The Doctor and Student (1518)
Christopher St. Germain
If a man find beasts in his ground doing hurt, whether he may take and keep them
Doct. This question is made in the sum called summa rosella in the title of restitution, that is to say, restitutio 13, the ninth article: and there it is answered, that he may not take them for to hold them as a pledge till he be satisfied for the hurt; but that he may take them, and keep them till he know who oweth them, that he may thereby learn against whom to have his remedy. Is not the law of the realm so in like wise?
Stud. No verily, for, by the law of the realm, he that in that case hath the hurt may take the beasts as a distress, and put them in a pound overt, so it be within the said shire, and there let them remain till the owner will make him amends for the hurt.
Doct. What callest thou a pound overt
Stud. A pound overt is not only such a pound as is commonly made in towns and lordships, for to put in-beasts that be distrained, but it is also every place where they may be in lawfully, not making the owner an offender for their being there: and that it be there also, that the owner may lawfully give the beasts meat and drink while they be in pound.
Doct. And if they die in the pound for lack of meat, whose jeopardy is it?
Stud. If it be such a pound overt as I speak of, it is at the peril of him that owneth the beasts, so that he that had the hurt shall be at liberty to take his action for the trespass, if he will: and if it be not a lawful pound, then it is at the peril of him that distrained; and so it is if he drive them out of the shire, and they die there.
Doct. I put the case that he that owneth the beasts offer sufficient amends, and the other will not take it, but keepeth the beasts still in pound, may not the owner take them out?
Stud. No, for he may not be his own judge; and if he do, an action lieth against him for breaking of the pound; but he must sue a replevin, to have his beast delivered him out of the pound, and thereupon it shall be tried by twelve men, whether the amends that was offered were sufficient or not? And if it be found that the offer was not sufficient then he that hath the hurt shall have such amends as the twelve men shall assess.
Doct. If it be found by the twelve men that the amends were sufficient, shall he that refuseth to take it have no punishment for his refusal, and for keeping of the beasts in pound after that time?
Stud. I think no, but that he shall yield damages in the replevin, because the issue is tried against him.
Doct. I put the case that the beasts after the refusal die in pound for lack of meat, at whose jeopardy is it then?
Stud. At the jeopardy of him that owned the beasts, as it was before; for he is bound at his peril by reason of the wrong that was done at the beginning, to see that they have meat as long as they shall be in pound, unless the king’s writ come to deliver them, and he resisteth it; for after that time it will be at his jeopardy if they die for lack of meat, and the damage shall be recovered in an action brought upon the statute for disobeying the king’s writ.