Jurisdictions, Part 123
Pound overt.
For that that in the 15th Article of the Charge, it is to be enquired, if any Diſtreſſe put into the Lords Pound be taken out without Authoritie, for that let us ſee ſome things touching open Pounds.
SEveral paſture of one, is provided for the time, though it be not an open Pound, for that is adjoyning to the Kings high way, which is called an open Pound. 5 H. 7. fol: 9
If a man diſtrain his tenant in Fee, for life, or yeers, for Rent, he cannot impound in the ſame Land where he takes the Diſtreſſe: but for dammage doing he may. 21 H. 7. fol: 39.
By Choke. If one take Beaſts in the name of Diſtreſſe, he ought to put them into an open Pound, for that, that he which is diſtrained, may give to them ſuſtenance, otherwiſe he cannot give them meat. But if he diſtrain dead chattels, I may put them where I will; but if they ſpoil in my default, I muſt anſwer for them. 9 Ed. 4. fol: 2. B.
If Diſtreſſe be taken out of the open Pound of the Lords of the Town, he which diſtrains ſhall have a (Parco fracto) and not the Lord; and the remedie for the Lord is preſentment in the Court Baron. 21 Ed. 4. fol: 19. Fitzh: 100. G.
Where one diſtrains (doing dammage) or for Rent, or ſervice, and impounds them in the common Pound, or in another Pound or place which is a lawfull Pound, and an other takes them out, he which diſtrained ſhall have a Writ called (Parco fracto) of that taking out of the Pound. The ſame Law is if they were impounded in a Cloſe of his freind by his licenſe, and are taken out, he which diſtrained ſhall have a (Parco fracto) and his freind Treſpaſſe, why by force of arms he broke his Cloſe. Fitzh: 100. E.
If Diſtreſſe be put in open Pound, and they dye, it is the loſſe of the owner: but if they be put in another place, it is not ſo. And though ſufficient amends be offered, yet he cannot take the Diſtreſſe out of the Pound, but ought to ſue a Replegiare; And then if it be found that ſufficient was tendered, he ſhall recover dammages for the refuſall. But if the Diſtreſſe dye in open Pound, though ſufficient amends were offered, yet it is to the loſſe of the owner, ſo that he ought to give to them ſuſtenance. Doctor & Student fol. 113.
If Diſtreſſe taken, doing dammage be put in a Pound, the Defendant may juſtifie that he hath Common in the place where the taking was, and made freſh ſuit, and came to the Pound, and there he found that unlockt, and took his Beaſts, this is lawfull upon freſh ſuit, and being unlocked. So it ſeems in all caſes, where the Diſtreſſe is taken without reaſonable cauſe upon freſh ſuit, and Pound unlocked, the owner may take them out of the Pound. 30 Ed: 3. fol: 171.
3 H. 6. fol: 15. Defendant in Replegiare may ſay, that he put the Beaſts in open Pound, and there they dyed, and he ſhall not wage deliverance.
5 H. 7. fol: 9. If the Defendant in Replegiare take beaſts and drives them away, and doth not put them in an open Pound, and they die, this is not in default of the Plaintiffe; But if he put them in an open Pound, within the County, it is not to be ſaid that they are conveyed away; but the Plaintiffe at his perill is bound to take knowledge where they are, and to give them meat.
39. H. 8. Tit: diſtreſſe 6. He which diſtaines beaſts may put them in a cloſe houſe, if he will give them meat, for the putting them in open pound, is but to the intent that the owner may give them meat. 1 & 2 Phil: and Ma: chap. 12. tit. Diſtreſſe, That no diſtreſſe ſhall be driven out of the hundred, unles to the open Pound, nor above 3 miles, and one diſtreſſe ſhall not be impounded in ſeverall pounds upon forfeiture of 5 l. And for poundage of an Intire diſtreſſe a man ſhall not take above 4. d. poundage.
20. H. 7. fol. 1. Where the Lord deſtraines beaſts and they are taken out of the Pound, the Lord ſhall have a (Parco fracto) and the party may have treſpaſſe, for the property lies in him by Forwick.
Fitzh. 101. Where a man diſtraines for doing dammage, Rent, or ſervice, and puts them into the common Pound or into an other lawfull Pound, and he which owes the beaſts or another perſon takes them out of the Pound, then he which diſtrained, ſhall have a (Parco fracto) and if a man ſend his ſervant to diſtrain for rent or ſervice, and the ſervant diſtrain and put them into the Pound, and a ſtranger takes them out of the Pound, now the Maſter ſhall have a (Parco fracto) for it is the pound of the maſter, 21. Ed. 4. fol. 19.
Fitzh. 101. E. if a man diſtrain for Rent, doing dammage, or ſervices and puts the beaſts in the ground or cloſe of another his friend by his licenſe, and he which ows them takes out the beaſts, he which diſtrained ſhall have a (Parco fracto) and not he which hath the cloſe.
Fitzh. 101. H. For amercement in hundred one cannot diſtraine, but the proper goods of him that is amerced, & not others, but for rent or ſervice is otherwiſe, for the party may diſtrain the beaſts, found in the Land which are riſing and lying and Impound them.