DISTRESS DAMAGE FEASANT. 265 



CHAPTER IX. 



DISTRESS. 



Gilhert thus defines the general principles of distress damage feasant : 

 ''A man may distrain beasts damage feasant ; but if a man come to 

 distrain, and see the beasts on his ground, and the owner chase tliem 

 out before the distress be taken, though it be of purpose to prevent the 

 distress, yet the owner of the soil cannot distrain 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 distress ; and if they were damage feasant 

 yesterday, and again to-day, they can only be distrained for the damage 

 they are doing when they are distrained. And if many cattle are doing 

 damage, a man cannot take one of them as a distress for the whole 

 damage, but he may distrain one of them for its own damage, and 

 bring an action of trespass for tlie damage done by the rest." So Lord 

 Cohe says (1 Inst. 161 A) : '* If a man come to distrain for damage 

 feasant, and see the beasts on his soil, and the owner chase them out on 

 purpose before the distress is taken, the owner of the soil cannot 

 distrain 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 distress." 

 His Lordship also adds (1 Inst. 142 a) : " It is to be understood that 

 for a rent or service the lord cannot distrain in the night, but in the 

 day-time ; and so it is of a rent-charge. But for damage feasant one 

 may distrain in the night ; otherwise it may be that the beasts will be 

 gone before he can take them." 



And j;er Witmot C.J. : " If a man turn cattle into Blackacre, where 

 he has no right, and they escape and stray into my field for want of 

 fences, he cannot excuse himself or justify for his cattle trespassing in 

 my field" (3 Will. 12). It was decided in Dovaston v. Pagne, that a 

 plea in bar of an avowry for taking cattle damage feasant, that the 

 cattle escaped fi'om a public highway into the locus in quo, through the 

 defect of fences, must show that they weve passing on the highwag when 

 they escaped ; and that it is not sufficient to state that being in the 

 highway they escaped. Heath J. said : " The law is as my brother 

 Williams (Sergeant) stated, that if cattle of one man escape into tlie 



