MANNER OF IMPOUNDING; REMEDIES. 319 



So, where a person takes cattle from the lawful custody of the 

 field-driver when he is driving them to the pound, though 

 they are never out of the latter's sight and are at last sur- 

 rendered to him and impounded.^* "When a man hath taken 

 a distresse and the cattle distreyned, as he is driving of them 

 to the pound, go into the house of the owner, if he that took 

 the distresse demand them of the owner, and he deliver them 

 not, this is a rescous in law." ^® So, where the owner aids the 

 rescuers on meeting them, he is guilty of pound-breach.^** 

 Where one, without force or fraud, impounds another's cattle, 

 the latter must resort to law, though the impounding is with- 

 out right f''- and in an indictment for pound-breach, the ille- 

 gality of the impounding cannot be shown in defence."^ 



The owner is entitled to the return of the animals if he ten- 

 ders amends before the impounding.^^ "If he does not 

 choose to replevy, but is desirous to have his cattle immedi- 

 ately re-delivered, he may make amends and then bring an 

 action of trespass for taking his cattle, and particularly charge 

 the money so paid by way of amends as an aggravation of the 

 damage occasioned by the trespass." ^* Where the cattle 

 distrained were in a private pound and the distrainor ad- 

 mitted that they were to be forwarded to a public pound, it 



°" Vinton v. Vinton, 17 Mass. 342. 



But where the defendant was in pursuit of her animals which the pros- 

 ecutor was trying to impound, she was held not to be indictable for "re- 

 leasing impounded animals'' because she drove them from his enclosure: 

 State V. Hunter, 118 N. C. 1196. 



'" Co. Litt. 161 a. 



°° Pierce v. Josselyn, 17 Pick (Mass.) 415. 



"■ Bowman v. Brown, 55 Vt. 184. 



"" Com. V. Beale, 5 Pick. (Mass.) 514. And see Melody v. Reab, 4 

 Mass. 471. 



But the owner of cattle wrongfully impounded within a fenced enclosure 

 is not guilty of injuring the fence of another without his consent, if he takes 

 down the fence to release the cattle: Klein v. State (Tex. Cr.), 39 S. W. 

 Rep. 369. See also Matthews v. Schmidt, 8 Kulp (Pa.) 471. 



"' Sheriff v. James, l Bing. 341 ; Singleton v. Williamson, 7 H. & N. 747. 



"' Lord Mansfield in Lindon v. Hooper, Cowp. 414. 



