LAW OF THE FARM. 301 



LECTURE NUMBER SEVEN. 



DISTRAINING BEASTS DOING DAMAGE. 



If you find your neighbor's cattle unlawfully on your premises doing damage^ 

 you have two remedies — you can sue the owner of the cattle, or you can dis- 

 train them. If the owner is well known to you and is abundantly responsible, 

 YOU would probably pursue the first remedy. If you had any doubt about this^ 

 you would seize the cattle and hold them for the damage. The right to distrain 

 cattle doing damage existed at common law, and was not introduced by statute. 

 It sprang from a felt necessity for a summary and direct remedy against the 

 beasts committing damage, and also for some guard against possible incentive 

 to do hurt to them or putting them out of the way. The owner might not be 

 discoverable, nor be in a situation to be reached by process, or if discovered 

 and within reach of process there might be impediments in the way of any 

 redress by an ordinary action for damages. And if the beasts could not be 

 held, the injured party might be moved to misuse them or put them in a way 

 to be lost to the owner. The right to distrain beasts doing damage, with 

 several incidents, being established by the common law, statutes have been 

 passed to regulate its exercise. 



The right being admitted, it was needful to frame guards, not only against 

 wrongs likely to be done under color of it, but also against violations likely to- 

 be committed against the right itself, under color of the very guards intended 

 merely to prevent its being resorted to as a cloak for wrong. 



Accordingly, it is provided by the statutes of Michigan that, when any per- 

 son is injured in his land by any sheep, swine, horses, asses, mules, goats, or 

 neat cattle, he may recover his damages in action of trespass or trespass upon 

 the case, against the owner of the beasts or against the person having the care 

 and control of such beasts, or by distraining the beasts doing the damage. 



You must bear in mind, however, that if the beasts shall have been lawfully 

 on the adjoining lands and shall have escaped therefrom in consequence of 

 your neglect to maintain your part of the division fences, the owner of the 

 cattle is not liable, and you have no right to distrain them. 



The right to distrain beasts does not depend upon the particular kind of 

 injury done on the place where it is committed. Swine in one's barn, eating 

 corn, may be distrained. They must be taken while doing damage, and not 

 after it is done or while they are off the land. And after they have been dis- 

 trained they must not be beaten, nor worked, nor used, nor abused. 



The beasts so distrained for doing damage shall be impounded or placed in 

 the township pound, if there be one, and the man who distrains them must 

 leave with the keeper of the pound a memorandum in writing, signed by him, 

 stating the cause of distraining and the sum that he demands from the owner 

 for the damage done by the beasts. 



In this western country there are but very few towns in which pounds are 

 provided. Accordingly it is provided by statute, that, if there shall be no 

 no public pound within the township, the beasts shall be impounded in some 

 suitable place, under th6 immediate care and inspection of the person who dis- 

 trained them, and he shall furnish them with suitable food and water so long 

 as they remain impounded. 



When the beasts are impounded, shut up, confined, within twenty-four 

 hours thereafter you must give notice thereof in writing to the owner or person 



