AGISTER. 229 



that certain cattle belonging to a drover on their way to Court of 

 a market for the purpose of being sold there, and put to ^^^l^^ 

 graze for one night, immediately before the morning on 

 which the market was to take place, were privileged from 

 distress by the landlord, for rent due to him out of the 

 place in which they fed (m). 



The settled distinction seems to be, that where a Distinction 

 stranger's cattle escape into another's land by breaking the where cattle 

 fences, where there is no defect in them, or if the tenant of treakin? 

 the land where the distress is taken is not bound to repair fences. 

 the fences, though there is a defect in them, the cattle may 

 be distrained for rent whether they are levant et couchant or 

 not. If, however, the cattle escape through the defect of 

 fences which the tenant of the land is bound to repair, 

 they cannot be distrained by the landlord for rent, though 

 they have been levant et couchant, unless the owner of the 

 cattle, after notice that they were on the land, neglects or 

 refuses to drive them away (o). 



But live stock agisted on a holding to which the Agri- Limitation of 

 cultural Holdings Act, 1883 (46 & 47 Vict. c. 61), applies, tjf^'^'j^^. 

 enjoy a limited privilege from distress by virtue of ral Holdings 

 section 45 of that Act, which enacts as follows : — Act. 



" Where live stock belonging to another person has been 

 taken in by the tenant of a holding to which this Act 

 applies to be fed at a fair price agreed to be paid for such 

 feeding by the owner of such stock to the tenant, such stock 

 shall not be distrained by the landlord for rent where there 

 is other sufficient distress to be found, and if so distrained 

 by reason of other sufficient distress not being found, there 

 shall not be recovered by such distress a sum exceeding the 

 amount of the price so agreed to be paid for the feeding, or 

 if any part of such price has been paid exceeding the 

 amount remaining unpaid, and it shall be lawful for the 

 owner of such stock, at any time before it is sold, to redeem 

 such stock by paying to the distrainer a sum equal to such 

 price as aforesaid, and any payment so made to the dis- 

 trainer shall be in full discharge as against the tenant of 

 any sum of the Kke amount which would be otherwise due 

 from the owner of the stock to the tenant in respect of the 

 price of feeding : Provided always, that so long as any 

 portion of such live stock shall remain on the said holding 



(») Nugent v. Kirwan, 1 Jetb & Saund. 290. And see 2 Lutw. 1580 ; 

 Symes, 97 (Q. B. Ir.). Gilb. Dist. 34, 2nd ed. See also 



(o) Foole V. lonffuevill, 2 Wms. Woolryoli on Fences, 309, 310. 



