Mellen v. Moody

By the Court. It is evident, that the statute, in regard to the replevying of “ beasts distrained,” — Rev. St., chap. 30, — did not contemplate, that the writ would be brought against the pound keeper, but the impounder. The seventh and eighth sections contain provisions, in regard to the final disposition of such cases, which would be absurd, if the suit were to be against the pound keeper, to wit, if the plaintiff prevails, he shall have damage for the unjust' taking and detention of his beasts; and if the defendant, he shall have judgment for the damage done by the cattle, and any penalty to which he may be entitled. It is probable enough, that the fourteenth and following sections [678] might enable the owner of beasts, unjustly detained by a pound keeper, to have replevin. But such claim must rest upon the wrongful act of the pound keeper altogether, unless we are to hold him responsible for the act of the impounder, which the statute evidently does not contemplate. The most, then, which the plaintiff could claim in the present case, is, that, by lapse of time, the impounder had lost all claim for damages. But we do not so view the statute. We think the limit of forty eight hours for the owner of the beasts to pay damages, or replevy, must-be understood with this qualification, if the damages can be so soon ascertained, and if not, as soon as they are ascertained ; — and that the owner, in the present case, has not shown any just ground of replevy against the pound keeper, until he pays the damages appraised and all just costs. Judgment affirmed.