Animals.
886 Sect.
3.
Distress
hands
of the distrainor without a breach of the peace " fresh pursuit " (^).
and upon
Damage Feasant.
Kemedy by indictment.
839. Eescue and pound-breach are indictable misdemeanours at law, though they are not often heard of at the present day (?/). The indictment will lie only where the goods have been taken out of the custody of the law. Thus where an official, such as a hayward, has distrained beasts on private land and is taking them to the pound, an indictment will not lie if they are rescued, because they are in his custody as servant of the owner of the land and not
common
in citstodid legis
Summary remedy.
(z).
840. There is also a summary remedy before the justices; if any person releases or attempts to release from a pound any horse, ass, sheep, swine, or other beast or cattle (which includes cows and heifers (a) ) lawfully seized for the purpose of being impounded in consequence of having been found wandering, straying, lying, or being depastured on any inclosed land without the consent of the owner or occupier, or damages or destroys any part of the pound, he commits an offence for which he may be subjected to a penalty not exceeding five pounds, together with reasonable expenses, and imprisonment in default of payment (&). This jurisdiction of the justices, however, is ousted if any question arises as to title to lands, bankruptcy, any execution under legal process, or any obligation to maintain walls or fences (c). In places to which the Towns Police Clauses Act, 1847 (d), applies, there is a remedy on summary conviction by imprisonment for a term not exceeding three months. The law as to rescue and pound-breach is here dealt with only so far as it is material to animals distrained damage feasant it also applies to distress for rent, which is foreign to the present subject, and is now mostly governed by statutory enactments which do not apply to distress damage feasant (e).
Part Nature
of
the contract,
IV.
—The
Contract of Agistment
841. Agistment (/) is in the nature of a contract of bailment, conferring no interest in the land and therefore not requiring to be in writing (g), and arises where one man (the agister) takes another (x) (y)
PerTiNDAL, C.J., in Rich v. WooUey (1831), 7 Bing. See title Criminal Law and Procedure, and B.
17 Cox, C. C. 598. {z) R. V. Bradshaiu (1835), 7 C. & P. 233. (a) R, V. Qee (1885), 49 J. P. 212. Pound-breach Act, 1843 (6 & 7 Yict. c. 30), (c)
Ibid.,
s.
s.
651, at p. 661. v. Butterfield (1892),
1.
2.
10 & 11 Vict. c. 89, see s. 26. See title Distress. " gyser," to lie, (/) The term agistment is said to be derived from the French because the beasts are there levant and couchant; see Co. Inst. Pt. 4, c. 73, p. 293. Jones v. Flint {y) Under sect. 4 of the Statute of Frauds (29 Car. 2, c. 3) (1839), 10 A. & E. 753. {d) (e)
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