268 ABANDONMENT OF DISTRESS. 



Knou'Jes v. Bhthp was a Rtronp:cr case tlian the above, as the caftU 

 hnil neve?' hem in the pound. Tlie plaintiff's son having seen the defen- 

 dant Blake's horses trespassing in his father's field, was in the act of 

 driving them to the pound, when he left them for the jDurpose of ap- 

 prising Blake of what had happened. When he was out of sight they 

 strayed from the plaintiff's field into the defendant's shrubbery, where 

 they remained half-an-hour : at the end of that time plaintiff's son, 

 having failed to receive redress, di'ove them out of the shrubbeiy into 

 plaintiff's yard, from which they were shortly afterwards rescued by the 

 defendant and his servant. It was objected that there was no rescue, 

 because the distress had been abandoned by the plaintiff's son allowing 

 the cattle to escape and remain in the shrubbery, whence he had no 

 right to remove them. A verdict was found for the plaintiff, subject to 

 a motion to set it aside, in which judgment was given for the defendant. 

 Best C.J. said : " Two questions have been raised in this case : upon 

 the first, we all think that the distress was sufficiently made, for no 

 precise act or form is essential to a distress. But distress is a matter of 

 strict right, and if he who distrains damage feasant permits the cattle to 

 escape, he must look for some other remedy. A mere escape for an 

 instant, indeed, if the distrainor followed him, would not be an aban- 

 donment of the distress ; for Lord Coke (Co. Litt. 161a) says : ' When 

 a man has taken a distresse, and the cattle distreyned, as he is driving 

 of them to the pound, go into the house of the owner, if he that took 

 the distresse demand them of the owner, and he deliver them not, this 

 is a rescous in law.' But here the plaintiff's son permitted the horses 

 to stray in the defendant's shrubbery for half-an-hour, they were not 

 demanded during that time, and that was an abandonment of the right 

 of freshly following. Lord Colce also says : ' If the cattle of themselves 

 after the view go out of the fee, then cannot the lord distreyne them ' '' 

 {ib.). A plea of recaption on a rescue must aver that the recaption was 

 on fresh pursuit {Rich v. WoolJcy, 7 Bing. G51). 



In Badkin v. Powell it was held that trespass vi et armis does not lie 

 against a pound-keeper merely for receiving a distress, though tlie original 

 taking be tortious, but secus if he exceeds his duty, and assents to the 

 trespass. This was a case of trespass by the plaintiff, who was a running 

 dustman, against the three defendants, two of whom had detained the 

 })laintiff's cart and horses in the street, under the pretext that they were 

 an estray. Lord Mansfield C.J. thus defined a pound-keeper's duties : 

 "The pound-keeper, who is the third defendant, had no concern in 

 taking or bringing them to the pound. How, then, is he guilty of 

 trespass ? The pound is in the custody of the law ; and the pound- 

 keeper is Ijound to take and keep whatever is brought to him at the 



