DISTRAINING CATTLE OF STRANGER. 275 



'' This case is clearly distinguishable from Glynn v. Thomas ; there it 

 did not appear that the tender was made before impounding " {ih). 



The note in Poole v. LongvcvUh says, "Agreeable to the opinion of 

 Smmders, the settled distinction seems now to be, that where a stranger's 

 cattle escape into another's land by breaking the fences where there is 

 no defect in them, or if the tenant of the land where the distress is 

 taken is not bound to repair the fences though there is a defect in them, 

 the cattle may be distrained for rent immediately before they are levmit 

 and coufliant ; but if the cattle escape through the defect of fences 

 which the tenant of the land is bound to rei)air, they cannot be distrained 

 by the landlord for rent, though they have been levant and couchant, 

 unless the owner of the cattle after notice that they are in the land 

 neglects or refuses to drive them away, for the landlord shall not take 

 advantage of his own wrong ; and this case of Poole v. Lo7igueviUe (if 

 cattle escape out of an adjoining close, and are levant and couchant, ad- 

 judged that they may be distrained for rent, though they escape through 

 the defect of fences which the party distraining ought to have repaired) 

 is denied to be law." 



Littledale J. said, in Safferi/ v. Elgoocl, which was confirmed in Jolin- 

 son v. FauUnur, "The cccttle of a stranger are cUstrainahle for a rent-charge, 

 unless they are shown to have been placed there by some one who has 

 an interest paramount to the charge." "A rent-charge is a rent with 

 power of distress ; and unless the grantee could distrain the cattle of a 

 stranger being upon the land, I know not what would be the use of a 

 power of distress ; for the land might get into the hands of a stranger. 

 In order to exempt the cattle of a stranger, he ought to show some 

 interest in the land, paramount to that of the grantee of the rent-charge." 

 " In 2 Saund. 290 there is a note which, referring to the case of a 

 stranger's cattle escaping into another's land by breaking the fences, 

 says, 'The lord ox grantee of a rent-charge, who had nothing to do with the 

 fences, may in such case distrain the cattle after they have been levant 

 and couchant, though no notice is given to the owner.' Kemp v. Creives 

 is there cited. That case may be considered as having settled the law 

 that a grantee of a rent-charge may distrain the goods of a strarger 

 being upon the land charged." 



Cattle which cere upon land hg wag of agistment may be distrained for 

 rent (Roll. Abr. 669 ; Cro. Eliz. 549). In FowJces v. Jogce, a grazier's 

 servant driving a flock of 123 fat sheep to London, was encouraged by 

 an innkeeper's servant to put his sheep into pasture grounds belonging 

 to an inn, at the usual rate of eightpeuce per score per night. Before 

 they were levant and couchcint the landlord, Joyce, whose rent was £132 

 in arrear, demanded whose they were, and seeming to be angry the 



T 2 



