
    Sackrider against M'Donald.
    If the distrain» or of cattle' damage feas~ ant,impounds them, without having the damages pre» viously ascertained by Cum fence viewers, according to the directions of the act, (sess.24. e. 78, s. 16.) it is irregular andunlawful,andrenders the party impoundihg a trespasser' ait initio.
    IN ERROR, from the court of common pleas of Delaware county. The plaintiff below brought an action of trespass for a horse. The defendant pleaded not guilty. On the trial, the plaintiff gave in evidence that he was the legal owner of the horse in question; that the defendant below distrained the horse damage feasant in the defendant’s field, and impounded him, in the nearest public pound in the same county, within forty-eight hours after the distress; and that the damages were not appraised before the impounding. The defendant below moved for a nonsuit on the ground that the plaintiff had mistaken his form of action, and should have brought an action of trespass on the case, instead of trespass; and the court below granted the motion, and ordered the plaintiff to be nonsuited; but afterwards, at the instance of the plaintiff, permitted the cause to go to the jury, who were charged, by the court, that as the plaintiff had mistaken his form of action, they ought to find a verdict for the defendant, and the jury found a verdict accord-ingly. A hill of exceptions was tendered by the plaintiff.
    
      D. Ruggles, for the plaintiff in error.
    The question is, whether trespass was the proper form of action in this case. Wherever an authority or license is given to a person by law, and he abuses' that authority, he may be considered asa trespasser ab initio, and so trespass will well lie. It has been frequently adjudged that if a person taking an estray, o'r a beast, damage feas ant, works or kills such beast, he will be deemed a trespasser ab initio. In Pratt v. Petrie, it was decided, that if cattle taken damage feasant are impounded before the damages are ascertained, the party is a trespasser.
    ALBANY,
    August, 1813.
    
      Sudam, contra.
    The case of Pratt v. Petrie must have been decided on the first objection raised by the counsel for the plaintiff in that case, and not on the third, as stated by the reporter; for it appears from the return of the justice on file, that there was no evidence that the cow was damage feasant. It is so expressly stated by the justice. (The counsel produced and read the return.) There was, then, on that ground alone, sufficient cause for reversing the judgment, without taking notice of the objection as to the damages not having been previously ascertained.
    Is case or trespass the proper remedy ? Trespass will not lie for a mere nonfeasance; and the neglect of the defendant to have the damages ascertained previous to impounding the horse, was a nonfeasance.
    The 10th section of our act, (sess. 11. c. 36.) which is the same as 11 Geo. II. c, 19, s. 19., provides, that where the distress is for rent justly due, an irregularity, or unlawful act subsequently done by the party, shall not render him a trespasser ab initio ¡ but the party aggrieved by such unlawful act may recover for the damages sustained by such act, in an action of trespass or on the case,' at his election: yet in Messing v. Kemble,
      Lord Ellen-borough did not consider the statute as altering the common' law, and that trespass would not lie for an irregular distress, when the irregularity complained of was not, of itself, an act of trespass, but a mere omission of some of the forms required in making the distress. The same doctrine was laid down in the case of Winterbourne v. Morgan,
      
       and that the statute gives trespass or case only, where either is the proper remedy; and in the Six Carpenters' Case, it was held that a party is not, by merely not doing what he ought to do, a trespasser. Trespass does not lie for a mere excessive distress for rent. Whether the distress be for rent, or damage feasant, the principles of the common law, as to the action of trespass, are equally applicable.
    
      But we contend that it is not necessary under the act (sess. 24. c. 78.) to have the damages previously assessed by the fence viewers; but the party may impound immediately. By the common law a tender of amends before distress made it tortious, and a tender before impounding made the detainer tortious. After impounding the cattle, there was no remedy but replevin, and the damages must be assessed on the avowry. The statute intended to avoid the delay and expense of that remedy, and erected a new forum to decide on the injury sustained, that is, the fence viewers, and their decision is final. When the statute says, “ the person making the distress shall, as soon as he shall think proper, and within forty-eight hours after making the distress, unless the damages are sooner paid, impound the beasts,” can it be said, that It obliges the distrainer to keep the beasts, under every disadvantage, for twenty-four hours?
    The words “ unless the damage shall be sooner paid,” in the 16th section, refer to the tender of amends at common law, and not to the damages assessed by the fence viewers. The moment cattle are taken damage feasant, they are in the custody of the law. The party may keep the cattle distrained until the damages are paid, and whether they are kept in a public pound, or in his own possession, can make no difference.
    F. Williams, in reply,
    insisted that the decision in the case of Pratt v. Petrie was conclusive as to both the points in this cause. The remedy by distress is one placed in the hands of the party himself, anti he must proceed regularly, according to the directions of the act, otherwise he cannot haxe execution by impounding the cattle: for the distress is a summary execution in the first instance, and the distrainer must take care tobe formally right. By the 10th section of the act relative to distresses, the party guilty of any irregularity, is not, therefore, to be considered a trespasser ab initio. In the 16th section of the “ act relative to the duties and privileges of towns,” which regulates distresses damage feasant, there is no such provision; and thence it is to be inferred, that the party guilty of irregularity is to be deemed a trespasser ab initio.
    
      
      
        Cro. Jac. 147, 148, Salk. 221. Bull. N. P. 81. Cowper, 414. 3 Bl. Com. 14, 15. 11 East, 395. Com. Dig. Trespass, C. 2. 4 Mod. 391. 4l7.
    
    
      
      
        2 Johns. Rep, 191.
    
    
      
       2 Campb. N. P. Rep. 115.
    
    
      
       11 East, 394. 401.
    
    
      
       8 Co. 146.
    
    
      
       Selw. N. P. 615. Fitzg. 85. 1 Fitzg, 85. 1 Burr. 590.
    
    
      
      
        Comp. 437.
    
   Kent, Ch. J.

The case of Pratt v. Petrie (2 Johns. Rep. 191.) is in point to show that cattle distrained damage feasant ave not to be impounded until the damages have been previously assessed, and that if they be, it is an irregularity which renders the party a trespasser. The statute (sess. 24. c. 78. s. 16.) says, when any distress shall be made of beasts doing damage,the person distraining shall, “ as soon as conveniently may be, anij.within 24 hours,” apply to the fence viewers to have the damages appraised, and that the person making the distress shall, , as soon; as he shall think proper, and within 48 hours after making such distress, unless the damage shall be sooner paid, cause the beasts to be put in the nearest pound, &c. where they shall remain until the sum, certified by the fence viewers, with the fees of the pound-master, be paid,” Sec. The construction given to this act in Pratt v. Petrie was correct. There is a material difference between goods remaining in possession of the party distraining, and in a public pound. In the former case, they may be rescued if taken without cause, or contrary to law, but in the latter case they cannot, for they are in the custody of the law, (Co. Litt. 47. b.)„ The law provides for one sufficient pound, at least, in every town, under the charge of a pound-master, and when the beasts are placed there, it is by way of coercion to compel the owner to pay the damage, and they cannot be redelivered without also paying the poundage fees; and when there, the owner ought to be able, to redeem them immediately, which he cannot do, if the damages are not duly assessed. The assessment is therefore evidently a pre-. Iiminary step to the impounding, and this is the meaning of the act. The owner is to have an opportunity of paying the damage before the beasts are impounded, which he loses, if they can be immediately impounded before the fence viewers have been called.' The person distraining was," therefore, irregular in impounding beasts, and he became a trespasser in so doing; and the trespass carried back by relation to the original taking, so as to render the party a trespasser ab initio. This was the settled rule of the common law, and it has been Constantly.and uniformly acknowleged by the courts; and the distinction is between an entry, authority or license given to one by law and by the party. If the authority be abused, the law, in the first case, adjudges, by the subsequent act, quo animo the original entry was made, and makes party a trespasser ab initio ; but not so in the latter case, be-cause the party cannot, for any subsequent cause, punish that which was done by his own authority. (The Six Carpenters' Case, Co. 146. Bagshaw v. Garvard, Yelv. 96. Case cited by TwysJ. in 1 Vent. 37. Gargrave v. Smith, 1 Salk. 221. Dye v. Leatherdale and Simpson, 3 Wils. 20.) The statute, guarding against the operation of this rule in certain cases of distress ap= plies only to distresses for rent. (Sess. 11. c. 36. s. 10.) The impounding the cattle in the public pound before the damages were appraised, was not a mere nonfeasance, but a positive act unauthorized by the statute, and for which the action of trespass was well brought.

Spencer, J.

The court below have disregarded the case of Pratt v. Petrie. (2 Johns. Rep. 191.) In that case, the beast was taken damage feasant, but impounded before the damages were appraised, and we held it a fatal objection, saying that the act required the damages to be ascertained by the fence viewers before the beast could be impounded. The attention of the court was not called to the form of the action in that case; so far the question is open for discussion.

The counsel for the defendant in error has questioned the soundness of that decision on the point decided, and he appears to have laboured under the mistake, that the statute con--* eerning distresses, &c. applied to this case, and has buiit much of his argument on the 10th section of that act, Which provides that for any irregularity afterwards done by the party distraining, the distress shall not therefore be deemed unlawful, nor the party made a trespasser db initio, but the party aggrieved by such irregular or unlawful act, may, in an action of trespass, or on the case, recover satisfaction for the special damages. This pro - vision is expressly confined to distresses for rent, and is a copy of 11 Geo. II. c. 19.; and Mr. Justice Blackstone (3 Com. 9.) considers the law of distresses, as to beasts taken damage feasant, ■ untouched by that statute. It is unnecessary, then, to consider the question as to the nature of the action, or the manner of declaring under the 10th section of the act. The decision in Pratt v. Petrie, Was upon the 16th section of the act relative to the duties and privileges of towns. (Sess. 24. c. 78.) That section requires it as a duty of the person making distress of beasts doing damage,, as soon as conveniently may be, and within 24 hours thereafter, to apply to the fence viewers to appraise and ascertain the damage, and then the person distraining is authorized, as soon as he thinks proper, and within 48 hours after the distress, to cause the beasts to be put in the nearest pound, where they shall remain until the sum certified by the fence viewers and the fees of the pound master be paid, &c. It appears to me, that the sense of the legisIature is clearly expressed, that the damages must be ascertained before the beasts are put into a public pound: when they are thus impounded, they are in the custody of the law; they are, *b in execution by summary process, afforded by the law, for injuries done on a man’s land; and when impounded in a public pound, the party has no mode of regaining possession but by paying the damages, and the fees to the pound-keeper, or by replevying them. To maintain that beasts may be impounded before the damages are assessed, deprives the owner of a security afforded by the section of the act under consideration ; for if any dispute arises upon the sufficiency of the . fence, the fence viewers who appraise the damages are to determine thereon, and their decision is to be conclusive. A case may happen in which, though damage has been done, it may arise from the defect of fences of the party distraining, in which case no damages would be appraised. Again, it was proper to fix a time before the distress was impounded in a public pound, for they were liable to rescue in case the distress was taken without cause, or contrary to law; but after they are put in a public pound, they cannot be rescued. (3 Bl. Comm. 12.) It is unnecessary to sanction this mode of proceeding, because the distrainor may impound the beasts in a special pound, overt or covert. I have said thus much in vindication of the decision in Pratt v. Petrie. .

Did the impounding, under the circumstances, render the defendant a trespasser ab initio ? I think it clearly did. It was decided in The Six Carpenter’s’ Case, (8 Co. 290.) that when entry, authority, or license is given to any one by law, and he abuses it, he is a trespasser ab initio; but the neglect to pay a tavernor for wine, was an act of nonfeasance, which did not make the carpenters trespassers ab initio. In Bagshaw v. Goward, (Cro. Jac. 147.) the defendant distrained damage feasant, and worked, the distress, riding upon and drawing him, and it was held he was a trespasser ab initio ; the court said it was an abuse by trespass.— It is needless to multiply authorities; they all speak one uniform language. The act of impounding in a public pound, if unlawful, was an abuse of the authority given by larv, and it clearly rendered the whole a trespass ab initio.

The other judges were of the same opinion.

Per totam Curiam.

Judgment reversed.  