Harvey Dunbar Et Ux. v. Maxime Godbout

• Decision Date: 03 October 1933
• Citation: 168 A. 551,105 Vt. 448
• Parties: HARVEY DUNBAR ET UX. v. MAXIME GODBOUT ET AL
• Court: Vermont Supreme Court

168 A. 551

105 Vt. 448

HARVEY DUNBAR ET UX. v. MAXIME GODBOUT ET AL

Supreme Court of Vermont

October 3, 1933

May Term, 1933.

Animals---Duty of Towns as to Providing Pounds---Duty of Poundkeeper as to Receiving Animals---Place of Impounding---Presumptions---Direction by One Selectmen as to Place of Impoundment Insufficient Designation of Place as Legal Pound---Trover and Conversion---Failure To Allege Lack of Legal Pound as Affecting Defense That Animals Were Impounded Elsewhere---Insufficiency of Authority of One Selectman To Designate Private Barn as Pound---Effect of Submitting Issue of Damages to Jury on Exceptions To Sustaining of Demurrer---Bill of Exceptions Construed against Excepting Party---Waiver of Exceptions by Failure To Brief.

1. Under G. L. 6668, 6669, each organized town is required to keep, at its expense, one, two, or three good and sufficient pounds, and is subjected to penalty for failure so to do.

2. Poundkeeper has duty to receive and keep beasts brought to him, without regard to legality of impounding.

3. If there is sufficient pound in town, cattle taken damage feasant cannot be legally impounded elsewhere.

4. In

ACTION OF TORT for conversion by impounding cattle in private barn. Special plea, and demurrer thereto. Heard by court in Caledonia County municipal court, Nathan A. Norton, Municipal Judge, presiding. The demurrer was sustained. The defendants excepted. The opinion states the case.

Judgment affirmed.

S.E Darling for the defendants.

Searles & Graves for the plaintiffs.

Present POWERS, C. J., SLACK, MOULTON, THOMPSON, and GRAHAM, JJ.

OPINION

MOULTON

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 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, 70 Vt. 113, 114, 117, 39 A. 635. If there is a sufficient pound in the town, cattle taken damage feasant cannot be legally impounded elsewhere, and to do so is to act without right. Ladue v. Branch, 42 Vt. 574, 575, 576. It is only where there is no sufficient pound that "a person wishing to impound a beast may use his barn or some other enclosure for that purpose." G. L. 6670; Riker v. Hooper, 35 Vt. 457, 462, 82 Am. Dec. 646. There is no specific allegation of the nonexistence of at...