304 ANIMALS TRESPASSING AND BUNNING AT LARGE. 



failure to provide a necessary officer, the distress was held to 

 be unlawful.^*^ But one was held not to be estopped from 

 claiming that he sought the statutory remedy by taking un- 

 necessary steps under another statute not applicable to the 

 assertion of his rights.^^* Where the statute limits the right 

 of distress to damage "within the enclosure of the distrainor,'' 

 the owner in fee of land included in the highway has no right 

 to distrain cattle grazing upon the highway, and such cattle 

 were not distrainable at common law, at least since the statute 

 of Marlborough.^^' But where a servant distrains unlaw- 

 fully by driving cattle from the highway into his master's 

 close, he does not make the latter responsible. "A master 

 is liable where his servant causes injury by doing a lawful act 

 negligently, but not where he wilfully does an illegal one." ^°^ 

 A horse in a street, damaging a barnyard fence while fighting 

 a horse inside, may be distrained by the owner of the yard 

 as "doing damage within the enclosure." ^''^ 



The damage in respect of which trespassing animals may 

 be distrained damage feasant, is not confined to damage to the 

 freehold but includes injuries to other animals.^'* Each 

 beast can be distrained only for its own damage, not for the 

 general damage, or any part of it done by the rest.^'® One 

 into whose field cattle have strayed through a defect in a 

 fence which he was bound to repair cannot distrain them 

 damage feasant in another field into which they had gone by 



''^ Armbruster v. Wilson, 43 Hun (N. Y.) 261, where the statutory 

 remedy was held to be additional to the common-law one. 



So the appraisement must be in strict compliance with law: Warring 

 V. Cripps, 23 Wis. 460. Where the distrainor purchases and claims title 

 under a sale which is void for want of the required statutory notice to the 

 owner, he loses his statutory lien: Chase v. Putnam, 117 Cal. 364. 



"" Blair v. Small, 55 Mich. 126. 



^' Taylor v. Welbey, 36 Wis. 42. ™ Lyons v. Martin, 8 A. & E. 512. 



'" Pettit V. May, 34 Wis. 666. 



"" Boden v. Roscoe, [1894] i Q. B. 608, on the authority of Rolle's 

 Abr., where it is said that greyhounds or ferrets chasing and killing rab- 

 bits may be distrained damage feasant. 



''" Vaspor V. Edwards, 12 Mod. 658. 



