McKeen v. Converse

• Decision Date: 27 July 1894
• Court: New Hampshire Supreme Court
• Parties: McKEEN v. CONVERSE et al.

39 A. 435

68 N.H. 173

McKEEN

v. CONVERSE et al.

Supreme Court of New Hampshire. Coos.

July 27, 1894.

Trover by James W. McKeen against Asaph Converse and another for five cows, with a count in case, alleging that the plaintiff, as agister,, had in his custody five cows, which the defendants wrongfully took from him under pretense of impounding. Plea, general issue, and a special plea of justification under impounding proceedings. Facts found by a referee.

In 1890 the plaintiff owned a pasture and the defendants tillage land, in Northumberland, between which was a lot owned by S. The fence between the pasture and the S. lot was defective, and there was none between that lot and the tillage. The plaintiff pastured five cows, belonging one each to Atkinson and four others, who were to drive them to and from the pasture each morning and night About two acres of the defendants' land was cultivated in oats. September 18, 1890, the defendants found the cows doing damage in their oat field (one of which, before being taken, strayed into their adjoining grass land), and thereupon took them for the purpose of impounding them, and early in the forenoon drove them to and put them in the barnyard of A. A. Potter, in Northumberland, who, they understood, was the poundkeeper. April 5, 1890, the selectmen of Northumberland, in writing, appointed Potter poundkeeper, and in the appointment declared that his barnyard should be "the pound for said town." He took the oath of office, and his appointment, with the certificate of the oath thereon, was recorded by the town clerk on the same day, but "he received no papers or commission from the selectmen," nor did it appear that he furnished any bond as poundkeeper. A sufficient notice of the impounding, signed by the defendants, was left with Potter the same evening. A copy of this paper was, on the same day, delivered to or left at the abode of each cow owner except Atkinson, to whom it was read on that day. and at whose abode it was left in the forenoon of the next day; but the referee is unable, on the conflicting evidence, to find affirmatively that it was so left within 24 hours from the time of impounding. September 30th, after the appraisers' report of damages was made, the defendants presented to E. F. Bucknam, a justice of the peace, a petition praying "for an order for the sale or appraisal of said five cows." On the same day, without notice to the cattle owners or the plaintiff, Bucknam issued an order addressed to the defendants, directing them to sell the cows at public auction, "giving notice and selling as sheriffs may do upon execution." By virtue of this order, and upon due notice, the defendants sold the cows October 3d at public auction, to the plaintiff. The application for the sale was made September 30, 1890. In the order of sale, made the same day, the justice states that "upon the foregoing application I notified the parties to appear at the dwelling house of Asaph Con verse on Friday, the 26th day of September, instant, at ten o'clock in the forenoon, then and there to be heard upon said application." The justice acted as adviser and counsel for the defendants in all the proceedings, made for them all the writings, and attended the sale in their interest.

Ladd & Fletcher, for plaintiff.

H. Heywood, for defendants.

WALLACE, J. The plaintiff, being in the lawful possession of the cattle when impounded, as agister, had a special or qualified property in them, which entitled him to maintain an action for any injury to his possession, or any conversion of the property. 2 Bl. Comm. 453; 2 Kent, Comm. 585; Story, Bailm. § 443; Woodman v. Nottingham, 49 N. H. 387, 393. It does not follow that one of the cows was not damage feasant, within the meaning of the statute, because although, when discovered by the landowner, she was in the oat field, yet, at the precise moment of time when taken by the defendants for the purpose of impounding, she had strayed from the oatfield, and was then in the adjoining grass land of the defendants. According to the somewhat strict construction that has been put upon the matter of damage feasant, a person cannot impound animals for damages done to his land on any other occasion than the particular one on which they were taken by him to be impounded, and he cannot impound them for this damage after they have left the land. When, however, at the precise moment when taken, they are trespassing on a different part of the land from what they were when first discovered, both reason and the authorities warrant the holding that they are damage feasant, and liable to be impounded for the trespass. Holden v. Torrey, 31 Vt. 690; Clement v. Milner, 3 Esp. 95; Co. Litt. 161a; 12 Moore, 160, 161.

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