1807-] 
and by the firmness of character which it 
is calculated to inspire, it has already 
charmed all those who have had an op- 
portunity of becoming intimately ac- 
quainted with 1t. 
— WR Peo 
To the Editor of the Monthly Magazine. 
STR, 
iT AM happy to see the attention of two 
of your correspondents drawn towards 
the cruelty of permitting animals, taken 
for distress, to remain several days in the 
common pound without sustenance : but 
I fear that the law, as it stands at pre- 
sent, cannot remove the evil. 
The case to which your correspondents 
allude must, of course, be understood of 
beasts taken duwmage-feasant; that 1s, 
doing damage to the tenant of the soil, by 
treading down his grass or the like: be- 
cause distress for rent-arrear may Now 
be impounded where taken; and it may 
be sold and the expences of keepiag the 
same defrayed out of the preduce; 
whilst distress for damage-feasant, being 
left as at common law, is regarded as a 
mere pledge, or security to compel the 
performance of satisfaction for damage 
done, and cannot be sold or disposed of 
by the distremor. 
Ifa live distress of cattle be impounded 
in acommon pound-overt (that is open 
over-head) the owner must take notice of. 
it at his peril; and he, not the distreinor, 
must provide them with food and neces- 
saries: nay, if the distremor give them 
meat, he cannot compel the owner to pay 
for it;’and if they die for want of suste- 
nance, it is the loss of the owner, even 
after a tender and refusal of damages. 
(Doct. and Stud. Dial. 2c. 27. Bt Com. 
3. p. 18.) For the common law of Eng- 
land, which is ever wise in principle, 
though sometimes insensible to those re- 
finements which were, indeed, the growth 
of later ages, supposes that the owner will 
not fail to seek for and feed his beasts ; 
andif not, it punishes him with their loss, 
rather than impose the duty of maintain- 
ing them on the distreiner, who is already 
damaged by their trespass. 
Nor, it should seem, is the hayward of 
the pound obliged to feed them. For all 
pounds have not haywards; and when 
they have, they are officers in lects, and 
the law takes not any notice of them: 
and a pound is the pound of him that 
uses it; and if it be broken, he, not the 
hayward, shall have his remedy for pound- 
breach. (Per Holt, C. J.in Vaspor and Ed- 
wards’s Case, Hil. Term. 13. W. HIT.) For 
otherwise they would not perish for want, 
On impounding of Cattle. 
595 
as the law supposes they may when it ad- 
judges their loss to fall on the owner, if it 
so happen. Jt is however provided by 
the Stat. 1. and 2 P. and M. ¢, 12. that no 
distress of cattle shall be drivea out of 
the hundred where it is taken, unless to 
a pound-overt within the same shire, and 
within three miles of the place where it 1s 
taken; that the owner may know where 
to find and feed, and replevy the distress. 
If not owned or replevied, it 16 habla 
to be regarded as an eslray ; am which 
‘character it generally belongs to the lord 
of the manor as grantee of the crown. 
But for this purpose the cattle must be 
proclaimed in the church, and in two 
market-towns next adjoiing the place 
where they are found, on market-days ; 
and then ifvo man claims them, after pro- 
clamation and a year and a day passea, 
they belong to him without, redemption, 
He who takes an estray ought to find it 
victuals; and to provide that it doth not 
perish for want of good keeping; but 
otherwise if a distress. (Hil. 4 Jac. B. 
R. per cur. in Bagshaw and Gallard’s 
case). And if the owner claims them 
within the year and day, he must pay 
the charges of keeping and proclaiming 
them. Fromthe time, therefore, when the 
lord regards such beasts as estrays, it is 
not likely that they will be in want of food ; 
but this is not untilafter the first precla-. 
mation (ienly and Welch Il. Mod. 89); 
before which indeed they maydie. And 
though Holt C. J. in that case said that 
the keeping for which the owner must 
pay (if he redeems them) commences 
from the seizure; yet it must mean from 
the seizure as an estray, and not from the 
taking damage-feasant. 
For distress, and not sezzure, 1s the tech- 
nical word for the first taking; and Lolt 
in the same case said that the owner is 
subject to pay for ne more than a yeai’s 
keeping; which he might be, if it were to 
be computed from the impounding. Nay 
the law of distress and estrays is so diffe- 
rent, that he who takes a distress may 
not interfere with it even for its benefit, 
a3 to milk a cow; but as an estray he 
may. (Cro, Jac. 147, 148. 1 Roll. Abr. 
379. $ Danv. 282). Indeed the law pre- 
sumes an intervening time during wih 
the distress will want food, unless fur= 
nished by the owner; and it has ade 
judged to him the toss accordingly. 
It may happen, without the wilful de- 
fault of the owner, that, as a distress, his 
cattle may have been impounded several 
days without his knowledge; or a wealth# 
obstinate man may estimate their loss ée 
o 
