The authorities cited by the counsel show the rule as to pleading an avowry at common law. It is not sufficient, in such case, to state, as in trespass, that the defendant was lawfully possessed, but it is necessary to set forth the nature of the defendant’s title to the locus in quo. 1 Saund. 347 ; 2 Bos. & Pul. 359 ; Wilson on Replevin 59; though it is said that if the avowry be made by a freeholder, it will be sufficient to allege generally, that the close was his soil and freehold, without specifying his particular interest or estate. Bac. Ab., Replevin, 22.
This rule of pleading is an exception to other cases depending on similar principles, and rests on mere authority in matter of form. Our statute, however, we think has clearly superseded any technical rule of this description, and renders it merely incumbent on the defendant to allege and show in evidence that the cattle taken “ were found damage feasant in the defendant’s enclosure.”
The statute designs to protect such enclosure, whether on the defendant’s own land or not, against the depredations of the cattle of all persons other than the true owner of the soil. The possessory right of such enclosure is a sufficient title against any mere wrong doer, by himself or cattle. We are, therefore, of opinion that the statement in the avowry.
The second objection is more formidable. The authority to take cattle, for the purpose of impounding them, is confined exclusively to cattle doing damage at the time of the taking, and the defendant is to notify the plaintiff within twenty-four hours, of the amount of such damage, and the time when and place where it was done.
It is perfectly clear that a taking for any prior damage is unlawful. The remedy given by statute is for actual aggression at the time ; and if the remedy is not then enforced, redress is to be sought by some other process.
The defendant in this case took the cattle,, not only for injury done at the time, but for various other breaches of his close. This was clearly unlawful. The statute provides that “ in all cases the damages to be estimated to the 1 party impounding shall only be that which hath been done ‘ by such creatures the last time of thsir being in the enclos- ‘ ure of the person impounding, and not any damage the ‘ same creatures may have done previous thereto (IN. H. Laws 208) and the notice is to be given in conformity to this provision.
The specific damage done on Friday, the 21st of July, was all that the defendant could claim in this case ; but his damage claimed for this and various previous breaches is entire, so that in fact no specific damage is notified as having been done on that day; and the statute requiring notice of such damage is not complied with.
As this is a mere statutory remedy, the provisions of the statute must he strictly conformed to, or the individual impounding will be either a trespasser ab initio, as is holden by many authorities, or at least under our statute his subsequent detention of the property will be unlawful, and will justify a recovery in replevin. 3 N. H. R. 183, Kimball vs. Adams ; 1 ditto 36, Brown vs. Smith.