From the facts, as stated in this case, it appears that the creatures impounded were the property of the plaintiff. Being found, damage "feasant, upon the premises of Randall, .they were driven by him to the public pound in Amherst, and -there impounded. An estimate of the damage done and of the fees and charges incurred was left with the defendant, who was pound-keeper of Amherst for that year, according to the provisions of § 3, ch. 137 of the Rev. Stat. The defendant, then, had at that time the legal control of the creatures, and an action of replevin could not be maintained against him while such legal control remained unimpaired, nor unless he in some way lost that control, and rendered himself liable by a departure from his official duties. The action of replevin cannot be sustained against a pound-keeper while the creatures are within his legal custody. It does not lie against him at common law. Co. Litt. 47, B.; Ib. 145, B.; 1 Chit. Plead. 159; Ham. 376; Pritchard v. Stevens, 6 Durn. & East, 522; Ilsley v. Stubbs,
But notwithstanding a pound-keeper when acting within the sphere of his official powers, and while keeping the property •within the custody of the law, is not liable to this action, neither at common law nor by statute, still he is not exempt from its operation when going beyond the powers which the law has granted him. He holds the property put into his custody, only by virtue of his official character, and when transcending the duties or rights of that character his legal protection ceases.
Towns are required, under a fixed penalty, to build and maintain good and sufficient pounds for impounding and restraining all creatures liable to be impounded. Rev. Stat. ch. 137, § 14. Such creatures must be impounded in the public pound, if there is any in the town, otherwise they may be impounded by the party taking up such creatures, in his own barn or. inclosure. Rev. Stat. ch. T37, § 2. And the particular course to be pursued, both by the pound-keeper and the person impounding, is set forth in our statutes with considerable minuteness. It is not necessary, however, to state all the details here. Fees are to be paid to the pound-keeper for food and drink. The amount varies according to the kind and number of the creatures. Rev. Stat. ch. 137, §§ 18,19. Notice is to be given to the owner of the creatures, if known, and if not known it is to be posted up in some public place in the town, and in two adjoining towns. This notice is required to contain a description of the creatures impounded, an estimate of the damage done, the amount of the fees and charges, and the place of impounding. Rev. Stat. eh. 137, § 4.
It will be perceived, that two places only are recognized by the statute as legal pounds: the public pound built by the inhabitants of the town, and, in case of no public pound, the barn or inclosure of the individual impounding. Any other impounding, therefore, would be a trespass. It will be observed, also, that the notice must state the place where the creatures are impounded. This is material as communicating to the owner where he may find his property. There is an object in having the
In this case, the creatures appear to have been properly impounded by Randall. No exception is taken to the primary proceedings. It is the course subsequently pursued by the defendant that renders him liable. On the 29th of September, the day of the impounding, it appears that he drove the creatures from the pound into his pasture, to feed; and also on the same day put them into his barn for the purpose of more conveniently furnishing them with food and drink. It is true that the case finds that both the pasture and barn were near the pound, but it is also true that they were in no way connected with the pound. And if the pound-keeper could drive them into one pasture, or •put them into one barn, for his convenience, there is no legal reason why he might not into another, and at a remote distance. Both acts were illegal and beyond his authority, and by them he lost all control over the creatures, and all protection from the law. Besides, the clause of the statute providing for compensation to the pound-keeper, for food and drink furnished the creatures, contemplates that it shall be given them in the pound. In most towns in the State, the sum allowed would be quite large for pasturage merely. Nor is it a sufficient answer to this action to say, that the plaintiff has not been damaged by the course taken. The action is not brought to recover for damages done to the creatures, but to obtain the creatures themselves; which are the property of the plaintiff, and which the defendant is seeking to hold. This the defendant endeavors to do, not by virtue
While the creatures were in the defendant’s barn, they were not in the custody of the law. The defendant had parted with their custody in removing them from their legal place of confinement. The plaintiff had, then, the right to take and drive them to his own inclosure, and the defendant had no power to retake them. All his acts subsequent to driving them from the pound, were illegal, and replevin can be maintained against them. The creatures from that time forth were not within the custody of the law, and his detention of them was wrongful. There must, therefore, be
Judgment on the verdict.