306 ANIMALS TRESPASSING AND RUNNING AT LARGE. 



servant and under the personal care of and being used by the 

 servant, this was held insufficient, as applied to a dog, to show 

 such user as would exempt it from seizure damage feasant?''^ 



The word "stock" in a statute regulating the right of dis- 

 tress was held to include swine. "The word 'stock,' in agri- 

 culture, means domestic animals collected, raised or used on 

 a farm." ^^^ 



A distress damage feasant cannot be made after a tender 

 of amends before the taking, nor can it be detained if a tender 

 is made after the taking and before the impounding. But 

 after the impounding the tender comes too late to make either 

 the taking or detainer unlawful.^'^^ The subject of impound- 

 ing is reserved for another chapter.^^* 



The injured person may make his election as to whether he 

 will distrain or sue in trespass, but when he has done so he 

 has no other remedy unless that be ineffectual by act of God 

 or of the other party.^'^^ 



80. Other Remedies Against Trespassing Animals. — Apart from 

 the right to distrain discussed in the preceding section, the 

 owner of land on which animals have trespassed has no lien 

 upon them or authority, in the absence of a statute, tO' pen or 

 detain them, and one may, without incurring liability, throw 

 down another's fence in order to recover his animals so de- 

 tained.^^'^ The land-owner may remove the animals from 

 the land. Beyond that, his right is limited to impounding 

 them according to the law of the place, and where he drives 

 them to his own premises and holds them there until dam- 

 ages done on that occasion and previous ones are paid, he is 

 liable in replevin.^'^'^ Nor can he in such a case recover the 



^" Bunch V. Kennington, i Q. B. 679. 

 "'■ State V. Clark, 65 la. 336, citing Webs. Diet. 



™ Oldham v. Foster Distress, 2d ed., 308. And see McPherson v. 

 James, 69 111. App. 337; Gilbert v. Stephens (Okla.), 55 Pac. Rep. 1070. 

 '" See §§ 81-84, infra. 



^^'^ Vaspor V. Edwards, 12 Mod. 658. And see Brown v. Howard, infra. 

 "" Hill V. State, 104 Ala. 64. '" Ladue v. Branch, 42 Vt. S74. 



