is therefore not liable if the distress ordetention were wrongful unless he has taken some active part in the distress outside his duties (i).

Sect.

3.



Distress

Damage Feasant.

Sub-Sect.

3.

Rescue and Pound-Breach.

837. Eescue {rescous) has been defined as " a taking away and setting at liberty against law a distresse taken, or a person arrested by the proces or course of law " (A;). Pound-breach {parco fracto) is the taking of the thing distrained from a lawful pound (Z). The difference is that rescue is the taking before the animals are impounded, and while in the custody of the

Definitions,

distrainor pound-breach is the taking after they are impounded In each case an action of trespass lies for it in custodid legis. in early days there was a writ of rescous or parco fracto {m).

and and

838. Eescue may be justified in any case where the distress is unlawful, as where the distress is made on the highway or after proper tender of amends {n), or where the beasts are not distrained at the time of the damage, or are distrained on the soil of another than the distrainor (o) or where the distress has been abandoned, or the beasts escape in such a way as to amount to an abandonment {p), or in any case where the distress amounts to a trespass ah initio, as where the animals distrained have been abused {q). Pound-breach, however, cannot thus be justified, because, once impounded, the cattle are in the custody of the law the breach of the pound is the gist of the action, and the party who distrained need not show his right to do so (?•). If the distrainor himself take them out of the pound in order to use them, the owner may retake them and use sufficient force to do so, and is not liable in an action for either rescue or pound-breach (s), and it seems that if the owner makes " fresh pursuit " and finds the pound open or unlocked, they are not properly impounded, and he may justify {t). Lord Coke says there may be rescue in deed and rescue in law, the latter being where the cattle distrained go into the house of their owner as they are being driven to the pound, and he refuses to deliver them when

Justification,

,



demanded {u) The remedies.

for rescue

trespass, or recaption,

i.e.,

and pound-breach are either an action

in

the taking of the cattle again into the

BadJcen v. Poiuell (1776), 2 Cowp. 476. Co. Litt. 160 b. (0 Com. Dig. Distress (D 2). (m) Fitzherbert, Nat. Brev. 100 E, 101 0. (w) Co. Litt. 160 b. See note (r), p. 380, ante. (o) Ibid., 161 a. Compare Bod v. Monger (1704), 6 (p) Knoides v. Blake (1829), 5 Bing. 499. Mod. Eep. 215. The distinction appears to be between a momentary escape, e.g., for balf an hour, as in Knowles v. Blake, and a real loss of them. {q) See pp. 381, 382, ante. Cotsiuorth v. Betison (1696), 1 Ld. Eaym. 104. (r) Co. Litt. 47 b (s) Smith V. Wright (1861), 6 H. & N. 821. (t). Co. Litt. 47 b. (u) Ibid., 161 a. As to the difference between this and abandonment, see note (p), supra. (?:)

(k)



H.L.

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I.

C C

Civil

remedies.