Animals.
380 Sect.
3.
Distress
Damage Feasant.
Justification of the distress.
submitted that this exemption does not exist for trespass damage feasant. It is also said that " distress must be of a thing whereof a valuable property is in somebody, and therefore dogs, bucks, does, conies, and the like, that areferce naturce, cannot be distrained" (/c); but as regards dogs this is not now the law, for they may be distrained when trespassing and doing damage ®, and greyhounds, ferrets, nets, and gins may by very old authority be distrained damage feasant on the land, but not if they are held by a man(?7i).
827. In order to justify a distress damage feasant there must be the evidence will be the same as a trespass without lawful excuse in an action of trespass qiiare claiisiimfregit. A right of common or a right of way, or some title by prescription (n), or an alleged defect in a fence, where the other party was under an obligation to repair, may be set up as a defence. Where cattle strayed into a close owing to a defect in the fence which the owner of the close was bound to repair, and then broke down another fence on the same owner's property and trespassed into a cornfield, it was held that the owner of the close and cornfield had no right to distrain the cattle, because the first wrongful act which caused the mischief was his own default in not maintaining his boundary fence in proper repair (o). Cattle lawfully upon the highway, that is to say, using it for the purpose of passing and repassing, which escape therefrom on to the adjoining land, cannot be distrained damage feasant until after the lapse of a reasonable time for them to be removed (p), but if they are trespassers on the highway, that is, are using it for grazing or any purpose other than that of a highway, they may be distrained immediately they stray on to the adjacent property (q).
Time for making distress.
828. The distress must be made at the time of the trespass and on the land (?•). There is no doctrine of fresh pursuit in distress damage feasant, and the animal cannot be followed if once it goes ofl"
the land
(s)
.
(/v) Co. Litt. 47 a. This is probably an error on Lord Coke's part, who was thinking only of what animals were valuable property. See note (w), infra. (/) Bunch V. Kcnnington (1841), 1 Q. B. 679. and see (?n) Eolle, Abr. Distress, A., quoting year-books and Fitzherbert Boden v. Ihscoe, [1894] 1 Q. B. 608. (n) Compare Bailee/ v. ApyJeyard (1838), 8 A. & E. 161. Compare Carruthers v. (o) ISingleton v. Williamson (1861), 7 H. & N. 410. HoUis (1838), 8 A. &^ E. 113, and compare p. 376, ante, and other cases there
As to fences generally, see title Boundaries and Fences. Ooodwyn v. Chevehy (1859), 4 H. & N. 631. Compare p. 377, ante. If cattle are being lawfully {q) Dovuston v. Payne (1795), 2 Hy. Bl. 527. driven along the highway and crop the herbage at the side of the road the cited.
(p)
trespass
may be
this justification
presumably they were taken there for the purpose of
justified as involuntary (Eolle, Abr. Trespass, K.)
would not succeed
if
grazing.
" If a man come to distreyne for damage feasant, and see (r) Co. Litt. 161 a. the beasts in his soyle, and the owner chase them out of purpose before the distresse is taken, the owner of the soyle cannot distreyne them, and if he doth, the owner of the cattle may rescue them, for the beasts must be damage feasant at the time of the distresse and so note a diversitie." (s) Vaspor v. Edivards (1701), 12 Mod. Eep. 661. Compare Clement v Milner (1800). 3 Esp. 95, where, however, the first part of Lord Eldon's summing up is inconsistent with the older authorities.
.
