DISTRESS. 303 



recover the cattle does not apply except in the case of a high- 

 way being the place from which the cattle have deviated." ^*^ 



But where a horse escaped from a stable to the defendant's 

 pasture-land and was pursued by the plaintiff's son-in-law, 

 who was leading it out of the field when it was distrained, the 

 distress was held to be illegal.^*^ 



In Illinois, where the owner of unfenced lands cannot re- 

 cover for the trespasses of cattle, he cannot distrain them 

 for the same damages.^*^ It is otherwise where there is no 

 such requirement as to fencing, but he is limited to the re- 

 covery of the actual damages and reasonable charges for keep- 

 ing and feeding.^*^ 



Taking an animal and confining it in a barn is a sufficient 

 distress.**^ And it seems that if one finds stray cattle damage 

 feasant on his land in the afternoon, he may, if necessary to 

 protect his crops, confine them over night and turn them into 

 the highway in the morning, but not drive them in the high- 

 way in a direction opposite to that of the owner's house.^*" 

 Where a hog was taken damage feasant and kept sixteen 

 months with the plaintiff's knowledge and the parties agreed 

 to arbitrate, but did not do so, it was held, in replevin, that the 

 defendant was not obliged to give notice and that the holding 

 was not unreasonable.^®^ Where the owner has been legally 

 notified, or has waived the formality of notice, trover will 

 not lie.^^^ The distrainor must, however, comply with the 

 statute and where he was not able to do so on account of its 



'" 17 Ir. L. T. 533. "" Mclntyre v. Lockridge, 28 U. C. Q. B. 204. 



^" Oil V. Rowley, 69 III. 469. As to an owner distraining on a tenant 

 unlawfully holding over, see Wright v. Mahoney, 61 111. App. 125. 



™McPherson v. James, 69 111. App. 337. 



"° Hamlin v. Mack, 33 Mich. 103. 



™ Tobin V. Deal, 60 Wis. 87. 



See, as to turning or driving out trespassing animals, § 45, supra. 



"" Shroaf v. Allen, 12 Neb. 109. 



"" Norton V. Rockey, 46 Mich. 460. And see, as to waiver of notice, 

 Parks V. Kerstetter, 113 id. 520. 



As to statutory notice of the assessment of damages, see Healy v. 

 Jordan, 103 la. 735. 



