Mattison v. Turner

• Decision Date: 14 October 1897
• Citation: 70 Vt. 113,39 A. 635
• Parties: MATTISON et al. v. TURNER.
• Court: Vermont Supreme Court

39 A. 635

70 Vt. 113

MATTISON et al.

v. TURNER.

Supreme Court of Vermont. Bennington.

Oct. 14, 1897.

Exceptions from Bennington county court; Thompson, Judge.

Replevin by D. P. Mattison and others against George Turner. Demurrer to a special plea is sustained, and judgment rendered for plaintiffs. Defendant excepts. Reversed.

The special demurrer assigned as causes that the plea did not allege any notice to the plaintiff of the impounding or of the appraisal of damages, or of the hearing upon appraisal, or that the beasts were taken doing damage.

Barber & Darling, for plaintiffs.

Batchelder & Bates, for defendant.

START, J. This cause was heard on demurrer to the special plea. The plea alleges, among other things, that there was a pound for the impounding of beasts liable to be impounded, in the town of Shaftsbury; that the defendant was the keeper of the pound; that the cattle in question were impounded therein; and that the damages had not been paid at the time the plaintiffs brought this action. The demurrer to these allegations is general, and does not reach formal defects therein. By these allegations, the defendant justifies his acts; and he was not bound to show that the act of the impounder, in taking and impounding the cattle, was lawful. In Badkin v. Powell, Cowp. 476, Lord Mansfield said: "The pound is the custody of the law, and the poundkeeper is bound to take and keep whatever is brought him, at the peril of the person who brings it. There is no judgment, no direction, no warrant, or examination to be had by him. He does nothing to ratify; but only takes cattle, as he is obliged to do, at the peril of the persons who bring them. If wrongfully taken, they are answerable, not he. It would be terrible if a poundkeeper were liable to an action for refusing to take cattle in, and were also liable in another action for not letting them go." And Austin, J., said: "The instant they are in the pound they are in the custody of the law; and, if the pound is broken, he cannot bring an action, but the person who distrained them." It was held in Mellen v. Moody, 23 Vt. 674, that the statute relating to the replevying of beasts impounded did not contemplate that the writ should be brought against the poundkeeper, but the impounder; that the provisions in regard to the final disposition of such cases would be absurd, if the suit were to be brought against the poundkeeper; that the action of replevin against a poundkeeper, under the statute giving an action of replevin for goods unlawfully taken or unlawfully detained, must rest upon the wrongful acts of the poundkeeper; and that the statute did not contemplate holding him responsible for the acts of the impounder. There has been no change in the statute relating to the liability of poundkeepers since it was construed in Mellen v. Moody, supra, unless an additional liability attaches to them by reason of V. S. § 4786, which provides that, when a person impounds a beast, the poundkeeper may require sufficient security to indemnify him for liability for detaining the beast, and for supplying it with food and drink while in the pound; that if the person so impounding does not, within 24 hours, furnish such security, he may release the beast and deliver the same to the owner or keeper; and that the person impounding the beast shall be liable to the poundkeeper for his costs, trouble, and expenses. This statute does not, by implication or otherwise, impose liability upon the...