The plaintiff, therefore, can only recover for an irregularity in distraining and selling where actual damage is proved. For the original taking there is to be no action; the distrainor is to be considered as being in possession of the goods, notwithstanding a subsequent irregularity. And although he holds the goods with a special authority to deal with them in a particular way, and is liable for abusing that authority, yet the Act says that the tenant shall recover full satisfaction for the damage, and no more. Where, therefore, there is no special damage there can be no satisfaction, and a verdict for nominal damages is not sustainable. Wherever the damages are merely nominal the defendant is entitled to a verdict(f). Where, therefore, the plaintiff in his declaration complained of the sale of his goods within five days, and proved that they were sold too soon, but there was no evidence to show that he had sustained any damage thereby, it was held that the judge ought to direct a verdict for the defendant(g). But the statute, as we have seen, does not apply to cases where the original entry upon the premises was effected in an unlawful manner, as by breaking open an outer door, and where, consequently, no valid distress has ever been effected(h).

745 Keeping the distress without selling.—It has generally been considered that the words in the 2 Wm. & M. c. 5, "shall and may lawfully sell," mean that the landlord must give the statutory notice of the distress, and must proceed to appraise and sell, if the tenant does not replevy within the five days, or desire the landlord not to sell. If, however, the landlord should neglect to give notice of the distress, and to appraise and sell, but should content himself with keeping the goods in his hands, he will not be liable to an action for the detention or conversion of the chattels, unless the tenant can prove that he had gained a right to have the goods delivered up to him, and that he had sustained some special damage by the detention(i). The landlord has a lien for his rent upon the things distrained, and has at common law a right to keep them as a pledge until his rent is paid (ante, p. 633), and he can only be made responsible for not selling in an action founded upon the statute.

The landlord may, with the assent of the tenant, detain the things distrained, or convert them to his own use in satisfaction and dis

(f) Rogers v. Parker, 18 C. B. 112; 25 Law J., C. P. 220.

(g) Lucas v. Tarleton, 3 H. & N. 116; 27 Law J., Exch. 248.

(h) Attack v. Bramwell, ante, p. 655.

(i) West v. Nibbs, 4 C. B. 186. Glynn v. Thomas, 11 Exch. 870. Rodgers v. Parker, supra.

charge of the rent(k). But to obtain a title as against a third person whose goods have been distrained, there must be an actual sale. A taking of the goods by the landlord at the appraised value is not sufficient().

746 Indemnification of bailiffs.—We have already seen, that if a landlord employs a bailiff to make a distress on a tenant for rent alleged to be due from such tenant to the landlord, and it turns out that the landlord had no right to distrain, and the bailiff has to pay damages for the unlawful distress in an action brought against him by such tenant, the bailiff may maintain an action against the landlord for compensation(m).

A distress for rent affirms the continuance of the tenancy up to the day when the rent distrained for became due(n).

SECTION II.

OF DISTRESS DAMAGE FEASANT.

747 Seizure and impounding of animals and chattels damage feasant.— Every occupier of land has a right to seize animals and chattels trespassing upon and doing damage to his land, and to detain them until he is tendered or paid a fair compensation for the injury. The distress must be taken at the time the damage is done, for if the damage was done yesterday, 'and the distress taken to-day, that would be illegal(). "If, therefore, a man coming to distrain beasts damage feasant sees the beasts on his ground, and the owner of the beasts, or his servants, chases them out before the distress be taken, though it be of purpose to prevent the distress, yet the owner of the soil cannot distrain them; and if he doth, the owner of the cattle may rescue them, for the beasts must be damage feasant at the time of the distress. A man may, therefore, distrain cattle damage feasant in the night, for otherwise, perhaps the cattle will be gone before he can take them."

(k) Jones v. Sawkins, 5 C. B. 142.

(1) King v. England, 33 Law J., Q. B. 145.

(m) Rawlings v. Bell, 1 C. B. 959. Ibbett v. De La Salle, 6 H. & N. 237; 30 Law J., Exch. 44 (n) Cotesworth v. Spokes, 10 C. B., N. S. 103; 30 Law J., C. P. 220.

(0) Wormer v. Biggs, 2 C. & K. 31. Lindon v. Hooper, Cowp. 416.

"If a man takes my cattle and puts them into the land of another man, the tenant of the land may take these cattle damage feasant, though I, who was the owner, was not privy to the cattle's being damage feasant; and he may keep them against me until he has obtained satisfaction of the damages."

A commoner may justify the taking of the cattle of a stranger upon the land damage feasant. And if a man hath a right of common for ten cattle, and he puts in more, the surplusage above the ten may be distrained damage feasant. If many cattle are doing damage, a man cannot take one of them as a distress for the whole damage, but he may distrain one of them for its own damage, and bring an action of trespass for the damage done by the rest(p). If cattle get out of the close before the party coming to distrain has got into it, they cannot be followed and distrained when off the land (9).

The lord may distrain in respect of injuries done to his soil, and to his hedges, fences, and trees, although he has no interest in the herbage(r).

748 Right to distrain animals trespassing and doing damage on unfenced lands adjoining public highways.—If the owner of lands adjoining a highway is bound by a statute or prescription (ante, pp. 149, 327), to fence against the highway, and he neglects to do so, and cattle, while passing along the highway.under the care of the owner or his servants, stray therefrom into the adjoining land, and do damage there, the owner of such adjoining land, who has brought the mischief on himself by neglecting to fence, has no right to distrain the cattle, unless they are abandoned and left there by the owner or his servants an unreasonable time. And if a man who has land adjoining a highway plants tempting green crops close adjoining the highway, and neglects to fence them off therefrom, so that cattle being driven along the public thoroughfare are irresistibly invited to trespass on the adjoining land through the operation of the tempting food upon their natural instincts, the owner of such adjoining land who has so neglected to fence has no right to distrain the trespassing animals, unless the drovers who have charge of them fail in their duty in endeavoring to prevent them from trespassing and from continuing on the adjoining land(s).

Whilst cattle are lawfully passing along a highway the owners of the cattle are, as we have seen, using the highway according to the

(p) Gilbert on Distress, 4th ed., p. 22. Co. Litt. 161a. Bac. Abr. DISTRESS, F.
(g) Clement v. Milner, 3 Esp. 93. Wormer v. Biggs, 2 C. & K. 33.

(r) Hoskins v. Robins, 2 Wms. Saund. 327a.

(8) Goodwyn v. Chevely, 4 H. & N. 631; 28 Law J., Exch. 298. See ante, p. 213.

dedication of the owner of the soil, and, being there with his consent, they are occupying the highway; but if the cattle have strayed into the high road, and have passed therefrom into the adjoining close, they may be distrained there damage feasant, notwithstanding the owner of that close was bound to repair the fence between his close and the road, because the cattle were wrongfully on the road, and the owners were not occupying it so as to cast any obligation to repair the fence upon the distrainor, who is not bound to fence against trespassers(t).

If a landowner neglects to repair and maintain a fence which he is by law bound to repair, and by reason thereof his neighbor's cattle stray into his land, he has no right to distrain them damage feasant, as he is himself the occasion of the injury(u).

749 What things may be distrained damage feasant.-The right of the owner or occupier of land to seize and detain animals and chattels trespassing upon and doing damage to his land is restricted to such animals and chattels as are not in the actual possession and use, and under the personal care, of some human being(x). If a man rides upon my corn I cannot take his horse damage feasant, for that would lead to a breach of the peace(y); neither can I take a horse and cart away from a man who is actually driving it, nor a horse or a dog which a man is leading by a string, nor any animal which is under the immediate control of the owner(z). It is not enough, however, to exempt a dog from seizure damage feasant, to allege that the dog was in the possession and under the personal care of the plaintiff, for that may be so and yet the dog may be running about trespassing, and may not be under his immediate control. Where, therefore, to a plea justifying the seizure of a dog damage feasant, the plaintiff replied that the dog when taken was in the actual possession of the servant of the plaintiff, and was then under his personal care, and was being used by him, it was held that these allegations as applied to a dog were insufficient to establish such a possession and user as would exempt the dog from seizure. "The allegations," observes Patterson, J., "would be satisfied by proof that the dog was within sound of the servant's whistle, though the servant was out of sight"(a).

(f) Manch., Sheffield & Linc. Rail. Co. v. Wallis, 14 C. B. 213; 23 Law J., C. P. 85.

(u) Singleton v Williamson, 31 Law J., Exch. 17; 7 H. &. N. 410.

(x) Gilbert on Distress, 4th ed., p. 21. See ante, p. 644.

(y) 9 Vin. Abr. 121. DISTRESS, A., pl. 4.

(z) Field v. Adames, 12 Ad. & E. 649.

(a) Bunch v. Kennington, 1 Q. B. 680.

Shocks of corn may be taken damage feasant. If turves lie upon a common, damage feasant, a commoner may distrain them, but he cannot burn them. A greyhound may be distrained running after conies in a warren, and so may a ferret brought into a warren. If a man brings gins and nets through my warren I cannot take them out of his hand, but if men are rowing upon my water, and endeavoring with their nets to catch fish in my several fishery, I may take their oars and nets, and detain them as damage feasant, to stop their further fishing(b).

If domestic pigeons come upon land sown with corn, and eat up the corn, the occupier of the land is justified in shooting them, as he has no other means of taking them damage feasant(c).

750 Distress by railway companies of locomotive engines damage feasant.All railway companies have a common-law right to distrain engines and carriages encumbering their railway and obstructing the right of passage along the line; and the provisions of the Railway Clauses Consolidation Act, with respect to the introduction of engines upon the railway and the removal of improperly constructed engines, do not control or qualify this right, but give a cumulative remedy(d). 751 Tender of amends.—If the lord or his bailiff comes to distrain beasts damage feasant, and before the distress the owner of the beasts tenders sufficient amends, and the distrainer refuses it, the latter becomes a wrong-doer if he then distrains. Tender before the distress makes the distress tortious. Tender after the distress, and before the impounding, makes the detainer and not the taking wrongful. Tender after the impounding is of no avail, as the distress taken is then in the custody of the law(e). But tender in cases of distress for rent renders a subsequent sale unlawful, as we have seen, ante, p. 541.

The hazard of the sufficiency of the tender rests upon the wrongdoer whose cattle have trespassed, and not upon the party who has suffered by the trespass. If the latter, therefore, demands an exorbitant sum for compensation, that will not dispense with the necessity of a tender of a proper compensation, and will not relieve the owner of the trespassing cattle from the obligation of estimating and tendering, at his own risk, the proper amount of damage(f); for he, being

(b) Bac. Abr. DISTRESS, F.

(c) Ante, p. 329.

(d) Ambergate, etc., Rail. Co. v. Mid. Rail. Co., 2 Ell. & Bl. 793.

(e) Singleton v. Williamson, 31 Law J., Exch. 287. Thomas v. Harries, 1 M. & Gr. 695; 1 Sc. N. R. 524.

(f) Gulliver v. Cosens, 1 C. B. 795.