*Entry upon Lands to Repossess them. Of the same na- [*57] ture as the right of recaption is the right which the owner of lands has, when another is wrongfully in possession thereof, to re-enter when he may do so peacefully, and thereafter to exclude the wrong-doer therefrom. This right may exist either where one has gone into possession without right, or [*58] where one, having had an estate in, or at least lawful possession of the lands, has had his right terminated by operation of law or by the act of the owner. The chief restraint upon this remedy is sufficiently indicated by what has already been said; it must be had in a peaceful manner, and an actual possession,

though wrongful, must not be subverted by the employment of force.'

Distress of Cattle Damage Feasant. If the cattle of one man stray upon the lands of another, thereby causing him damage, he may distrain and hold them until the damage is estimated and satisfied. This is a common law right, and is regulated by statute. The distress consists in taking the cattle into custody while they are still upon the lands, and impounding them until satisfaction is made. For the protection of the owner, notice to him of the distress is required, and if the compensation is not agreed upon, disinterested appraisers are chosen to assess it. The detention of the cattle is only for the purpose of indemnity, and they must be surrendered when satisfaction is made. In the meantime the distrainer must feed and care for them properly; but if they die or are injured or lost, without his fault, the loss must fall upon the owner."

The right to distrain cattle damage feasant may be affected by statutory regulations making it the duty of the owner of the land to enclose his premises with a fence sufficient for their protection. Where adjoining owners are required by law to construct and maintain respectively a certain portion of the partition fence between them, aud one neglects this duty and the cattle of the other enter his premises in consequence, he is precluded from maintaining an action, because the default from which the

injury flows in his own. But as the obligation in such a [*59] case is only imposed for the protection of those whose beasts may be lawfully on the adjoining lands, if cattle tres

See post, Ch. X.

2 Pettit v. May, 34 Wis. 666; Taylor v. Welbey, 36 Wis. 42; Mosher v. Jewett, 59 Me. 453; S. C. 63 Me. 84; Rust v. Low, 6 Mass. 90: Melody v. Reab, 4 Mass. 471; Eames v. Salem & Lowell R. R. Co., 98 Mass. 560; Ladue v. Branch, 42 Vt. 575. Property cannot be distrained which, at the time, is in the actual possession of the owner. Storey v. Robinson, 6 T. R. 138; Field v. Adames, 12 Ad. & El. 649. The statutory lien may be waived and an action brought against the owner. Prather v. Reeve, 23 Kan.

627; Keith v. Tilford, 12 Neb. 271; Triscony v. Brandenstein, 66 Cal. 514. If an animal taken damage feasant is let go, it cannot afterward be taken taken for that act. Buist v. McCombe, 8 Ont. App. 598. If the owner refuses to pay the damage claimed and neglects to have a statutory appraisement, trover will not lie for refusal to deliver. Norton v. Rockey, 46 Mich. 460.

Shepherd v. Hees, 12 Johns. 433; Colden v. Eldred, 15 Johns. 220; Stafford v. Ingersoll, 3 Hill, 38; Cowles v. Balzer, 47 Barb. 562; Tonawanda

1

pass upon such adjoining lands, and from thence pass upon the premises insufficiently fenced, the owner of such premises is not precluded from a recovery of his damages.'

Distress of Goods to Compel Performance of Duty. In several cases where an obligation, owing to a party, remained unperformed, the common law permitted him to enforce performance by seizing the goods and chattels of the party in default, and holding them until performance. If performance was not made in reasonable time after seizure, it also permitted him, under proper regulations, to sell the distress. The most common of these cases was that of the non-payment by a tenant of his rent; and this is the only one which has any place in the law of this country. All movable articles which are the subject of property are liable to be seized for rent, including even the chattels of other persons which chance to be in the tenant's possession with the owner's permission; but with this important exception, that articles held by him in the way of trade such as goods of a guest in possession of an inn-keeper, and goods in the hands of a mechanic to be made up or repaired, are privileged for the encour agement of business. And whatever is for the moment in the personal use of the tenant is also, while so used, privileged.' And

R. R. Co. v. Munger, 5 Denio, 260; Akers v. George, 61 Ill. 376: Milligan . Wehinger, 68 Penn. St. 235; Griffin . Martin, 7 Barb. 297; Roach v. Lawrence, 56 Wis. 478; Mann v. Williamson, 70 Mo. 661: D'Arcy v. Miller 86 Ill. 102. As to liability where only part of the plaintiff's fence is lawful, see Noble v. Chase, 60 Ia. 261. That stock is prohibited from running at large does not relieve one of the duty of fencing. Duffees v. Judd, 48 Ia. 256. Nor that owner knows his animal is vicious. Runyan v. Patterson, 87 N. C. 343. Nor that cattle came upon land from unenclosed field. Fillmore . Booth, 29 Kan. 134. The rules of liability are the same where fence is maintained, under agreement in part by each owner. Scott v. Grover, 56 Vt. 499; Baynes v. Chastain, 68 Ind. 376; Hinshaw v. Gilpin, 64 Ind. 116. See Dent v. Ross, 52 Miss. 188, and cases p. *339, post.

1 Lord v. Wormwood, 29 Me. 282; Lyons v. Merrick, 105 Mass. 71; Johnson v. Wing, 3 Mich. 163, and cases pp. *339-40, post. Statutes on this subject do not usually go further thaL to take away the right of action where the owner of lands neglects to enclose them with a proper fence and they are trespassed upon in consequence. He may, therefore, dispense with a fence if he sees fit to leave his premises open to cattle lawfully on the premises which adjoin them. Aylesworth v. Herrington, 17 Mich. 417. As to liability where cattle run at large in an enclosure occupied in common by two or more. See Mont gomery v. Handy, 62 Miss. 16; Cole v. State, 72 Ala. 216.

2 See 1 Bl. Com. 8, and notes. Home Sewing Machine Co. v. Sloan, 87 Pa. St. 438; Kleber v. Ward, 88 Pa. St. 93: Kennedy v. Lange, 50 Md. 91; Bird v. Anderson, 41 N. J. L. 392.

now, by statute, in this country, this right of distress is in the main taken away; and where not taken away, it is regulated by statute. A consideration of it does not properly belong to our subject.

From the foregoing statement of the law it will appear that the privilege of redressing one's own wrongs is not to any great

extent permitted to individuals; indeed, the State cannot [*60] afford *to clothe individuals with its own powers for the

purpose of enforcing its laws according to their own judg ments, especially when in enforcing the laws they would only be judging of and redressing their own grievances. Order is no less the law of human governments than of the divine government, and individual convenience must be subordinated to it. The cases which are above mentioned are in the main to be regarded as cases in which the individual is permitted to act on his own behalf, in order that he may prevent a mischief already begun from becoming more serious. He interposes obstructions to the lawless conduct of others, he protects his person, he reclaims his property; but only on the condition that he can do so without a breach of the public peace; and he abates a nuisance on the same terms. But to obtain redress for any wrong done him he must invoke the assistance of the law.

Nature of the Legal Redress. The redress the law will give will be suited to the injury suffered. If one's land is taken from him, he shall have the proper writ for its recovery. If personal property is taken which he prefers to recover rather than have judgment for its money value, he may demand back the thing itself. But the principal remedy, and for the most part the only available remedy which the law can give for a wrong, is an award of money estimated as an equivalent for the damage suffered.

How One Becomes a Wrong-Doer. The ways in which one may become liable to an action as for tort are the following: 1. By actually doing to the prejudice of another something he ought not to do.

2. By doing something he may rightfully do, but wrongfully or negligently doing it by such means or at such time or in such manner that another is injured.

3. By neglecting to do something which he ought to do, whereby another suffers an injury.

The first is the active wrong; the others are usually the wrongs of negligence.

The active wrong may be done by the party in person, or it may be done by some other person for whose conduct generally or under the particular circumstances he is responsible. He is always responsible for the conduct which he counsels, advises or *directs, and for whatever naturally results from [*61] his counsels. That is his wrong which he thus accomplishes through another. Without more than a passing allusion in this place to rules which will receive attention hereafter, it may be stated that the common law holds the husband civilly responsible for the conduct of his wife, the two in law being considered as one person for the purposes of legal redress. They are to be joined in the suit, but the judgment, if one is recovered, may be collected of the husband, and it is immaterial that he never advised the wrong, or that it may have been unknown to him, or against his will. The idea underlying this doctrine is, not that the husband is necessarily in fault, but that the interests of society are best subserved by maintaining the principle of marital unity. Another case of responsibility for the acts of others is that of the master, who, in general, must redress all wrongs negligently committed by servants or others to whom he may have entrusted his business, and who is also responsible for their active wrongs, such as frauds and deceits, which are committed in the line of his business and with his actual or presumed anthority. So the magistrate may be responsible for illegally setting the constable in motion; the plaintiff who is back of him may be responsible for the acts of both; the sheriff may be holden for the conduct of his deputy, and so on. If the position of the parties is such relatively that the particular act must be considered as having been, in contemplation of law, advised, counseled, or procured to be done by another, it may be treated as the tort of the party who thus counsels, advises and procures, and he is liable as if he had done it in person.

The wrong may also be done by one person or by several, but when by more than one, it is the several act or neglect of all. It may also be suffered by several, where they have joint interests which are invaded, as where they are joint owners of property, or are partners.