It is objected in this case that the pleas in bar of the'pvowry are departures from the declaration. Bui it seems to us that this objection has no foundation. The plaintiff complains, in his declaration, not only of the taking, but of the illegal detention of his cattle ; and the matter of the pleas in bar of the avowry, if it amount to any thing, goes to shew an illegal detention of the cattle ; and, in that respect, fortifies the declaration and is not a departure. 2 Chilly's Pleadings, 639.
But a neglect to give notice, or to post up notifications, is a mere non feasance, tyhich cannot make the avowant a trespasser ab initio. Ordway vs. Ferrin, Grafton, May 1824. It is true, that in the case of Smith vs. Brown, (1 N. H. Rep. 36,) a contrary opinion is intimated by the court. But it will be found upon examination, that the opinion, thus intimated, is not supported by the authorities, upon which it purports to be founded. Those authorities are decisions of the supreme court of New-York ; in which it was decided, that if, in that state, cattle taken damage feasant are impounded without having the damage previously assessed by the fence viewers, according to the directions of their statute, it makes him, who so impounds them, a trespasser ab initio. But those decisions rest upon the particular provisions of their statute, which render it unlawful there to impound, in a publick pound, before the damage is assessed. In the case of Sackrider vs. M'Donald, (10 John. 251,) Kent, C. J., says “the “ impounding the cattle in the publick pound, before the dam- “ ages were appraised, was not a mere non feasance, but a “ positive act unauthorized by the statute.” If a lessor dis-trains for rent, a. refusal to re-deliver upon a tender of the arrears does not make the lessor a trespasser ab initio. 8 Coke 290.—10 John. 373.—15 ditto 401.
But although this omission may not have made the defendant a trespasser ab initio, it may have rendered his subsequent detention of the cattle unlawful. Upon this point it is unnecessary to say what our opinion would have been, had the question now, for the first time, presented itself for decision. Because it has been repeatedly settled, that such an omission does render the detention unlawful. Cross vs. Hughs, (1 N. H. Rep. 37,) and Brown vs. Smith, (1 N. H. Rep. 36.) And we are inclined to think it is doing no injustice to the person, who makes the distress, to consider him as
But as these pleadings now stand, the original taking of the cattle is admitted to have been lawful ; and the question presents itself, whether, where that is the case, replevin can be maintained for a mere unlawful detention ?
On this question there has been much diversity of opinion. Some have held that replevin did not lie for an unlawful detention, when the taking had been lawful. 15 John. 401.—1 Mason 322.
Others have been of a contrary opinion. 6 Mass. Rep. 427.—16 ditto 147.—15 ditto 359.—8 Coke 290.—10 John. 372.—Hammond N. P. 373.
But whether, at common law, replevin lies for a mere unlawful detention, where the taking was lawful, need not be decided in this case; because our statute of February 9, 1791, (1 N. H. Laws, 413,) enacts, that “in all cases, the “ owner of the creatures impounded may at any time, while “ the creatures remain in the pound, replevie the same, if “ he see cause.” And this clause has been always construed by our courts to have made replevin the appropriate remedy, to try as well the regularity of the proceedings in relation to the distress, as the legality of the taking. 1 N H. Rep 36, Brown vs. Smith.—Hammond N. P. 373.—Fitz. N. B. 159.
We are therefore of opinion, that the pleas in bar of the avowry are in law a sufficient answer, and that there must be
Judgment for the Plaintiff.