168 A. 554 | Vt. | 1933
This is an action in which the plaintiffs seek to recover for the wrongful conversion of certain cattle. The defendants filed a plea called in the record an avowry, although incorrectly, because the action is not replevin, [Gould on Pleading (4th ed., ch. IV, § 104)], which alleged in substance that the cattle were found damage feasant in the enclosure of the defendants Godbout, in the town of Walden; that they took the animals and inquired of the selectmen of the town whether there was a pound therein, and were informed that Fred Allen and H.L. Gilman were the poundkeepers; that they applied to these two, and each informed them that he was not a poundkeeper and refused to take the cattle; that they then again consulted one of the selectmen, who directed them to impound the cattle at the barn of defendants Raoul Maurice and Joseph Bolduc, which they proceeded to do; that within twenty-four hours thereafter they left a written notice at the dwelling of the plaintiff Harvey Dunbar, stating the place of impounding and the time and place of appraisal of the damages as required by G.L. 6672; that the plaintiffs did not appear within twenty-four hours, and the defendants Godbout applied to a justice of the peace to appoint appraisers, which was done and the appraisal made, pursuant to G.L. 6675 and 6676; that the plaintiffs did not, within forty-eight hours replevy or redeem the cows, as provided in G.L. 6677 and 6678; and that thereupon pursuant to G.L. 6678, 6679, and 6680, the defendants Godbout advertised the cattle for sale by posting a notice six days prior to the sale in a public place, stating the time and place of the sale, and giving the description of the animals, and also sent a registered letter of notice to Harvey Dunbar; that, on the day appointed, the cattle were sold at public auction and the proceeds applied as directed by G.L. 6681 and 6682. The plaintiffs demurred to *451 this plea; the demurrer was sustained and the case is before us on the defendants' exceptions.
The first ground of demurrer is that the plea does not allege that there was no legal pound in the town of Walden, and, hence that the impounding in the barn of defendants Maurice and Bolduc was an unlawful taking and detention of the cattle. Each organized town is required, by G.L. 6668 to keep, at its expense, one, two, or three good and sufficient pounds, and, by G.L. 6669, it is subjected to a penalty if it does not do so. It is the duty of the poundkeeper to receive and keep the beasts brought to him, without regard to the legality of the impounding. Mattison v.Turner,
It appears by the bill of exceptions that, after the ruling upon the demurrer, the issue of damages was submitted to a jury. The bill states: "It was then agreed, in view of the fact that the jury had been summoned, that the trial should *452
proceed solely on the question of the value of the cattle, which was done, so that, if the plaintiffs prevailed in their demurrer, an additional trial would not be required. The jury brought in a verdict for plaintiffs to recover ninety dollars ($90.00). Judgment was then rendered for the plaintiffs to recover from the defendants the sum of ninety dollars ($90.00) and costs, and that a certified execution should be granted. The defendants were allowed an exception to the judgment and to the granting of a certified execution, and the cause was passed to the Supreme Court." The plaintiffs argue that by proceeding with the trial, the defendants have waived their exceptions to the ruling upon the demurrer, but we do not consider that, under the circumstances, they have done so. The subsequent proceeding was not a trial on the merits of the controversy, but was for the limited purpose of ascertaining the damages in the event that the demurrer should be held to be good in this Court. But a bill of exceptions is to be construed against the excepting party(Higgins v. Metzger,
