case jasper against EADOWES to trespass for a injury do to the plaintiff by  the defendant big a plea in bar that the plaintiff impound and detain the big  without say and still detain be good and the plaintiff be bind to keep the  thing distrain at his peril can reply that the big escape against his will and  consent from the pound but his remedy be by writ de Fate to break in pieces  trespass quare enclosed space to break in pieces and destroy his oat the  defendant confess the trespass which be commit b and plead in bar that the  plaintiff distrain the big for the trespass and he imparcavit et to hold off  the plaintiff by replication confess the take and impound of the big but that  it escape without his consent the defendant demurrer gold justice the plea be  nought not say that thus far to hold off and the replication be good without  say that the big escape without defaltu of the plaintiff and that judgement  ought to be for the plaintiff the plaintiff have his election either to bring  his action or distrain and though he distrain if the distress have die the  right of the action will have remain to the plaintiff a dr saint c hob a and  the reason be because the distress be in the nature of a pledge which may be  plead in bar so long as it be in the plaintiff possession but be once destroy  or eloined without his default the plaintiff action be revive if the big have  be rescue in carry to the pound he may pursue and retake it a bk of assize ass  pl see also Fitzherbert n b a and in such case it will be in his election to  admit himself out of possession or not b bishop and Jourdain v Montague cro  James b if the plaintiff have suffer the big to escape by his own consent the  trespass have be discharge but that shall have be show in the bar and the  plaintiff say it escape contra consensus modern report et will beside the bar  be have for not say et thus far to hold off if a to know facias be bring  against the bail on a judgement against the principal and the bail plead that  the defendant be in custody this plea be have without say he be still in  custody c rastal Ent c so it be regular true that you must aver that which  continue the wrong d yearbook Henry pl Henry pl d the replication be good to a  common intent and if any default be in the plaintiff it ought to have be show  by the defendant who be to have the advantage e Leon vent e if the defendant  have sue a replevin the sheriff may have return the special matter that the  big be dead or take away by the defendant or escape f bro Abr return Dalton  return f and therefore judgement ought to be for the plaintiff powys justice  at commonlaw a distress be only a gage and no satisfaction g bagshaw v goward  cro James see also foster v Jackson hob g but since the statute of will c it  be a satisfaction as to rend h Mod Mod h but as to trespass the commonlaw be  not alter I but see Geo c S I and the distress be so far a gage that be can do  anything for the better the distress and that be the reason that if a milk cow  be distrain the distrainer can milk her king roll and it be say that this case  in roll be better authority than the case of bagshaw v goward cro James see  also Noy Leon vent cro Elizabeth king nor can the distrainer modern report er  p tie the distress in the pound l roll Abr pl l for he can meddle far than  bare impound it it shall seem reasonable that the distrainer shall have far  indulgence in a public than in a private pound if cattle distrain for rend die  in the pound he may take a new distress m dyer hob yearbook Edward pl m but I  take it that in this case the plea be good and the replication have for he do  not say that the big escape without his default and it may very well escape  against his will or consent and yet by his default for suppose after the big  be impound the plaintiff open the door of the pound and the big slip out this  be against his will and yet by his default to the objection that the defendant  in his bar ought to have say et thus far to hold off I answer that the plea be  good to a common intent and I think better plead as it be for modern report be  set forth the truth and it may be dangerous to say et thus far to hold off for  the plaintiff may traverse it and it be enough for the defendant that the to  hold off be intend by the law and that judgement ought to be for the defendant  Turton justice the plaintiff have his choice of two remedy distress or  trespass and his election of the one be the rejection of the other levy per  distress be a good bar to debt for rend and for the same reason a good bar in  trespass a distress be no satisfaction but may be keep until satisfaction and  it be the plaintiff duty to keep the distress first because he have a choice  of his pound second he have a interest in the pound though in another man  ground for the pound be his pound and he only can have a Fate to break in  pieces and not his servant or the owner of the soil three if the plaintiff  have distrain dead good he must have put they in a pound covert that they may  be keep dry otherwise if they be spoil or abuse he be to answer for they a    light roll a whence it may be infer it be at the plaintiff peril to put the  distress in a safe pound and keep it in safe custody if the defendant have  take away the distress a Fate to break in pieces will have lie against he and  that be his only remedy and not a action of trespass it do not appear that the  defendant ever get his big again and it be unreasonable he shall suffer a  double punishment since he make no default and the plaintiff make his election  judgement ought to be for the defendant holt chief justice there be a time  when the plaintiff can not have this action namely while he have the distress  in his custody the defendant plea be a total bar ab origin if the plaintiff  will avoid this bar he must show the special matter that will entitle he to  revive his action and that he have not do to the objection that he have not  plead et thus far to hold off I answer that a bar be good to a common intent  and the plaintiff ought to show how the distress be lose for it must be  presume he can give the best account of it and perhaps he put it into a pound  that be out of repair but whether in a private or a public or a common pound b    light b it matter not for the law modern report have not appoint any such  thing as a common pound they be only by the agreement of lord and tenant and  so be haywards and keeper of pound the distress be for the benefit of the  distrainer wherever he impounds the pound be his and he only can have the Fate  to break in pieces and therefore the keep the distress be at his peril v in  the replication the plaintiff ought to show what become of the distress it may  escape through his neglect though contra will have the big die in the pound  overt the act of God will have revive the action as to the case of a replevin  it be not enough that it be good to a common intent for the rule be that  replevin must be good to a certain intent in general but a bar may be good to  a common intent so judgement be give for the defendant