Rescue and said, and deprived of the means of obtaining satisfaction therepound breach. of, and of the costs and charges of the said distress, and is likely to lose the same, to wit, at, &c. aforesaid. Second count for a pound breach. (c) * 296 For resening cattle taken damage-feasant.(e) And whereas also the said A B, on, &c. aforesaid, at, &c. aforesaid, by the said E F his bailiff in that behalf, had seized and taken divers goods and chattels, to wit, &c. in a certain barn, parcel of the said farm, with the appurtenances, as for and in the name of a distress for the said sum of . of the rent aforesaid so in arrear and unpaid as aforesaid, and had impounded and secured the *said goods and chattels in the said barn, (being the most fit and convenient part of the said demised premises for that purpose.) with intent to appraise and sell, and dispose of the said goods and chattels according to the form and effect of the statute in such case made and provided, (d) whereupon he the said CD on the same day and year last aforesaid, at, &c. aforesaid, with force and arms, &c. broke the said pound, and rescued the said last-mentioned goods and chattels, contrary to the form of the statute in such case made and provided. Whereby, &c. [state the damage as in first count, and add a count in trover, and conclude as ante, 238.] For that whereas heretofore, to wit, on, &c. at, &c. the said A B, by E F, his bailiff in that behalf, had taken in a certain (c) See the notes to the last precedent, and 5 T. R. 432. from which it appears that it is no answer to this action that the rent and costs were tendered after the distress and impounding. As to pound breach being indictable, see 2 Hawk. c. 10. s. 56. 4 Leon. 12. Gilb 75. Crown Cir. Ass. 299. Com. Dig. tit. Rescous, D. 3. (d) It is not necessary to state that notice of the distress was given, Ld. Raym. 170. Lutw. 214. (e) See Com. Dig. tit. Distress, D. 2, 3. and the precedents, & Wentw. In dex, 24. Lutw. 1259. Rescue and pound breach may be joined, Ld. Raym. 83. As to the venue F. N. B. 101. E. n. c. Bull. N. P. 63. The remedy for the rescue of a distress damage-feasant is, at common law, either by writ of res cous, Com. Dig. tit. Rescous, D. 1. or by action on the case for the consequential damage which is laid, neverthe. less, vi et armis, and may be joined with any other demand either in case or trespass, Lutw. 1259. Ld. Raym 83. 104. Tidd's Prac. 11. n. u. In an action for a rescue, as well as for a pound breach, it is usual to shew the cause of the distress; but in the latter case as the distress is but inducement to the action, and the breach of the pound is the gist of it, therefore it is not necessary to shew the cause of the distress, Ld. Raym. 105. Rast Ent. 444. * 297 close of him the said A B, situate at, &c. certain cattle, to wit, Rescue and &c. doing damage to him the said A B there, and was then and pound breach. there by his said bailiff in that behalf about to impound the said cattle for the cause aforesaid. Yet the said C D well knowing the premises, but wrongfully and injuriously contriving and intending to injure the said A B and to deprive him of the benefit of the said distress, afterwards, to wit, on, &c aforesaid, at &c. aforesaid, unlawfully and against the will of the *said AB, with force and arms rescued the said cattle, and took the same from the said E F, and thereby prevented him the said E F from impounding the same, as he otherwise lawfully might and would have done, to wit, at, &c. aforesaid; by means of which said premises he the said AB hath been and is greatly injured and deprived of the said means of obtaining compensation for the damage so done and doing, by the said cattle as aforesaid, to wit, at, &c. aforesaid. [If the declaration be framed in case, a count in trover may be added, and if in trespass, a common count for the damage to the land should be joined.] 1 For that whereas heretofore, to wit, on, &c. at, &c. when he For pound breach, cattle the said AB had then and there taken and distrained certain takendamagefeasaut.(f) cattle, to wit, ——, in a certain close of him the said A B, situate, &c. treading down, trampling upon, spoiling and consuming the grass growing in his said close, and doing damage. therein to him the said A B, and had impounded the said cattle in a certain common and open pound, in, &c. aforesaid, as a distress for the said damage, according to the law and custom of England, he the said C D, with force and arms, &c. afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, broke and entered the said common and open pound, and rescued and took away from and out of the said pound, the said cattle so impounded therein as aforesaid. Whereby, &c. [state the damage as in the last count, and add other counts as there directed.] (f) See the notes to the last pre- in trespass for damage-feasant, when cedent, 8 Wentw. Index, 24. Lutw. the action is against the owner of the 1259. Ld. Raym. 104. It is most cattle. nsual to join this count with a count For a rescue [As in the declaration for an escape, post, 299, 300 to the of a person end of the statement of the delivery of the writ to the sheriff, arrested on a mesne pro- * 299 and then state the sheriff's warrant and arrest and rescue as follows: And thereupon the said G H so being such sheriff as aforesaid, afterwards and before the return of the said writ, to wit, on, &c. last aforesaid, at, &c. aforesaid, made his certain warrant in writing, under his seal (h) of office, of sheriff of the said county of as aforesaid, directed to the keeper of the gaol of the said county, and to J K and L M the said sheriff's bailiffs, and thereby commanded them jointly and severally that they should take the said E F if he should be found in his the said sheriff's bailiwick, and safely keep him so that he the said sheriff might have the body of the said E F before our said lord the king, at Westminster aforesaid, on, &c. to answer the said A B in a plea, and to the bill in the said last-mentioned writ mentioned, which said last-mentioned warrant afterwards and before the return of the said writ, to wit, on, &c. aforesaid, at, &c. aforesaid, was delivered to the said J K and L M to be executed according to due form of law. By virtue of which said writ and warrant the said J K and L M before the time appointed for the return of the said writ, to wit, on, &c. and within the bailiwick of the said sheriff, to wit, at, &c. took and arrested the said E F by his body, and had him in their custody for the cause in the said writ and warrant mentioned. Nevertheless the said C D well knowing the premises, but contriving to injure the said A B and to deprive him of *the means of recovering his said debt, afterwards and whilst the said (g) See the precedents, 8 Wentw. Index, 24. S T. R. 127. Com. Dig. tit. Rescous, D. 2. Bac. Abr. tit. Rescue. If it be doubtful whether an actual arrest can be proved, a count should be added for obstructing the sheriff in making the arrest, F. N. B. 102. F. Com. Dig. Rescous, B. If the rescue be upon final process, the declaration should state the judgment-the ca. sa, and the delivery thereof to the sheriff, as ante, 147 to 149. and then the warrant-the arrest--and the rescue may be stated nearly as in the above precedent. See the precedents on final process, 8 Wentw Index. 24. It does not seem necessary in a declaration for a res cue either on mesne or final process, to state the warrant to the bailiff; it may be stated that the sheriff arrested the party, and that the rescue was from his custody, and this seems preferable. Cro. Jac. 242. 48. Com. Dig. tit. Rescous, D. 2. (4) It is not necessary to state that the warrant was under seal. Cro. Eliz. 53. Palm, 357. 2 Saund. 305, b.. EF was so in the custody of the said J K and L M as afore- Rescue of [Commencement as ante, 238.] For that whereas one E F heretofore, to wit, on, &c.(/) at, &c.(m) was indebted to the said A B in a large sum of money, to wit, the sum of . of lawful, &c. for(n) so much money by the said E F before that time For an escape cess.(k) on mesne pro * 300 (i) This allegation of the non-appearance of the defendant, does not appear to be necessary, 8 T. R. 127. Post, 501. n. (1). (k) See the precedents, 8 Wentw. Index, 33. 2 Saund. 150. Bac. Abr. Escape, F. G. When the escape is on mesne process, or where there has been no caption on final process, case is the only remedy, and the jury may give merely nominal damages, 1 Saund. 37, 38. n. 2. Ante, 147. n. (a), Bac. Abr. Escape, F. Where see the precedent in debt, and 2 Saund. 150. (7) In order to avoid an unneces sary statement of different days, it is advisable here to insert the teste of " the writ, or the day it issued, and the former is preferable, ante, 162. n. (h) and (i). (m) The venue is transitory, 1 Wils. 336. Plowd. 35. Dyer, 278. b. Bac. Abr. Escape, F. (n) It must be stated and prove.l that the plaintiff bad a cause of action against the party arrested, 4 T. R. 611. 2 Lev. 85. 2 Saund. 151. n. 1. 1 Saund. 38. It has been usual to state as in the above precedent, the subject For escapes, &c. *301 had and received, to and for the use of the said A B; and be ing so indebted, he the said E F in consideration thereof, afterwards, to wit, on, &c. aforesaid, at, &c. aforesaid, undertook and faithfully promised the said A B to pay him the said sum of. when he the said E F should be thereunto afterwards requested. But the said sum of . being wholly unpaid to the said AB, and the said promise and undertaking of the said EF, being wholly unperformed, he the said A B for the recovery of his damages by him sustained, on occasion of the not performing of the said promise and undertaking of the said E F, afterwards, to wit, on the day and year aforesaid, sued and prosecuted out of the court of our said lord the king, &c. [Here state the latitat or bill of Middlesex, and the indorsement for bail, the delivery to the sheriff, and the arrest, firecisely as ante, 162, 163. observing the notes. If the process were by original special capias, testatum, &c. or by capias in the common pleas, observe the precedents, ante, 166, 167. and after stating the arrest, proceed as follows:] Yet the said CD so being sheriff *of the said county of — as aforesaid, not regarding the duty of his office as such sheriff, but contriving and intending wrongfully and unjustly to injure the said A B, and to delay and hinder him in and from the recovery of his said debt, afterwards, to wit, on, &c. last aforesaid, at, &c. aforesaid, without the leave or license and against the will of the said A B, voluntarily(0) suffered and permitted the said E F to escape and go at large wheresoever he would, out of the custody of the said C D so being such sheriff as aforesaid, the said debt for which the said EF was so arrested as aforesaid, and every part thereof then and still being wholly unpaid to the said A B.† And the said matter of the debt; see a precedent, 1 Wils. 255. Ante, 82. n. (y), and as this latter mode gives the plaintiff more latitude in evidence, it is preferable to the above precedent. In an inferior court it should be stated, that the debt accrued within the jurisdiction, though the omission wil be aided after verdict, 8 T. R. 127. 2 Saund. 109. n. 2. 1 Saund. 74. n. 1. Bac. Abr. Escape, A. 1. (4) Under this allegation, a negligent escape may be given in evidence, 2 T. R. 126. Burr. 2814. 1 Saund 35. n. 1. |