2C)6 THINGS IN MANUAL USE CANNOT BE DISTRAINED. 



land of another, it is no excuse that the fences were ont of repair if they 

 were trespassers in the place from whence tliey came. If it l)e a close, 

 the owner of the cattle must show an interest or a right to put them 

 there. If it be a way, he must show that he was lawfully using the 

 way ; for the pro^x^rty is in the owner of the soil, subject to an ease- 

 ment for the benefit of the public. 



Carndlicrs v. Hullis and Church was a case of trespass for driving 

 plaintiff's sheep and having them in a highivay, by which they were in- 

 jured. To this it was pleaded that they were wrongfully in defendant's 

 close depasturing, and that defendant drove them into the adjacent 

 highway. The replication was that they escaped into defendant's close 

 from an adjoining close of plaintiff's through a defect in the fence 

 between the two closes, which fence defendant was bound to repair. 

 The rejoinder travereed the escape of the sheep through a defect in the 

 fence, and the issue was found for the plaintiff. It was held that the 

 replication answered the plea. Lord Denman C.J. said : " It is per- 

 fectly clear that the least to be expected from a party in the situation of 

 the defendant here, is that he should put back the sheep into the place 

 in which they were before they quitted it in consequence of his neglect." 



A horse, harness, and other things in actual iTiamial use, cannot be 

 distrained damage feasant, although they be so in use in doing the 

 damage complained of, because of the tendency to a breach of the peace 

 {Field V. Adames). And it is not necessary for the person whose pro- 

 perty is distrained to aver that the peace was endangered, nor that the 

 things taken were " in manual " use ; but it is sufficient to state they 

 were "in the actual possession of the plaintiff, and then under his per- 

 sonal care, and were then being actually used by him " {ih.). A strong 

 case is put in Bac. Abr. " Distress" (f), where it says, " If a man rides 

 upon my corn, I cannot take his horse damage feasant'"' 



To support a justification for taking cattle as a distress damage 

 feasant, if it appear that the party distraining had not actually got into 

 the locus in ([uo before the cattle had got out of it, the justification can- 

 not be supported {Clement v. Milner). In this case the cow broke into 

 a field of turnips belonging to the defendant, and a woman picking 

 turnii:>s turned her out. The fences (which it apjieared the plaintiff 

 was bound to repair) were in a very ruinous state, and the cow re- 

 turned ; the same woman was about to turn her out again, when one of 

 the defendants being in an adjoining field, and seeing her endeavour to 

 turn the cow out, called out to her to stop, and ran towards the place 

 where the cow was. The woman not having heard him, turned the cow 

 back into the plaintiff's field, and she had got some way into the defen- 

 dant's field before the defendant came up. He followed the cow into 



