Holden v. Torrey

Aldis, J. I. It is claimed by the plaintiff that the conversa [692] tion that passed between the plaintiff and the defendant, as reported by the referee, and the assent then expressed by the defendant to what the plaintiff said, should be regarded as an estoppel concluding the defendant from afterwards impounding the cattle, and making any subsequent impounding illegal. The conversation as reported by the referee is no estoppel. The defendant says and does nothing to induce the plaintiff to leave his cattle there. On the contrary, the plaintiff begins by saying that he is going to leave them there. He requests him to send him word if they get in again, to which the defendant assents. This can not properly be regarded as an estoppel, nor as a verbal contract. There is no consideration, no agreement binding in law. It is mere friendly talk, expressive of good will and of an intent to perform an office of good neighborhood, nothing more. To give a greater force to it would be at variance with what both parties must have understood it to mean at the time. II. The referee finds the facts set forth in the avowry to be true. These, and the facts stated in the declaration and the report, present-the following case: On Friday, August 25th, the cattle were in the defendant’s close doing damage, and were then taken and impounded by the defendant. On the 26th he gave due notice of the impounding to the plaintiff, and also notified him to appear on Monday, the 28th, to appraise the damage. On Monday the plaintiff replevied the cattle, being within the time when the damages were to be appraised. After the replevy nothing further was done as to appraising damages. The plaintiff claims that though the original taking was legal, the detention was unlawful. But if the taking was legal, the defendant had the right to detain them for the appraisal of damages. He was proceeding according to law to have the damages appraised, and before the expiration of the shortest time prescribed for their appraisal by the statute, the plaintiff replevied the cattle. Up to the time of the replevy there was no unlawful, but on the contrary, a strictly lawful detention. The case of Mellen v. Moody, 23 Vt. 674, shows that a detention beyond the forty-eight hours is legal, if the damages can not be ascertained within that time; but a cletention for that time and for the purpose [693] of ascertaining damages, and after notice therefor, is within the very words and intent of the statute. III. Was there any subsequent irregularity that makes the defendant a trespasser ab initio ? The omission to have the damages appraised is not such an irregularity. In Moore v. Robbins, 7 Vt. 363, that point is directly decided. Wo other irregularity is alleged. The impounding and detention were therefore legal, and the plaintiff therefore can not sustain his replevin. IY. By the statute, chap. 33 sec. 7, the defendant in such case is entitled to judgment for the damages for which the beasts were impounded. The referee and the county court allowed nine dollars damages; being not only the damages sustained on the occasion of their being impounded, but all the damages they occasioned between the 7th and the 25th of August. The report finds that on the 7th of August, and on divers days and times between that day and the day of the impounding, they were in the defendant’s lot doing damage, and for all this damage the sum of nine dollars is allowed. We think such an allowance can not be sustained. The damages contemplated by the statute, those which the appraisers are to ascertain, and which the defendant may recover in the replevin (if he recover at all), are only the damages done by the cattle upon the occasion when they are taken to be impounded. He can only take and impound them when found damage feasant. Thus it is said in Bacon’s Abr., citing Co. Litt. 161, and 9 Co. 22 a., that “ if a man is coming to distrain cattle damage feasant, and sees them on his soil, and the owner on purpose chases them out before they are taken, he can not distrain them.” This is upon the ground that they have ceased to be damage feasant. A fortiori, if the cattle have without such act and purpose of the owner left the soil where they did the damage, and ceased to be doing damage, then they can not be impounded for such damage; nor can such old trespass and damage be tacked to a subsequent one, and become in whole or in part the basis for proceedings under the statute. If the defendant can -recover for other damages upon former occasions, there will be no limit to a recovery except that which may arise from the statute of limitations. [694] Again, the statute provides that the damages shall he a lien upon the animals, so that the plaintiff, if he redeem them, must pay the damages assessed; or, if he deny the right to impound and replevy, must secure their payment by the replevin bond. This clearly shows that the damages done by the beasts at the time the right to impound was claimed and exercised, are all which can be appraised or recovered by the defendant in the replevin suit. If the plaintiff shows the taking and impounding were unlawful, the defendant certainly could not recover for damages done on a former occasion by the same beasts. We consider the allowance of the sum of nine dollars, for damages done on former occasions, was clearly erroneous. V. Is the defendant entitled to recover in this replevin suit for the damages done on the occasion when the cattle were impounded? He gave notice to the plaintiff to attend to an appraisal of them, pursuant to the statute, but he proceeded no further. If he had had the damages assessed by appraisers, pursuant to the statute, it is clear that he would have been entitled to a judgment therefor. He did not do so, but after giving the notice he stopped his proceedings under the statute, and no damages were appraised. On this point the court are not fully agreed. But as we are agreed that the defendant is entitled to recover nominal damages and his costs, and as the amount involved is trifling (but one dollar) , and the counsel of the defendant, in their argument, intimated a desire that the court should render judgment for damages in such sum as they deemed legal, we have concluded to allow the defendant nominal damages and his costsi We do so, not intending to decide the question whether, if the- impounder omit to have his damages appraised pursuant to the statute, he is or is not thereby precluded from recovering them in the action of replevin, if the owner of the cattle bring such an action, or in trespass, if the impounder should afterwards sue in that form of action for his damages. On those questions no opinion is expressed. VI. It was urged that, this being a reference, the defendant might recover, not only for the damages done at the time of the impounding, but for the fqrmer trespasses by the same beasts. [695] The reference was of this suit alone. To include other tres passes and wrongs, and causes of action, which could not he legally recovered in it, would violate the spirit of the reference. The judgment of the county court that the defendant recover nine dollars damages is reversed, and judgment is rendered that the defendant recover one cent damages and his costs.