DISTRESS. 305 



breaking through a hedge which he had kept in good repair, 

 his neglect being the original cause of the injury. "'''' And, 

 in general, where trespassing cattle are distrained on land 

 not enclosed by a lawful fence, the owner may recover pos- 

 session of them without paying damages f^^ and he may enter 

 the other's land for the purpose of driving them back without 

 incurring a liability for trespass. ^®^ Replevin is the ordinary 

 remedy in case of a wrongful distress.^'^^ 



One commoner cannot distrain the cattle of another com- 

 moner, as they come upon the commonable land by color of 

 right. ^°* So, where two persons have concurrent possession 

 of land for the purpose that each may take profits of a special 

 nature not inconsistent with the rights of the other, as if one 

 has the exclusive right to dig stone, the other to pasture — one 

 may not distrain the other's cattle damage feasant?^^ Where 

 two had the right of common over a whole field but agreed 

 not to exercise such right, one cannot distrain the other's 

 cattle.^ee 



A tenant holding over after the expiration of his term can- 

 not distrain the landlord's cattle put upon the premises by 

 way of taking possession. ^*^ 



Cattle in actual use of the party cannot be distrained 

 damage feasant.^^^ Nor can a horse with a rider on him,^"^ 

 though the contrary has been held where he was led by a 

 person at the time.^^" Where it was averred that a dog when 

 taken was in the actual possession of the plaintiff's son and 



""' Singleton v. Williamson, 7 H. & N. 410. 



'"■ Blizzard v. Walker, 32 Ind. 437. ''' Camp v. Flaherty, 28 la. 520. 



"-■" I Chit. PI. 164. 



"" Cape V. Scott, L. R. 9 Q. B. 269, citing Hall v. Harding, 4 Burr. 2426, 

 and holding the principle to be applicable to common pur cause de 

 vicinage as well as to common appurtenant. 



-"'' Churchill v. Evans, i Taunt. 529. 



''" Whiteman v. King, 2 H. Bl. 4. '"' Taunton v. Costar, 7 Term 43i- 



'•^ Field V. Adames, 12 A. & E. 649. 



""' Storey v. Robinson, 6 Term 138. 



"° Wagstaff V. Clack, Cambridge Sum. Assizes, 1826, Ms. 

 20 



