302 ANIMALS TRESPASSING AND RUNNING AT LARGE. 



it might be distrained damage feasant.^^^ This right has been 

 held not to exist in Ohio,^^^ Indiana,^*^ or Missouri.^^^ In 

 Maine it exists wherever no pound-keeper has been appointed 

 by statute.^'^^ 



The remedy exists only with reference to present or im- 

 mediate damage. The owner of a freehold cannot seize an 

 animal which has done damage but has ceased doing so, when 

 it is not necessary to detain it to prevent further damage.^^® 

 Therefore, the animal cannot be distrained if it has escaped 

 from the land before capture,^*" or has been driven out and 

 has afterwards returned.^*^ And where the plaintiff dis- 

 trained the defendant's cattle and went to tell the latter, and 

 the cattle escaped into the defendant's land where the plain- 

 tifif's son allowed them to remain for half an hour, and on 

 the plaintiff's return he drove them back and the defendant 

 took them thence, the last act was held not to be a rescue, as 

 leaving the cattle in the defendant's ground was an abandon- 

 ment of the distress.^*^ A plea of recaption upon a rescue 

 must aver that the recaption was on fresh pursuit.^*^ 



Where cattle trespass upon unfenced land immediately ad- 

 joining a highway, the owner of the land may distrain them 

 after a reasonable time has elapsed to remove them in. What 

 is a reasonable time is for the jury to determine under all the 

 circumstances.^** "The qualification of reasonable time to 



^'' Garrett Nuisances i6/(. 



See also the cases on liens in § 80, infra. 



This right is not a matter of course: it depends upon circumstances: 

 Ruter V. Foy, 46 la. 132. As to the California statutes, see Wigmore v. 

 Buell, 122 Cal. 144. 



''° Northcott V. Smith, 4 O. Circ. Ct. 565. 



"'" Little V. Swafford, 14 Ind. App. 7. 



'" Crocker v. Mann, 3 Mo. 472. '^ Mosher v. Jewett, 63 Me. 84. 



""" Wormer v. Biggs, 2 C. & K. 31. 



^^ Co. Litt. 161 a; Clement v. Milner, 3 Esp. 95; Warring v. Cripps, 

 23 Wis. 460; Holden v. Torrey, 31 Vt. 690. 



'" Graham v. Spettigue, 12 Ont. App. 261. And see Vaspor v. Edwards, 

 12 Mod. 658. 



'•" Knowles v. Blake, 5 Bing. 499. =*' Rich v. Woolley, 7 Bing. 651. 



'" Goodwyn v. Cheveley, 28 L. J. Ex. 298; 4 H. & N. 631. 



