DEMISE OF A DAIRY. 267 



the field, and calling the other defendant, his servant, to his assist- 

 ance, they drove her back into the defendant's field, and from thence to 

 the pound. There was rather contradictory evidence as to the fact 

 whether the defendant had actually got into the field where the trespass 

 was done before the cow had been turned out of it or not. Lord EMun 

 C.J. thus pat the case to the jury : If Milner, in the act of coming up 

 in order to distrain the cow, had actually got into the field where the 

 cow was committing the trespass before she had been turned out of it, 

 the justification that he was owner of the field of turnips where she was 

 trespassing was proved ; but if they thought that though he might be 

 approaching it to distrain her, the cow was out of the hcus in gt^o before 

 he got into it, the verdict must be for the plaintifi* ; and so the jury 

 found it. 



Burt V. Moore was a somewhat peculiar case. The plaintiflF demised 

 to the defendant the milk of twenty-two cows, provided by the plaintiff, 

 and to be fed at the plaintiff's expense on certain closes belonging to 

 him, the plaintiff covenanting that the defendant might turn out a 

 mare, and that no other cattle should (except a bull with the cows from 

 April 23rd to November 13th) be fed there. It was held that the 

 separate herbage and feeding of those closes passed to the defendant, 

 and that the defendant might distrain other cattle of the plaintiff's 

 doing damage there. And ])cr Ashhurst J, : " The cases of Rex v. 

 LocJcerlij and Eex v. Tolpuddle go the full length of deciding the 

 present. In those it was held that a right to the separate herbage gave 

 the party renting it a settlement ; and that the sole right to the use of 

 a thing was the same as a right to the thing itself. Such is the present 

 case ; it is the demise of a dairy ; of the sole right of enjoyment of cer- 

 tain closes to the exclusion even of the lessor himself. For as to the 

 circumstance of the bull, that does not derogate from the general and 

 exclusive right granted ; on the contrary, the stipulation was inserted 

 for the benefit of the lessee, and not of the lessor, since otherwise the 

 lessee would not have had the advantage of the cows." 



The escape of a distress was very much considered in Vasjmr v. 

 Edwards, which was a case of " trespass quare dausum fregit, and fed 

 his grass with a pig." The pig had been taken damage feasant, and im- 

 pounded in a common pound, and the Court held that if a distress 

 escapes the person distraining cannot bring trespass, unless he shows 

 that the escape was without his default. And ^^er Holt C.J. : " If a 

 distress damage feasant dies in pound, or escapes, the party shall not 

 distrain de novo ; but if it were for rent, in either case he may distrain 

 de novo." This dictum was quoted by Best C.J. in his judgment in 

 Knowles v. BlaJce. 



