Moore v. Robbins

| Vt. | Feb 15, 1835

The opinion of the court was delivered by

Williams, Ch. J.

— The queston in this case is, whether the taking the sheep in question was unlawful, or whether defendant has made himself a trespasser ah initio, by his neglecting to comply with the requisition of the law in this behalf. In either case, trespass or trover may be maintained. The plaintiff relies upon two principles to maintain this action, as contained in his request to the court to charge the jury, to wit: That proper notice was not. given to him of the impounding the sheep, and that the defendant was not justified in keeping them in his barn, but should have immediately driven them to pound. It is made the duty of any person impounding any creature taken damage feasant, forthwith, or within twenty-four hours, to notify the owner by leaving word at his house in writing, or giving him personal notice thereof. If damages are claimed, the notice must also be to appear at the dwelling house of the impounder within twenty-four hours to appoint persons to appraise the damages. The time from which the twenty-four hours is to be computed, must be from the time of impounding, and not from the time of taking, as was argued. The person impounding is to give the notice, and he cannot be called the im-pounder or person impounding, until he has actually delivered the creatures impounded to the custody of the pound keeper. If they are taken from the possession of the person driving them to pound against his will, the person taking is liable to a penalty for a rescue, if from the pound keeper, the taking constitutes what is termed pound breach. The provision in relation to appointing appraisers is only.to ascertain the damages. If the person impounding waives any claim for damages, as he may, it is not necessary to have any appraisess appointed.

The plaintiff was, therefore, incorrect in claiming of the court to charge the jury that it was the duty of the defendant to notify the plaintiff to appear and agree upon, or appoint a committee to appraise the damages. The other part of the request of the plaintiff is almost in the words of the statute, and he was undoubtedly entitled to the benefit of the principle of law arising from the statute. If he has been deprived of it by the neglect of the county court, the judgment must be reversed. I consider that a neglect on the part of an impounder to proceed with a distress according to the requisitions of the statute will make the destrainer a trespasser ah initio. It was so in England until the statute of 11 Geo. 2 c. 19, s. 19, made this case an exception from the general rule of law upon this subject. This neglect is not a nonfeasance merely, like the six carpenters case, it is more analagous to the case of a sheriff neglecting to return a writ. It is,- however', unnecessary to examine this principle very fully,- as the important question will still remain, whether in the present case there has been a failure to comply with the requisition of the statute.

The second repuest of the plaintiff to the .court to charge the jury, is founded on the supposition that a person taking cattle damage feasant, must proceed immediately with them to the pound. This, however, is not indispensably necessary. There must be no unnecessary delay, — the impounder should proceed with all convenient despatch, and this will always depend on the circumstances of each particular case, — the distance from the pound — the time of day when taken, &c., to be judged of by the jury or court who try the case. In the application of these principles to the case under consideration, it becomes necessary to inquire whether the notice was given as required by the statute. By personal notice we do not consider that notice shall be given directly by the persons impounding to the owner. He may give this notice by an agent, but must, in such a case, incur the risk of being able to- prove it when required. By leaving word in- writing,” as the statute expresses, it, he is protected, whether the word comes- to the knowledge of the owner or not. By taking any other course, he must not- only be sure that the notice is given and received, but also that he can-prove it by satisfactory evidence when the fact is put in issue. If the notice is to appoint appraisers, it should be specified. If only the fact of impounding, word may be sent by another,- but it must be made to appear t-ha-t the' owner had the word within the limited time, and had it as notice coming from the impounder. In this view it is immaterial through how many hands the notice may have passed, provided it comes to the owner, and he receives it as coming' from the impouder. In this case it- appears that such notice was given. The agent of the defendant left- word with the family of the plaintiff, and the plaintiff received the notice as from him,that his sheep were impounded. This was such a personal notice' as was a compliance wit-h the requisitions of the statute. In rela-tion to the reasonableness of the time after the sheep were taken-before they were driven to pound, it appears that it was left to the jury, and their decision on- that question- is conclusive. Furthermore, it appears there was no unnecessary delay. From the manner in which the case is stated, there .is some doubt whether.any question was left to the jury.. This is, undoubtedly, an inaccuracy, as there is apparently some inconsistency in. the case as stated. It is said the court instructed the iurv that the plaintiff was not entitled' n • . * . • * „ , i , to recover. But it appears m another part of the case, that the reasonableness of the time during which the sheep were kept by defendant after taking and before impounding, was submitted to the jury;- and so also undoubtedly was the fact,-whether the plaintiff received the notice left at his house by the defendant’s agent. It is not, however, stated aá fully and as accurately as it might have been, what questions were submitted to the jury. We think,-however, it would not be expedient to send this case to another jury for them to pass upon this question of noticey When from the' same facts which are detailed in this case, they should and would find that the notice was given. — On the wholé, we see no reason' to set aside the verdict, and the judgment-thereon must be affirmed.-