Bell, C. J.
Upon the first point raised by the plaintiff, I have not been so fortunate as to find any authority. Upon the reasons of the case, it would seem that a party, seizing cattle trespassing on his land, should not be bound to lay aside all other business, and proceed forthwith to drive them to the pound. He should be allowed a reasonable time for the purpose, regarding all the circumstances j as,if he had found the cattle injuring his crops at midnight, he should not be required to drive them to the pound till a reasonable hour in the morning. What is reasonable is in every case to be determined by the sound judgment of those who try the case, except where repeated decisions of the courts have fixed a rule. This case is not of that class.
The case of officers making arrests, presents the nearest analogy to this, that I have been able to find. Chitty (1 Cr. Law, 59,) says, [476]*476when the officer has made his arrest, he is as soon as possible to bring the party to the jail, or to the justice, according to the import of the warrant, and if he is guilty of unreasonable delay, it is a breach of duty. 2 Hale, 102; Foster, 119. But if the time be unreasonable, as in or near the night, whereby he cannot attend the justice; or if the party be ill and unable at present to be brought; or if there be danger of a rescue; he may, as the case shall require, secure him in the stocks, or, in case the quality of the prisoner, or his indisposition so require, detain him in a house till the next day, or until it may be reasonable to bring him. 2 Hale, 119, 120, 95, 96. To the same point are Com. Dig. Imprisonment, H. 5; Saunders’ Pl. & E. 520; Leigh’s N. P. 1434-5; Ham. N. P. 142; Wat. Arch. Cr. Pl. 24-1, and 34-2; Davis v. Capper, 4 C. & P. 434; S. C. 10 B. & C. 28; where it was held that the reasonableness of the time of commitment is a question for the jury, under the direction of the court. Scavage v. Tateham, Cro. Eliz. 829; Wright v. Court, 4 B. C. 596; 6 D. & R. 623; Arnold v. Steeves, 10 Wend. 514; Pratt v. Hill, 16 Barb. 303.
At the time the cow was taken up, 4 o’clock, P. M., the pound had been out of repair and unfit for use, and for a long time no pound-keeper had been sworn. It was at a distance, and in an unfrequented part of the town. It was not unreasonable that time should be taken to ascertain if the pound was in a legal condition, since in that case the cow must be impounded there, and if not, then in the injured party’s own barn or enclosure. It could not be useful to drive the animal to the town pound, supposed to be ruinous, only to be driven back. Whether more than a reasonable time was taken for this purpose is not stated, and we think there are no sufficient data in the case to enable us, as matter of law, to say that the time was so unreasonable as to render illegal the subsequent proceedings. The question is one proper for the jury.
n. As in the eye of the law every man’s land is enclosed, though not surrounded by any visible and material fence, there seems to us no substantial foundation for either of the positions taken by the plaintiff, that the party cannot avail himself of the statute on impounding till he makes his field an enclosure; and that the notices are bad because they do not state that the animal was doing damage in the defendant’s enclosure, but only on his premises. It sufficiently appears that the creature was doing damage to the defendant’s real estate, and any land is deemed an enclosure. We see no reason to suppose that the statute was intended to apply only to lands actually enclosed by fences: 2 Hill Torts, 38; Walk. Am. Law 553; 2 Bla. Com. 209; Ham. N. P. 151; except as against adjoining owners. Rev. Stat. ch. 136 sec. 12.
HI. The application for an appraisal of the damages was properly made under the 7th section of the statute, which provides, that, if the owner * * shall neglect for the space of forty-eight hours, or shall refuse to pay the damages estimated by the party impounding, * * Cither of said parties may apply to some justice of the peace, * * * appoint three disinterested persons to appraise such damages. The 10th [477]*477section provides, that, if such creatures impounded shall remain in the pound for four days, * * the person impounding * * may apply to a justice for an appraisal of the damages, if no appraisal' has been made, and for an order for the sale or appraisal of such property. As either party may apply for an appraisal of the damages, and only the party impounding, for a sale or appraisal of the animal, it seems evident that it could not have been the intention that the word may should be construed shall, so that, after four days, the application must be for both the appraisal of the damages and the appraisal or sale of the property ; but that the design was to give to either party the option of a separate appraisal of the damages, and to the party impounding the right to imite the two objects in one application, where the damages had not been appraised. The construction, which would make the condition, "if no appraisal has been made,” a condition precedent to an application for an order of sale, or appraisal of the property, is inadmissible.
IV. The omission of the appraisers to take the oath required by the statute, before issuing notice to the party, is waived, if the party having notice of the fact proceeds to the hearing without objection. Pet. of Gilford, 35 N. H. 124; Ela v. McConihe, 35 N. H. 279. Where the law requires an oath, before proceeding, and the party objecting has no notice, it is a fatal defect. 35 N. H. 279. So far as we can form an opinion from the imperfect state of facts presented by the case, it seems fair to infer that any objection in this case was waived, since -the appraisers state that they "heard the parties and their evidence;” but the fact is not so stated as to make it certain that the time of taking the oath was known to the plaintiff.
V. The report is signed by two of the appraisers only. It is objected that it does not appear that the third acted as ~an appraiser, or was even present. The principle of the objection is sound. The only doubt is whether the case shows the fact to be as the objection assumes. The justice appointed three appraisers; the case then says : "Said appraisers, on said 14th day of October, served a notice upon the plaintiff, that they would appraise the damages on the 15th of said October, but were not sworn to the faithfel discharge of their duties till said 15th of October; said appraisers made a report, of which the following is a true copy,” &c. Though the appraisal does not show it, there seems sufficient in this statement to lead to the impression that they were all sworn, met, and acted. This point can be made certain, and the appraisal amended according to the fact, if necessary.
VI. It is claimed that the sale of the cow was illegal, by reason of the delay, which, it is said, shows gross laches, making the defendant a wrong-doer from the beginning; but it is a settled rule, that mere nonfeasance does not make a party a wrong-doer ah initio. Ordway v. Ferrin, 3 N. H. 69; Parker v. Pattee, 4 N. H. 530; Gardner v. Campbell, 15 Johns. 401; Six Carpenters’ Case, 8 Co. 290; Ferrin v. Symonds, 11 N. H. 366. Hie statute imposes no further duty on the party distraining, than that of giving notice of the impounding.
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Bell, C. J.
Upon the first point raised by the plaintiff, I have not been so fortunate as to find any authority. Upon the reasons of the case, it would seem that a party, seizing cattle trespassing on his land, should not be bound to lay aside all other business, and proceed forthwith to drive them to the pound. He should be allowed a reasonable time for the purpose, regarding all the circumstances j as,if he had found the cattle injuring his crops at midnight, he should not be required to drive them to the pound till a reasonable hour in the morning. What is reasonable is in every case to be determined by the sound judgment of those who try the case, except where repeated decisions of the courts have fixed a rule. This case is not of that class.
The case of officers making arrests, presents the nearest analogy to this, that I have been able to find. Chitty (1 Cr. Law, 59,) says, [476]*476when the officer has made his arrest, he is as soon as possible to bring the party to the jail, or to the justice, according to the import of the warrant, and if he is guilty of unreasonable delay, it is a breach of duty. 2 Hale, 102; Foster, 119. But if the time be unreasonable, as in or near the night, whereby he cannot attend the justice; or if the party be ill and unable at present to be brought; or if there be danger of a rescue; he may, as the case shall require, secure him in the stocks, or, in case the quality of the prisoner, or his indisposition so require, detain him in a house till the next day, or until it may be reasonable to bring him. 2 Hale, 119, 120, 95, 96. To the same point are Com. Dig. Imprisonment, H. 5; Saunders’ Pl. & E. 520; Leigh’s N. P. 1434-5; Ham. N. P. 142; Wat. Arch. Cr. Pl. 24-1, and 34-2; Davis v. Capper, 4 C. & P. 434; S. C. 10 B. & C. 28; where it was held that the reasonableness of the time of commitment is a question for the jury, under the direction of the court. Scavage v. Tateham, Cro. Eliz. 829; Wright v. Court, 4 B. C. 596; 6 D. & R. 623; Arnold v. Steeves, 10 Wend. 514; Pratt v. Hill, 16 Barb. 303.
At the time the cow was taken up, 4 o’clock, P. M., the pound had been out of repair and unfit for use, and for a long time no pound-keeper had been sworn. It was at a distance, and in an unfrequented part of the town. It was not unreasonable that time should be taken to ascertain if the pound was in a legal condition, since in that case the cow must be impounded there, and if not, then in the injured party’s own barn or enclosure. It could not be useful to drive the animal to the town pound, supposed to be ruinous, only to be driven back. Whether more than a reasonable time was taken for this purpose is not stated, and we think there are no sufficient data in the case to enable us, as matter of law, to say that the time was so unreasonable as to render illegal the subsequent proceedings. The question is one proper for the jury.
n. As in the eye of the law every man’s land is enclosed, though not surrounded by any visible and material fence, there seems to us no substantial foundation for either of the positions taken by the plaintiff, that the party cannot avail himself of the statute on impounding till he makes his field an enclosure; and that the notices are bad because they do not state that the animal was doing damage in the defendant’s enclosure, but only on his premises. It sufficiently appears that the creature was doing damage to the defendant’s real estate, and any land is deemed an enclosure. We see no reason to suppose that the statute was intended to apply only to lands actually enclosed by fences: 2 Hill Torts, 38; Walk. Am. Law 553; 2 Bla. Com. 209; Ham. N. P. 151; except as against adjoining owners. Rev. Stat. ch. 136 sec. 12.
HI. The application for an appraisal of the damages was properly made under the 7th section of the statute, which provides, that, if the owner * * shall neglect for the space of forty-eight hours, or shall refuse to pay the damages estimated by the party impounding, * * Cither of said parties may apply to some justice of the peace, * * * appoint three disinterested persons to appraise such damages. The 10th [477]*477section provides, that, if such creatures impounded shall remain in the pound for four days, * * the person impounding * * may apply to a justice for an appraisal of the damages, if no appraisal' has been made, and for an order for the sale or appraisal of such property. As either party may apply for an appraisal of the damages, and only the party impounding, for a sale or appraisal of the animal, it seems evident that it could not have been the intention that the word may should be construed shall, so that, after four days, the application must be for both the appraisal of the damages and the appraisal or sale of the property ; but that the design was to give to either party the option of a separate appraisal of the damages, and to the party impounding the right to imite the two objects in one application, where the damages had not been appraised. The construction, which would make the condition, "if no appraisal has been made,” a condition precedent to an application for an order of sale, or appraisal of the property, is inadmissible.
IV. The omission of the appraisers to take the oath required by the statute, before issuing notice to the party, is waived, if the party having notice of the fact proceeds to the hearing without objection. Pet. of Gilford, 35 N. H. 124; Ela v. McConihe, 35 N. H. 279. Where the law requires an oath, before proceeding, and the party objecting has no notice, it is a fatal defect. 35 N. H. 279. So far as we can form an opinion from the imperfect state of facts presented by the case, it seems fair to infer that any objection in this case was waived, since -the appraisers state that they "heard the parties and their evidence;” but the fact is not so stated as to make it certain that the time of taking the oath was known to the plaintiff.
V. The report is signed by two of the appraisers only. It is objected that it does not appear that the third acted as ~an appraiser, or was even present. The principle of the objection is sound. The only doubt is whether the case shows the fact to be as the objection assumes. The justice appointed three appraisers; the case then says : "Said appraisers, on said 14th day of October, served a notice upon the plaintiff, that they would appraise the damages on the 15th of said October, but were not sworn to the faithfel discharge of their duties till said 15th of October; said appraisers made a report, of which the following is a true copy,” &c. Though the appraisal does not show it, there seems sufficient in this statement to lead to the impression that they were all sworn, met, and acted. This point can be made certain, and the appraisal amended according to the fact, if necessary.
VI. It is claimed that the sale of the cow was illegal, by reason of the delay, which, it is said, shows gross laches, making the defendant a wrong-doer from the beginning; but it is a settled rule, that mere nonfeasance does not make a party a wrong-doer ah initio. Ordway v. Ferrin, 3 N. H. 69; Parker v. Pattee, 4 N. H. 530; Gardner v. Campbell, 15 Johns. 401; Six Carpenters’ Case, 8 Co. 290; Ferrin v. Symonds, 11 N. H. 366. Hie statute imposes no further duty on the party distraining, than that of giving notice of the impounding. He has the option of proceeding, by appraisal or sale, to obtain payment of his damages, or, if no owner appears, he may take the creatures out of [478]*478the pound, and proceed with them as strays. Rev. Stat., ch. 137, sec. 13. At common law, beasts, taken damage feasant and impounded, must remain in the pound till-the owner made satisfaction, or contested the right to distrain, by replevying the chattels. 3 Bla. Com. 13.
VII. The defendant contends that the action of trover is not the proper action. "The wrongful taking,” says Chitty, (1 Plead. 153,) "of the goods of another, who has the right of immediate possession, is of itself a conversion, and, whenever trespass will lie for taking goods of the plaintiff wrongfully, trover will also lie. Rackham v. Jesup, 3 Wils. 332; Cooper v. Monke, Willes, 55; 2 Saund. 47 k. n. 1. And if the goods be wrongfully taken as a distress, though they be not removed from the place in which they were, yet trover may be supported, because the possession in point of law is changed by their being seized as a distress. Cooper v. Monke, 1 Willes 56.” The same point is held in Bishop v. Montague, Cro. El. 824; Skipwith v. Blanchard, 6 T. R. 298; Cro. Jac. 50; Cooper v. Chitty, 1 Burr. 31; and in Put v. Rawsterne, 4 Sir T. Ray 472, in which it was held that trover would lie for goods taken under a wrongful distress; Pierce v. Benjamin, 14 Pick 360; Farrington v. Payne, 15 Johns. 431; Prescott v. Wright, 6 Mass. 20; Wallis v. Truesdell, 6 Pick. 455; Connah v. Hale, 28 Wend. 462; 2 Saund. Pl. and Ev. 869.
VIII. In trover it is not usual to plead any other plea than the general issue, not guilty, except the plea of the statute of limitations and a release. 1 Ch. Pl. 490. The defendant, under the general issue of not guilty, may prove that the conversion complained of was done by authority of law in making a distress, though the proceedings may have been irregular. Wallace v. King, 1 H. B. 13; see Skipwith v. Blanchard, 6 T. R. 298; 3 Phill. Ev. 229.
Case discharged.