case VASPOR against Edward refer to Lehain v Philpott l r ex if distress  escape the person distrain can bring trespass unless he show the escape be  without his default S c salk S c holt S c ld ray S c Mod S c Blencowes ms  trespass quare enclosed space to break in pieces and feed his grass with a big  the defendant as to all except the trespass by the big plead not guilty and as  to that that the plaintiff ought not to have his action for that he have take  the big do the damage and impound it in a common pound at I and there the say  big ex causan prd to hold off the plaintiff confess the take and impound but  that afterward the big without his consent and will do escape out of the pound  and upon this a demurrer this case depend a long time and be several time  speak to at the bar it be say to maintain the replication that a distress be  but a pledge a and if one be defeat of his pledge and have no remedy over he  shall have recourse to his original remedy for the thing for which the pledge  be take if one bail good as a pledge for money and the bailee be rob of they  he shall maintain a action for the money and here be no default in the  plaintiff for he can do no more than to impound it and he can not justify the  tie of it so as to secure it from escape vide ass pl and the whole default be  in the defendant first in do wrong to the plaintiff and again by not tender  amends whereupon he may have his hog again vide Inst and if the plaintiff be  defeat of his distress through the fault of the defendant he may distrain de  to make new as if a distress die in the pound overt for want of food the  distrainer may distrain de to make new vide die b hob Edward c ergo be may  also bring trespass if he please and if debt be bring for rend issue out of  land in the same county levy per distress without more will not be a good plea  but he must also make a special conclusion et such riens arriere so that the  take the distress and detain thereof be not the material matter but the rend  not be behind and where no such conclusion be the land be in another county  and then it will not be modern report material to make such special conclusion  because the rend be behind can be try by man of the county where the action be  bring Henry pl Henry pi Henry raze Ent   Ent to this it be say that in this  case the plaintiff have his choice to distrain or bring trespass and when he  have make his election and take a distress be shall never have recourse to any  other remedy till that remedy prove ineffectual through the act of God or the  wrong of the defendant neither of which have happen here and therefore the  case of the distress die in the pound for want of food that be in a pound  overt or die in any pound by any other chance without default of the  distrainer be not like this if the defendant have bring a replevin here the  sheriff must have return a elonga and can not return the escape vide Henry c  but be may return that they escape and come back to the owner vide Br title  return and here it do not appear that the big come back to the defendant again  which show the plaintiff be not discharge of it nor we Chargeable for the  trespass for which he be suppose to have a distress and for which if a  replevin be bring and a withdraw have be return as it ought to be a withernam  will go against the plaintiff of his own cattle and if this have be a case of  rend levy per distress will be a good plea for the meaning of that plea be not  that the money be actual pay for then nothing debet or riens arriere have be  the proper plea for the meaning of it be that the party have take a distress  and still have it as a gage for his rend and it be say the escape here be  through the default of the distrainer for he may have put the distress in a  safe pound which if it be break he have a remedy by a Fate to break in pieces  or if this be the common pound and not capable of hold the distress it be his  a see Leon that a distress be but a pledge note in ms modern report er p folly  to make use of it when he may put it into any other safe place and make that  his pound or perhaps he may have remedy against the lord for not maintain a  sufficient pound so that still he be at no prejudice or at least it be such a  one as come through his own default and then he may thank himself for it for  it be also deny that the distrainer can not tie the distress but it be agree  it will be at his peril if through such tie the distress come to any hurt for  then he must answer for it and the case of ass warrant no more for the  distress must be in a convenient pound and if it be not such and a distress be  put into it and abuse though it be modern report what be call a common pound  the distrainer shall answer for it and therefore if a live beast be put into a  place in which there be sharp spike by which the beast be stick though it be a  public pound the distrainer shall answer for it for it be his pound and it be  be shall have a Fate to break in pieces for the breach of it and not the lord  vide Doct Stud c and it be say there be but two sort of pound videlicet overt  and covert overt where the owner may come and feed they without be a  trespasser and covert where be can have such access if the cattle die in a  pound overt for want of fodder or without any default in either party the loss  be the owner which show that if they die through any default of the distrainer  as for want of food in a pound covert it be at his peril so of other default  as may be reasonable collect from the say book of Doct Stud where above and it  be say that a pound be not like a common gaol or a hayward like a gaoler but  only a common servant to all that use the pound to all which holt chief  justice strong incline and be add this diversity between rend and damage  pheasant for one may distrain any cattle be find on the premise for rend but  in the other they must be actual do damage and be only distrainable for the  damage they be then do and continue for if they have do damage today and go  off and come again at another time and be do damage and be take for that and  the owner tender amends for that damage the party can justify keep they for  the first damage and he say far that if ten head of cattle be do damage one  can take one of they and keep it till he be satisfy for the whole damage but  may bring trespass for the rest and be say that if distress be steal or set at  large by a stranger he shall not be answerable for it but even in that case if  replevin be bring and a elonga return as it must be there shall be a withernam  and the distrainer liable till he show that matter which be no default of his  will excuse he and the plaintiff in replevin may work beast take in withernam  because they be deliver to he in lieu of his own and when the matter be  determine if it go for the plaintiff in replevin be shall have judgement for  the beast in withernam if his own be not to be have but if it be for the  defendant be shall have his beast again and may keep the distress till he be  satisfy and when one distrain damage pheasant he have a adequate satisfaction  for his damage till be lose it without default modern report in himself for  when he have return irreplevisable be can have no other satisfaction but to  keep the distress till he be satisfy and damagefeasant be the strict distress  that be for the thing distrain must be take in the very act for if they be  once off though on fresh pursuit you can distrain they if tender be make of  damage before the take the take be unlawful if after the take and before  impound then the detainer after be unlawful but tender come too late after the  impound to make either the take or detain unlawful but still after the impound  the distrainer may take the amends and let go the distress if he please and if  a beast have do more damage than he be worth let he not distrain but rather  take his action and before the statute of Henry c no damage be give in avowry  for damagefeasant but only a return irreplevisable of the thing distrain and  now this term after great consideration the court deliver their opinion  seriatim gold puisne judge the plea in bar be have and the replication good if  the distress have die in pound though after judgement irreplevisable be may  distrain anew or bring his action for it be as Hobart say the effect of the  agreement of the party or act in law hob Edward Doct Stud c for the party have  the good as a pledge and as long as that continue he shall not have any other  remedy but once it cease to be a pledge his action be restore to he and it be  in modern report er p his election whether he will retake his distress or  bring his action of trespass if the owner break the pound and let distress go  the distrainer shall have a Fate to break in pieces or may retake the distress  Inst Henry if one distrain and as he be drive to pound they escape I may  pursue and retake they or bring trespass and the reason be the same here if  distress escape out of pound the party may retake he ass pl but he can tie for  that will be a misuser and will amount to a conversion if the distrainant  suffer the distress to escape by his own consent he discharge the trespass or  if the defendant have allege any default in he that perhaps will alter the  case so that he conclude the replication be good and the plea be have it be  that nomin severity be take and impound but that be not enough for he shall  have say far that he still do detain the distress if a to know facias be bring  upon a judgement and the defendant plead that he have be take in execution  that will not be enough without say far that he still continue in modern  report execution raze Ent where a distress for rend be so plead and show to  continue so here as long as it be show that the plaintiff have a gage or  pledge so long it be a bar but the minute that gage cease against the party  will the action revive and in all case where one plead a plea which to be good  must be continue there he must show the continuance as Henry Henry as if a man  make title under tenant for life be must aver his life Yelv and he hold the  return in replevin in this case may be make of the special matter as well as  if the distress have die in pound or escape and come back to the owner which  may well be do vide Br return of writ dalt Ret short catalog powis justice it  will be of dangerous consequence if cattle take damage pheasant shall escape  out of pound without default of he who do distrain and that he thereby shall  become remodels for a distress whether for rend or damage be but a gage cro  and they can not be sell at commonlaw even in the case of rend nor now for  damagefeasant and the distrainer can use they though it be for their good and  therefore be can tan green bide to preserve they cro Elizabeth nor milchcow to  preserve their milk or save they from hurt roll Abr though it be allow cro  that cow may be milk to prevent their be spoil but I take roll to be law then  if it be a gage it be a gage for satisfaction and if that be never make why  shall the party have no remedy if there be no default in he for it be as true  a rule that one shall be satisfy once as that he shall not be satisfy twice if  cattle distrain be put in pound overt the owner at his peril must feed they  and if they die the distrainer shall bring his action or distrain again die  Inst Doct Stud and the reason of that be because be lose his pledge without  fault in he another reason why he ought not to lose his remedy be because be  can otherwise secure they than by impound for he can tie they vide ass where  sup so if they be steal out of the pound overt he be not liable nor remodels  but if he shall put thing into the pound overt which be not proper to be put  there and they be steal he shall answer for they but if they be proper for  pound overt the owner must keep they from thief as from starve Inst b if  distress be steal out of pound and withdraw be return the distrainer to  prevent a withernam may show that modern report they be steal Henry b Br Ret  short catalog nat b and some book say the sheriff may return it if the cattle  die in pound be may distrain in case of rend or bring debt ergo if they die in  case of damagefeasant be may bring trespass Edward die hob Doct Stud c f but  notwithstanding all this the action will not lie here for want of this  material word in the replication that the distress escape without default of  he for it be not enough his gage shall be lose without his consent but it must  be without his default too to entitle he to a action and be hold the plea good  though the word thus far define be want for it be a plea in bar and good to a  common intent Turton justice the plea be good the plaintiff have his election  of two remedy trespass or distress and use of one be a utter waiver of the  other   sir Roland Haywards case   and hob a election of one be a imply  rejection of the other and distress sufficient to satisfy the rend be a good  plea in modern report er p bar to debt for the rend so by parity of reason in  trespass and be concur with powis that the replication be have for the cause  above and here be defect in the plaintiff to put the distress into such a  pound when he may put it into a safe as everybody must know be may have do for  a common pound of a manor can be look upon safe for a big so be conclude  against the plaintiff holt chief justice I always be of the opinion that now I  be of that judgement ought to be for the defendant for it be plain there be a  time when the plaintiff can not have maintain this action videlicet when the  distress be take then the defendant have plead this matter which do take away  the action and so a matter be plead which show the plaintiff have not a  original cause of action and if the plaintiff will admit the truth of that  matter he ought to show some special subsequent matter whereby he be now  become entitle to that action whereof he be original oust by the plaintiff  plea or remove the matter that be make a bar to he and here the take the hog  damagefeasant be prima fancy a bar of the action and it be agree that if  distress be take damagefeasant as long as it be detain it be a good bar in  trespass but it be object that it be not show that the hog be detain still but  sure a bar be good to a common intent and it be enough for he that be distrain  to show a distress modern report take and it behoof the other side to show how  the possession of it happen to be lose and since he have lose possession he  know best how if he have show that the defendant have take it out of pound it  may be somewhat or even that it escape out of pound and run home to the  defendant and that he come upon fresh pursuit to take it and have be hinder by  the defendant and sure it be the default of the defendant that he put it in a  ill pound sure none will say that if a hog be put into such a pound as can  keep it and then it escape that he can afterward bring trespass and it be a  common pound make not to the case for be the pound common or not it be the  pound of he that use it for that time and the law do not require a man to put  the distress in a common pound but only that it be put in a pound overt or be  feed at peril of the distrainer and take care of by he and common pound be  either by custom tenure or agreement among the inhabitant of a will or manor  and not by commonlaw but if there be a common pound and one will use it he  must take care to keep it and if it be break be shall have a Fate to break in  pieces though it be another man pound as in another man close which show it to  be the pound of he that use it as such then he ought to keep his pound or if  it be out of repair and he put cattle in it and they escape be it reasonable  he shall take advantage of his neglect sure it be not for the ditress be for  his benefit and the law appoint none else to take care of it and though some  pound have haywards who be officer in leet yet the law take not any notice of  they and to say that he do not show in the bar that the plaintiff do detain it  yet it may be he do not detain it for suppose it be replevied the plaintiff  way will be to avow and pray return for the damage and if pen the matter upon  the replevin this action be bring will you have it set forth in plead this  matter that be still detain the hog that will be false in fact so the plea  prima fancy be good till it be avoid as levy per distress et such nothing  debet and though the precedent in rastall be et thus far to hold off yet that  be no matter triable but the take the distress be what be triable and so it be  there for if a man distrain for rend or damage pheasant upon replevin he must  justify the take and not the detainer and then if upon the avowry it appear  that he have good cause he shall have return if the distress be eloined or  embezzle there shall go a withernam upon that matter modern report return on  the retorno habend so if there may be a replevin whereby the plaintiff will be  dispossess of the distress till return that will discharge the action and when  it be plead that he distrain the cattle it shall be intend that he have they  still or that there be a replevin pen or if it be otherwise it ought to come  of the other side for if the distress be take from he by replevin as it well  may be that will not revive the action of trespass if it escape through his  own defect or neglect that will not revive the action and here be once have  the distress in his possession and be best able to give a account of what be  become of it and if be do not show that he have lose it by some mean whereby  the action be revive it shall be modern report er p intend to continue  discharge and here it do not appear how the escape be but only that it be  without the consent and will of the plaintiff and all that may be and yet be  through his neglect and if so the action not revive and suppose the door of  the pound have not be lock who fault be it be it not the fault of the  plaintiff who ought to have shut it so the defendant have show a distress  which be prima fancy a discharge of a action of trespass then the plaintiff  ought to show how it come to be revive if cattle die in pound it be true the  action be revive why because it be the act of God sure then there be a great  difference between the death of the distress in the pound without the default  of the distrainer and a escape of they which must happen through his default  and be take so till he show the contrary and the difference between a escape  of a distress out of pound through neglect or other default of the distrainer  and without his default be so material that in one case the action of trespass  c shall be revive and in the other not and I always beard a bar be good to  common intent because it be to excuse from a charge but a replication must  have a general certainty because it be to destroy the excuse of the defendant  which be always receive favourable and judgement be give for the defendant