In the case of Rust v. Low & al. cited in the argument, it is stated by Parsons C. J. in delivering the opinion of the Court, that “ at common law the tenant of a close was “ not obliged to fence against an adjoining close, unless by “ force of prescription ; but he was at his peril to keep his cat- “ tie on his own close, and to prevent them from escaping. “ And if they escaped they might be taken, on whatever land' “ they were found damage feasant, or the owner was liable to “ an action of trespass by the party injured.” And in another part of the same opinion, he adds, “ Every person may distrain “ cattle doing damage on his close, or maintain trespass against “ thé owner of the cattle, unless the owner can protect himself “ by the provisions of the statute.”
It would seem from the authority of this case, that the defendants were justified in distraining the sheep and lambs damage feasqnt, although the field of Ricker, and of the defendants, Vhcre the damage was done, was not inclosed with a legal and sufficient fence.
*410At common law, goods distrained were only in the nature of a pledge to compel satisfaction; and although the remedy by distress has been greatly enlarged and improved by statute in England, yet the common law, unless recently altered, still remains unchanged there, with regard to beasts taken damage feasant. This kind, of distress at common law, if the owner continued obstinate, did not produce satisfaction to the party injured. He had no right to sell the distress, and thus reimburse himself for the damage he had sustained. He was not permitted even to work or use a distrained beast. Cro. Jac. 148. And if he proceeded irregularly, he was deemed a trespasser ah initio. The sale of the sheep and lambs distrained in this case not being warranted at common law, the defendants must fail in their justification, unless they bring themselves within the provisions of Slat. 182!. ch. 128. By the sixth section, the party injured is authorized ,to impound cattle doing dam'age on his lands, “ that are inclosed with a legal and sufficient fence.” By the ninth section, power is given under certain limitations and restrictions to sell the beasts taken and impounded by virtue of that act. Ricker’s land not being inclosed with a legal and sufficient fence, the beasts seized by him and the other defendant were not taken by virtue of that act, and could not be sold under it. Their justification therefore failing both under the statute and at common law, according to the agreement of the parties, the defendants must be defaulted.