Damage feasant. Distress damage feasant is the taking by an occupier of land of chattels (commonly but not necessarily animals) (s) found encumbering or doing damage on the land. The right given by the law is therefore a right of self-protection against the continuance of a trespass already commenced. It must be a manifest trespass; distress damage feasant is not allowed against a party having any colour of right, e. g., one commoner cannot distrain upon another commoner for surcharging (t). And where a man is lawfully driving cattle along a highway and some of them stray from it into ground not fenced off from the way, he is entitled to a reasonable time for driving them out before the occupier may distrain, and is excused for following them on the land for that purpose. What is reasonable time is a question of fact, to be determined with reference to all the circumstances of the transaction (u). And where cattle stray by reason of the defect of fences which the occupier is bound to repair, there is no actionable trespass and no right to distrain until the owner of the cattle has notice (x). In one respect distress damage

(8) "All chattels whatever are distrainable damage feasant;" Gilbert on Distress and Replevin (4th ed. 1823), 49. A locomotive has been distrained damage feasant; Ambergate &c. R. Co. v. Midland R. Co. (1853), 2 E. &. B. 793; it was not actually straying, but had been put on the Midland Company's line with

out the statutable approval of that company.

(t) Cape v. Scott (1874), L. R. 9 Q. B. 269, 43 L. J. Q. B. 65.

(u) Goodwin v. Cheveley (1859), 4H. & N. 631, 28 L. J. Ex. 298. (x) 2 Wms. Saund. 671.

Damage feasant. In most of the states of the United States this subject is regulated by statute. Generally, the common law rule as to trespass by animals on uninclosed land has been declared inapplicable to the physical condition of this country, especially in the new and sparsely settled communities. See Sprague v. Fremont etc. R. Co., 6 Dak. 86; 50 N. W. Rep. 617; Frazier v. Nortimus, 34 Ia. 82; Oil v. Rowley, 69 Ill. 469; Ruyster v. Foy, 46 Ia. 132; Northcote v. Smith, 4 Ohio Cir. Ct. Rep. 565; Little Rock etc. R. Co. v. Finley, 37 Ark. 562.

The adoption of the stock laws is held to repeal the common law, in Eastman v. Rice, 14 Me. 419; Croker v. Mann, 3 Mo. 472; Mooney v. Maynard, 1 Vt. 470. Contra, Stewart v. Benninger, 138 Pa. St. 437; 21 Am. Rep. 159; Bulpit v. Mathews, 42 Ill. App. 561.

feasant is more favoured than distress for rent.

"For a rent or service the lord cannot distreine in the night, but in the day time: and so it is of a rent charge. But for damage feasant one may distreine in the night, otherwise it may be the beasts will be gone before he can take them" (y). But in other respects "damage feasant is the strictest distress that is, for the thing distrained must be taken in the very act," and held only as a pledge for its own individual trespass, and other requirements

observed (z).

The right of distress damage feasant does not exclude the right to chase out trespassing beasts at one's election (a), or to remove inanimate chattels and replace them on the owner's land (b).

Entry of distrainor. Entry to take a distress must be peaceable and without breaking in; it is not lawful to open a window, though not fastened, and enter thereby (c). Distrainors for rent have been largely holpen by statute, but the common law has not forgotten its ancient strictness where express statutory provision is wanting.

In connexion with distress the Acts for the prevention of cruelty to animals have introduced special justifications: any one may enter a pound to supply necessary food and water to animals impounded, and there is an eventual power of sale, on certain conditions, to satisfy the cost thereof (d).

(y) Co. Litt. 142 a.

(z) Vaspor v. Edwards (1701), 12 Mod. 660, where the incidents of damage feasant generally are expounded.

(a) Tyrringham's Ca., 4 Co. Rep. 38 b. (b) Rea v. Sheward (1839), 2 M. & W. 424.

(c) Nash v. Lucas (1867), L. R. 2 Q. B.

590. Otherwise where the window is already partly open: Crabtree v. Robinson (1885), 15 Q. B. D. 312, 54 L. J. Q. B. 544.

(d) 12 & 13 Vict. c. 92, s. 6; 17 & 18 Vict. c. 60, 8. 1; superseding an earlier Act of William IV. to the same effect. See Fisher's Digest, DISTRESS, 8. t. "Pound and Poundage."

Entry of distrainor. Agreeing with the text, vide, Williams v. Spencer, 5 Johns. 353; State v. Thackara, 1 Bay, 358.

A statute which authorizes a humane society to kill another's horse

Trespasses justified by necessity. Finally there are cases in which entry on land without consent is excused by the necessity of self-preservation, or the the defence of the realm (e), or an act of charity preserving the occupier from irremediable loss, or sometimes by the public safety or convenience, as in putting out fires, or as where a highway is impassable, and passing over the land on either side is justified; but in this last-mentioned case it is perhaps rather a matter of positive common right than of excuse (f). Justifications of this kind are discussed in a case of the early sixteenth century, where a parson sued for

(e) See p. 199, above.

(f) The justification or right, whichever it be, does not apply where there is only a limited dedication of a way, subject to the right of the owner of the soil

to do acts, such as ploughing, which make it impassable or inconvenient at certain times: Arnold v. Holbrook (1873), L. R. 8 Q. B. 96, 42 L. J. Q. B. 80.

summarily, without notice, is unconstitutional. Brill v. Ohio Humane Soc., 4 Ohio Cir. Ct. Rep. 358.

Trespasses justified by necessity, Certain necessities excuse acts otherwise wrongful. In the case of American Print Works v. Lawrence, (23 N. J. L. 604), the learning on this subject is collated and the court said: "The common law doctrine of necessity is one that is now too firmly established to be drawn in question, and yet, perhaps, necessarily from its character, it seems somewhat undefined as to its application and extent. It may, by the way, be remarked, that it is not less unquestionable as an established doctrine, because its origin so far as regards a justification at the common law, is only to be found in the illustrative arguments of the older authorities, and not in any direct adjudication. Its exercise must depend upon the nature and degree of necessity that calls the right into action, and which cannot be determined until the necessity is made to appear. The necessity must be immediate, imperative and in some cases extreme and overwhelming. Mere expediency or utility will not suffice." In this case the distinction is drawn between the limited rule that a person may protect himself or property when attacked, but not a stranger, and the broader rule, based on public good, that a person may protect the property of a stranger by destroying that of another where general destruction is impending, as a fire in a city. See Burton v. McClellan, 3 Ill. 434.

An entry on the land of another to save a boat from destruction was held to be not a trespass, in Proctor v. Adams, 113 Mass. 376.

A traveler on an obstructed highway may lawfully pass around the

trespass in carrying away his corn, and the defendant justified on the ground that the corn had been set out for tithes and was in danger of being spoilt, wherefor he took it and carried it to the plaintiff's barn to save it: to which the plaintiff demurred. Kingsmill J. said that a taking without consent must be justified either by public necessity, or "by reason of a condition in law"; neither of which grounds is present here; taking for the true owner's benefit is justifiable only if the danger be such that he will lose his goods without remedy if they are not taken. As examples of public necessity, he gives pulling down some houses to save others (in case of fire, presumably) (g), and entering in war time to make fortifications. "The defendant's intention," said Rede C. J., "is material in felony but not in trespass; andhereit is not enough that he acted for the plaintiff's good." A stranger's beasts might have spoilt the corn, but the plaintiff would have had his remedy against their owner. "So where my beasts are doing damage in another man's land, I may not enter to drive them out; and yet it would be a good deed to drive them out so that they do no more damage; but it is otherwise if another man drive my horses into a stranger's land where they do damage, there I may justify entry to drive them out, because their wrong-doing took its beginning in

(g) Cp. Littleton J. in Y. B. 9 Ed. IV. 35; "If a man by negligence suffer his house to burn, I who am his neighbour may break down the house to avoid the

danger to me, for if 1 let the house stand, it may burn so that I cannot quench the fire afterwards."

obstruction over the land of another.
Morey v. Fitzgerald, 56 Vt. 487; Carey v. Rae, 58 Cal. 159.

Campbell v. Race, 7 Cush. 408;

A person driving cattle along the highway commits no trespass by going on another's land to drive off escaping ones. Rightmore v. Shephard, 59 Hun, 620; 12 N. Y. S. Rep. 800; Hartford v. Brady, 114 Mass. 466; Coal v. Crommet, 13 Me. 250; Tonawanda R. Co. v. Munger, 5 Denio, 255.

Upon the right of a city council to destroy liquor in the city for the purpose of preventing a possible riot, see Jones v. Richmond, 18 Gratt.

a stranger's wrong. But here, because the party might have his remedy if the corn were anywise destroyed, the taking was not lawful. And it is not like the case where things are in danger of being lost by water, fire, or such like, for there the destruction is without remedy against any man. And so this plea is not good" (h). Fisher J. concurred. There is little or nothing to be added to the statement of the law, though it may be doubted whether it is now likely ever to be strictly applied. Excuse of this kind is always more readily allowed if the possessor of the land has created or contributed to the necessity by his own fault, as where the grantor of a private right of way has obstructed it so that the way cannot be used except by deviation on his adjacent land (i).

Foxhunting not privileged. At one time it was supposed that the law justified entering on land in fresh pursuit of a fox, because the destruction of noxious animals is to be encouraged; but this is not the law now. If it ever was, the reason for it has long ceased to exist (j). Practically foxhunters do well enough (in this part of the United Kingdom) with licence express or tacit.

Trespass ab initio. There is a curious and rather subtle dictinction between justification by consent and justification or excuse under authority of law. A possessor by consent,

(h) 21 Hen. VII. 27, pl. 5 (but the case seems really to belong to Hilary term of the next year, see S. C., Keilw. 88 a; Frowike was still Chief Justice of Com. mon Pleas in Trinity term 21 Hen. VII., ib. 86 b, pl. 19; he died in the following vacation, and Rede was appointed in his stead, ib. 85 b, where for Mich. 22 Hen. VII. we should obviously read 21); cp. 37 Hen. VI. 37, pl. 26; 6 Ed. IV. 8, pl. 18,

which seems to extend the justification to entry to retake goods which have come on another's land by inevitable accident; see Story, Bailments, § 83 a,

note.

(i) Selby v. Nettlefold (1873), 9 Ch. 111, 43 L. J. Ch. 359.

(j) Paul v. Summerhayes (1878), 4 Q. B. D. 9, 48 L. J. M. C. 33.

Hunting not privileged. The right to commit a trespass in pursuit of animals feræ naturæ does not exist. Glenn v. Kays, 1 Ill. App. 479. See Sterling v. Jackson, 69 Mich. 488; 37 N. W. Rep. 845.