Howard v. Bartlett

• Decision Date: 25 March 1898
• Parties: HOWARD v. BARTLETT.
• Court: Vermont Supreme Court

40 A. 825

70 Vt. 314

HOWARD

v. BARTLETT.

Supreme Court of Vermont. Windham.

March 25, 1898.

Exceptions from Windham county court; Ross, Judge.

Replevin by Jennie Howard against N. G. Bartlett for cattle. Plea, the general Issue. Verdict and judgment for the plaintiff. The defendant excepted. Affirmed.

The third request to charge, referred to in the opinion, was that If, at the time the writ was served, the cattle were restrained by the defendant, but had not been restrained for 24 hours, the plaintiff could not recover.

Waterman, Martin & Hitt, for plaintiff.

Clarke C. Fitts, for defendant.

THOMPSON, J. The defendant contends that it was error for the court below not to comply with his first request to charge the jury, which was as follows: "If there was no usable public pound in Guilford, defendant had a right to take and restrain cattle found damage feasant upon his premises, and had twenty-four hours from the time of so taking and restraining them in which to notify the owner, and his detention of them during such twenty-four hours was not unlawful." Unless this request embodied a sound proposition of law applicable to the case on trial, it was not error to deny it. It assumes that the defendant had a right to take and restrain the plaintiff's cattle, if taken damage feasant, for 24 hours, whether he had in fact Impounded them or not. He had no such right unless he in fact impounded them. When beasts taken damage feasant are Impounded, the person impounding them has 24 hours thereafter in which to give notice thereof to the owner or person having the care of such beasts, as is required by V. S. § 4768, but the 24 hours do not begin to run until the beasts are actually impounded. Hence this request was unsound. Neither was it applicable to the facts of the case. The record does not disclose that the defendant had impounded the plaintiff's animals when they were replevined. The defendant's evidence tended to prove that he took the cattle in question on his premises doing damage, and put them in his pasture, and inclosed them, but that in so doing he did not understand that he was impounding them. The mere restraining of the cattle, without the Intent to impound them by so doing, would not constitute an impounding, although there was no usable public pound in the town where the cattle were taken. There may be a restraining of cattle taken doing damage without its being an impounding. To constitute an impounding, the cattle must be placed in a...