— Part
III.
Liability of
Owners of Animals.
829. Each animal is distrainable only for the damage which it if ten head of cattle are doing damage, one cannot be taken and kept as satisfaction for the whole damage, nor, if an animal does
trespasses twice, can it be detained the second time for the damage done the first time {t). To justify a distress damage feasant there must also be actual damage {ii) at the time to the land or things on it, even if it only amounts to a treading down of the herbage. The older text-books suggest that the damage must be damage to the soil or its produce (x), but there is no authority for this; and it is now decided that damage to an animal on the land, such as a filly, is It may still be an open question sufficient to justify a distress (?/). whether injuries to people or to chattels other than animals would justify the distress, as a filly may be regarded as part of the natural In one case, where a horse ran away stock upon the land (?/). into a yard and injured a carriage there, the point was not specifically decided, as the decision turned upon the seizure being unnecessary to prevent the horse doing any further damage (z). distress damage feasant is very similar but it is a simpler remedy, and there are very few statutory modifications of the common law right. Under the Statute of Marlborough {a) there can be no distress upon the highway (b) but, unlike distress for rent, it may be made at night, for otherwise the beasts might escape, and the remedy be lost (c).
830. Generally speaking,
to distress for rent,
381 Sect.
3.
Distress
Damage Feasant. For what damage distress may-
be made.
Actual
damage necessary.
Restrictions ^^^^^^^^^
831. Distress at common law is merely a pledge for compen- Abuse of the sation for injury, therefore animals seized damage feasant cannot distress. be sold or used by the distrainor (d). Any wrongful user of the distress makes the distrainor a trespasser ab initio, as where a man used for farmwork a horse which he had distrained, for he hath it by law only for a gage" (e). Indeed, such a user entitles v. Edwards (1701), 12 Mod. Eep. 661. see Amhergafe Bail. Co. v. Incumbering the land may be damage Midland Bail. Co. (1853), 2 E. & B. 793. Gilbert on Distress, pp. 21 and 24. (x) BuUen on Distress (2nd ed.), p. 257 The rabbits mentioned in Rolle, Abr. Distress, A, may fairly be said to be tlie {t)
Faspor
(u)
produce of land. The language of Mathew, J., at 608. (?/) Baden v. Boscoe, [1894] 1 Q. B. p. 611, in this case, "all kinds of damage," is wide enough to cover injuries to other chattels besides animals on the land. (z) Warmer v. Biggs (1845), 2 C. & K. 31. (a)
52 Hen. 3, c. 15. Compare Lyons v. Martin
Co. Litt. 161 a. See, how(1838), 8 A. & E. 512 ever, Hodges v. Laiurance (1854), 18 J. P. 347, from which it seems that distress may be made if the thing distrained is not using the highway as a highway. This was a case of a waggon stationary and within the middle of the highway, and presumed to be on the demised premises. If, therefore, cattle stray on to the highway and are found grazing on grass at the side thereof, the owner of the adjacent land can, on the authority of this case, distrain them damage feasant, if he can show that he is owner or occupier ad medium filum vice, as in many cases he can. (c) Co. Litt. 142 a. (d) The statutes 11 Geo. 2, c. 19, and 2 W. & M., sess. 1, c. 5, s. 2, giving a power of sale, apply only to distress for rent. (e) Bagshawe v. Goiuard (1606), Cro. (Jac.) 147. (b)
