
    Pardon Brightman versus Charles Grinnell.
    A private individual who impounds a beast taken damage-feasant, in a town pound, is not liable for any injury which such beast may receive from cattle confined in the same pound.
    Trespass for taking and impounding the plaintiff’s cow.
    At the trial, in the Common Pleas, before Williams J., i was admitted that the cow was taken damage-feasant, and impounded by virtue of St. 1788, c. 65, § 3. The plaintiff offered evidence tending to prove, that after the taking, the cow was bruised and injured ; and he contended that this abuse made the defendant a trespasser ab initio. The defendant proved that the cow was impounded in the town pound, and offered evidence tending to prove, that if the cow was injured while in custody, it was by being gored by other cattle then restrained in the pound by other persons, without the fault, and against the will of the defendant. The evidence was submitted to the jury, with instructions, that if the cow was injured or abused by the defendant or his agents or servants, whether by negligence or actual violence, while in custody, the defendant would be answerable for damages in this action ; but if she was so in jured by other cattle then restrained in the pound, without any negligence or fault of the defendant, the verdict should be in his favor.
    The jury found a verdict for the defendant ; whereupon the plaintiff filed exceptions to the instructions of the judge. "
    Coffin,
    in support of the exceptions, said that it was the defendant’s duty to know whether the pound was a suitable place for impounding the cow, and if other cattle were there, to see that they were so secured that they could not injure her. He cited Jenner v. Joliffe, 9 Johns. R. 381.
    Warren, for the defendant,
    cited Noy’s Maxims, p. 43.
   Per Curiam.

It is clear that the action cannot be sustained. The defendant was authorized to put the cow into this inclosure, which was under the care of a pound-keeper, and he is not liable for consequences happening without his agency or knowledge.

Judgment of C. C. P. affirmed. 
      
       See Adams v. Adams, 13 Pick. 384.
     