Edwards v. Osgood

Redfield, Ch. J. It having been held by this court that the •denial of an appeal by a justice court, in a case by law appeal-able, was just ground for setting aside the judgment, by audita querela, before the statute allowing a petition in such cases to the county court, (Taylor v. Lothrop, 5 Vt. 170,) the rule was not changed, upon the introduction of the new remedy, but has been repeatedly reaffirmed since. It is now too late to depart from that rule. We are satisfied, that the action to recover the seventeen cents a day, for suffering one’s cattle impounded to remain in the pound, must be regarded as altogether penal, and not intended to •compensate the pound keeper for his support of .the animals. This support he is required to furnish and is entitled to demand [226] of the owner, as part of liis legal charges, before the cattle are redeemed. Many of the other sections of the statute speak of the charges of the .pound keeper, as distinct from costs and expenses of impounding and appraising damages. These charges must, we think, include the keep of the animals. Upon any other view, the pound keeper would seem to have no remedy provided in the statute, whereby he is to be reimbursed this expense. And we cannot suppose so important a consideration would have escaped the notice of the legislature, or that they would purposely have omitted to make provision for its liquidation, or that they would have made such provision by this indirect and unequal mode of compensation. We must therefore conclude it is included in the pound keeper’s charges, which the owner is to pay, in addition to the seventeen cents per day. That will therefore be strictly of the nature of a penalty or forfeiture, and the action for its recovery is therefore made appealable by the statute, and the decision below was proper. Judgment affirmed.