
    Joseph Vinton, Qui tam, &c., versus Leonard Vinton.
    If one take cattle from the lawful custody of a field-driver, which he is driving to the pound, this is a rescue, although they are never out of the view of the field-driver, and are finally yielded to him and impounded.
    This was action of debt, brought by the plaintiff as a field-driver in the town of Dudley in this county, to recover of the defendant the penalty of forty shillings, upon the statute of 1788, c. 65, entitled “an act declaring the causes for which cattle may be impounded, the manner how they shall be proceeded with in such cases, and for preventing rescue and pound breach; ” the sixth section of which imposes a fine of forty shillings upon any person who shall rescue any creatures out of the hands of the field-driver, or from the hands of any other person being about to drive or convey them to pound, whereby the party injured may be in danger of losing such his remedy, and the law evaded.« [ * 343 ] The action being tried at the Court of Common Pleas, a verdict was found for the defendant under the directions of the court; to which the plaintiff filed exceptions under the late statute, and brought the action to this Court.
    The plaintiff proved that he was a field-driver, and that he took the horse and sheep mentioned in the declaration, going at large in the highway, the horse unfettered, and the sheep not under the care of a shepherd ; that he had them in his custody in the highway, and, with his assistants and servants, was driving them to the pound ; that the defendant, and others associated with him, who were interested in the property, seeing the creatures in the custody of the plaintiff, got before them and drove them, against the will of the plaintiff, into an inclosure adjoining the highway, by a passage which they opened for the purpose, and, after some contest with the plaintiff, closed the passage, thus preventing the cattle from returning into the highway ; that the plaintiff and his assistants followed the defendant into the inclosure, and endeavored to drive the creatures into the road; which was prevented by the defendant and his associates, who, on their part, took down a part of the wall separating the inclosure from an adjoining field, for the purpose of placing the creatures out of the plaintiff’s way ; but this the plaintiff and his assistants prevented, by placing themselves at the openings so made. After some time, and after consulting a neighbor whom the defendant sent for to advise with, the defendant and his associates suffered the creatures to be driven by the plaintiff into the road; and they were driven away and impounded by him. It was in evidence that the plaintiff had said that the defendant, with his associates, had attempted to get the creatures from him, but did not effect it, and could not have done it, if there had been twice the number of them.
    Upon this evidence the plaintiff contended that he had maintained his action, at least for the rescue of the sheep.
    * But the court below instructed the jury, that if they [ * 344 ] believed that the plaintiff, at no time after taking the custody of the creatures, yielded them to the possession of the defendant, but followed them into the inclosure, and contended with the defendant for their possession, and continued his attempts to get and keep them from the defendant, until they were finally yielded to him by the defendant to be driven to the pound, there was no rescue committed, for which the plaintiff could maintain this action.
    
      Lincoln, for the plaintiff.
    
      Hastings and Mills, for the defendant.
   Ouria.

The question is, whether the facts proved in the trial of this action, amount in law to a rescue, or only to an attempt which was defeated.

The defendant succeeded in getting the sheep by force from the highway, where the plaintiff was driving them to pound, into an inclosure, where they were shut up and kept by force. If this does not amount to a rescue, nothing short of an actual abduction, so that the cattle cannot be retaken, will be sufficient to constitute one.

To constitute a rescue, there must be, first, an actual possession in the party from whom they are taken . The facts in this case show that the sheep were actually in the custody of the plaintiff, and that he was driving them to pound. Secondly, there must be a talcing away and setting at liberty. The case shows that they were actually taken from the possession of the plaintiff and his assistants, and driven out of the highway.

It has been urged in the argument, that as the plaintiff pursued the sheep, and did not lose sight of them, but contended with the defendant until he yielded them, there was only an attempt to rescue. But the rescue was complete when the defendant forcibly drove them out of the highway; and what followed was only a recaption, which did not purge the rescue, f * 345 ] *By the statute of 1788, c. 65, rescue is made to consist in taking the cattle out of the hands of the person driving them to pound, so as to endanger the losing of the remedy provided by that statute.

The statute of 1817, c. 143, was not intended to repeal the former statute, as the counsel for the defendant have argued, but merely to alter the penalty. It, however, describes a rescue as an act, whereby the field-driver, or other person, shall be prevented from impounding the cattle. As it is evident it was not intended to introduce any new principle in this statute, which was made only to affect the penalty, it is proper to give it a construction which will make it comport with the former statute of 1788.

The prevention intended is not an absolute and final obstruction, but any forcible interruption by rescue which may occasion a prevention at the time. The case at bar shows such a prevention, and the impounding afterwards does not purge the offence.

New trial ordered. 
      
      
        Bac. Air. Rescue, A., and the authorities there cited.
     