— Part
Liability of
III.
Owners of Animals.
he need not have a demise of the soil itself provided he has such an interest in the land as to enable him to maintain an action of trespass for the protection of that interest (y). A demise of the milk of twenty-two cows to be depastured on certain stated fields, with a covenant not to depasture other cattle there, gives the grantee a right to the pasturage of those fields, and he may distrain any cows of the grantor which he finds there eating the herbage for the remedy under the covenant does not oust the right in trespass or distress {z). A lord of a manor in which the custom is for the copyholders to have the sole right of pasture for the whole year may distrain damage feasant the beasts of a person not a copyholder, because they may damage the soil as well as the grass (a) a tenant in common may distrain the cattle of another tenant in common who has agreed not to exercise his rights for a term of years (h) a commoner may distrain the beasts of a stranger, but not of another commoner who exceeds his number, nor of the lord or any other person who puts cattle on the common under a colour of right (c). Where two persons have concurrent possession of land one cannot distrain the cattle of the other {d), nor can a tenant holding over after expiration of his term, and in defiance of a notice to quit, distrain cattle put on the premises by the landlord for the purpose of taking possession (e). exercise this right
379 Sect.
3.
Distress
Damage F easan t.
826. Any chattel not of a perishable nature that is trespassing What may distrained, and doing damage may be distrained damage feasant the rule is not confined to animals (/), though they form the subject of this article and afford the chief illustrations of the rule, as they are more liable to trespass than other chattels. The only chattels exempt from distress are things in actual use. Thus a horse cannot be distrained if there is a rider upon it (g) though it is said a horse may be distrained if a person is leading it (h). At common law the beasts of the plough (z) could not be distrained for rent any more than the axe of a carpenter or the books of a scholar, but it is
,
(y) If a man has a grant of vesturam or herlagium terroc., the soil does not pass, but he has an action of trespass c[uare dausum regit (Co. Litt. i. 1, 4 b).
f
Moore
(1793), 5 Term Eep. 329. (a) HosUns v. Bobbins (1672), 1 Yentr. 123, 163. (b) Whiteman v. King (1791), 2 Hy. BI. 4. (z)
Burt
V.
(c) See Hall v. Harding (1769), 4 Burr. 2426 (where there is much learning on the question of commoners distraining), and Cape v. Scott (1874), L. E. 9 Q. B. 269. But if the lord improperly put agisted cattle on the common, the
commoners may
distrain upon them. Churchill v. Evans (1809), 1 Taunt. 529. (e) Taunton v. Costar (1797), 7 Term Eep. 431. (/) E.g., a railway engine {Ambergate Hail. Co. v. Midland Bail. Co. (1853), 2 E. & B. 793 see per Cave, J., in Boden v. Boscoe, [1894] 1 Q. B. 608, 611) turves laid upon a common {Bromhall v. Norton (1683), T. Jones, 193). Hoskins v. Bobins (1671), 2 Saund. 323 Storeij v. Bobinson {g) Co. Litt. 47 a Compare Field v. Adames (1840), 12 A. & E. 649, (1795), 6 Term Eep. 138. horse and harness in actual use ; the object of this exception is to avoid a breach {d)
of the peace (ibid., at p. 654). (h) G-ilbert on Distress, p. 49.
It is obvious that a horse being merely led not be in actual use. {i) Averia carucw as opposed to animalia otiosa, which might be always distrained. See Co. Litt. 47 a and 161 a.
may
