Animals-Distraint of treaspassing animal
Negligence-Distraint-Negligent use of distrained properly
Pledge-Pledgee-Right to use pledge

Tresspass=Trespass to goods-Distraint of horse damaging cultivation

Appellant's horse trespassed, and did damage on land cultivated by
respondent, Respondent found it there, seized it and attempted to take it

to the pound, which was situated at the Sheik's house, some" three miles -
away. The horse refused to be led by hand, .and respondent had no
saddle, bridle or halter available, nor any chance of procuring them within

a reasonable time, Respondent therefore mounted the horse bare-back
and rode' it to the pound. Appellant' dislovered this, and sued respondent
for damages for wrongful seizure and wrongful and negligent use of the
horse. In the court of first instance l'I. St.C. Peacock J. 'gave 'judgement
for respondent.

°Court: Wasey Sterry, Acting lC.On appeal

Held: (i) An occupier of land has a right to take possession of
animals found trespassing on his land and damaging his cultivation, and
to take such a distrained animal to a pound.

(ii) He may use all reasonable means of getting a distrained animal
to a pound, but must not be/negligent in doing so. What is reasonable
and what is negligent will depend on local circumstances and customs.
(iii) It is not necessarily negligent to ride a distrained horse bare-
. back to a pound, especially where there are no means available of leading
or saddling the horse .. But the horse must be ridden with the sole intent
of getting it to the pound.

( iv) The distrainer of property under such right of distress has no
right to use the distrained property, but riding an animal, where necessary.
for the sole purpose of getting it to a pound does not amount to a use
of the animal in . this. respect.

Appeal

The facts of the case appear sufficiently from the headnote and
the judgment.

February 14, 1914. Wasey Sterry, Acting J.e.: In my opinion
the appeal fails. There is no doubt that the respondent had a right
to distrain this mare when doing damge in his cultivation and to take
it to the place appointed for impounding, which was the Sheikh's
house. i It appears to me further that he is entitled to use all reason-
able means to get her there and on the other side that he must not
be negligent in doing so. What are reasonable means and what is
negligence must depend in part on the circumstances of time and
place and habits and customs of the people and their domestic _ animals.

If a man found a horse in his close on an English Farm it might
not be reasonable that if it refused to be led by the forelock that
he should get on its back without saddle or bridle to take it to a
pound two or three miles away, but then saddles, bridles and halters
are easily procurable on any English farm, and some stable or build-.
ing that may be used as a pound. None of these conveniences are
easily obtainable on a piece of rain cultivation in a wady in the Sudan,
nor are the habits and customs of men and their animals the same
as in England. I therefore hold that it was not unreasonable or
negligent for the respondent in the circumstances of the case to attempt
to exercise his right of pounding this mare by riding her without
saddle, bridle or halter to the pound.

It has been suggested in argument that a distrainer has no right