Eastman, J.
The decision of this case depends upon the construction to be put upon several of the provisons of chapter [324]*324137 of the Revised Statutes, relative to pounds and the distraining of animals. Comp. Stat., ch. 143. This statute, as applicable to the questions raised upon this case as it now stands, varies from the common law so essentially that little light is to be gained from that source.
The first section of the act provides, among other things, that any person may impound any swine, neat cattle, &c., “ that shall be found doing damage in his enclosure.”
In the third, fourth and fifth sections it is provided that the person impounding any creatures shall leave with the pound-keeper in writing an estimate of the damage done by such creatures, and the amount of the fees and charges incurred ; that he shall, within twenty-four hours from the time of impounding, cause to be delivered to the owner, or person who last had them in his possession or keeping, if known to him, or cause to be left at his usual place of abode, a notice in writing, describing the creatures impounded, stating his estimate of the damage done, and the time when and the place where the same was done, the amount of fees and charges there incurred, and the place of impounding: That when the owner is not known the person impounding shall, within the same time, post up a like notice in some public place in the town and in two adjoining towns.
The sixth and seventh sections provide, that if the owner or party claiming the creatures shall pay the estimated damages and charges to the person impounding, or to the pound-keeper, the creatures shall forthwith be discharged. Rut if payment be neglected for forty-eight hours, or if the owner or claimant shall refuse to pay the damages estimated, either party may apply to a justice of the peace, who, after hearing, shall appoint three disinterested persons to appraise such damages.
The eighth section is as follows: “ The appraisers so appointed shall notify the parties, and as early as practicable view the place where the damage is alleged to be done, and hear the parties and their evidence, and report to the justice whether any damage was done by such creatures, at the time of their last being in such enclosure only, and the sum at which they estimate [325]*325the same; and such report, signed by a majority of such appraisers, shall be conclusive upon the parties.”
And the ninth section provides that upon payment of the damages so appraised and the charges incurred, with the fees of the justice and appraisers, to be assessed by the justice, such creatures shall be discharged from the pound.
The remaining sections of the chapter contain provisions for the sale of the property, in case it be not discharged from the pound. Such is a synopsis of the statute.
The defendant, in answer to the plaintiffs writ of replevin, by which the animal in question was taken from the pound, has avowed the taking in his close as a distress for the damage done.
To this avowry the plaintiff has pleaded, in substance, that after the animal was impounded, and the defendant had left with the pound-keeper an estimate of the damages done and of the fees and charges incurred, and after notice of the same, the plaintiff refused to pay the damages, and applied to a justice of the peace for the appointment of appraisers to assess the damages ; that these were appointed; that they gave notice of the hearing ; that the parties were fully heard in the premises ; that the appraisers then and there determined that no damage was done by the animal in the defendant’s close, as alleged ; and that they then and there made their report in writing to that effect and delivered the same to the justice.
To this plea the defendant has demurred, and he places his demurrer upon two grounds; first, that the plea does not allege that any notice was given the defendant of the report of the appraisers to the justice, or that he in any way had notice ; and, 2d, that the report of the appraisers that no damage was done, does not deprive the defendant of his lien upon the animal for the costs incurred prior to the report.
It is no doubt true, that whenever a party has a right to be heard before a tribunal, whatever may be its character, an opportunity should be given, upon notice, to exercise that right; otherwise the proceedings will be erroneous. But where the [326]*326matter is not of that character, but lies as much within the cognizance of the one party as the other, notice need not be given or stated in pleading. These are general principles, and it is not necessary to cite authorities to sustain them.
By the statute which we have cited, it will be observed that the parties are to be notified and heard upon the question of the appointment of the appraisers, and also upon the general question of the amount of damages to be assessed by them. But it makes no provision for any notice or hearing upon the return of the report of the appraisers to the justice, nor does it appear to contemplate any such course, for it expressly provides that the appraisal “ shall be conclusive upon the parties.” The action of the appraisers being conclusive, there is nothing for the magistrate to do but to receive the report; and consequently there can be no hearing before him upon that question, and no occasion for notice to any one. He is made the depositary of the report, and the knowledge of its existence and contents is open to both parties, and equally within the knowledge of both. The matter therefore falls within the general rule, that, being as much within the cognizance of the one party as the other, notice need not be given nor averred in pleading.
The other question raised by the demurrer is of more magnitude, and of much more importance. It is briefly this ; whether cattle that are wrongfully in the enclosure of another can be dis-trained and impounded, when no actual damages have been done. Can they be impounded for nominal damages only ?
The statute by which cattle are allowed to be distrained, is one giving extraordinary powers. Before any judgment is recovered, and without any legal process, or the act of any officer of the law, the aggrieved party is himself personally empowered to seize and impound his neighbors’ beasts, found damage feasant in his enclosure. Blackstone says that it is one of those cases in which the law allows a man to be his own avenger, or to administer redress to himself. He also remarks that the taking of cattle damage feasant arises from the necessity of the thing itself, as it might otherwise be impossible at a future time to [327]*327ascertain whose cattle they were that committed the trespass or damage. 3 Black. Com. 6.
The creatures, however, are in the first instance taken only as a pledge for the satisfaction of the damages done, and the costs consequent upon their being driven to pound follow as an incident of their rightful capture. No costs can be recovered unless they are legally impounded ; and he who would justify his acts under the statute must show that he has strictly complied with its provisions. McIntire v. Marden, 9 N. H. 288, 292; Kimball v. Adams, 3 N. H. 182.
The animals are not forfeited by reason of the damages, nor can they be sold until after remaining in the pound a specified number of days; and then only when no one appears to pay the damages and expenses.
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Eastman, J.
The decision of this case depends upon the construction to be put upon several of the provisons of chapter [324]*324137 of the Revised Statutes, relative to pounds and the distraining of animals. Comp. Stat., ch. 143. This statute, as applicable to the questions raised upon this case as it now stands, varies from the common law so essentially that little light is to be gained from that source.
The first section of the act provides, among other things, that any person may impound any swine, neat cattle, &c., “ that shall be found doing damage in his enclosure.”
In the third, fourth and fifth sections it is provided that the person impounding any creatures shall leave with the pound-keeper in writing an estimate of the damage done by such creatures, and the amount of the fees and charges incurred ; that he shall, within twenty-four hours from the time of impounding, cause to be delivered to the owner, or person who last had them in his possession or keeping, if known to him, or cause to be left at his usual place of abode, a notice in writing, describing the creatures impounded, stating his estimate of the damage done, and the time when and the place where the same was done, the amount of fees and charges there incurred, and the place of impounding: That when the owner is not known the person impounding shall, within the same time, post up a like notice in some public place in the town and in two adjoining towns.
The sixth and seventh sections provide, that if the owner or party claiming the creatures shall pay the estimated damages and charges to the person impounding, or to the pound-keeper, the creatures shall forthwith be discharged. Rut if payment be neglected for forty-eight hours, or if the owner or claimant shall refuse to pay the damages estimated, either party may apply to a justice of the peace, who, after hearing, shall appoint three disinterested persons to appraise such damages.
The eighth section is as follows: “ The appraisers so appointed shall notify the parties, and as early as practicable view the place where the damage is alleged to be done, and hear the parties and their evidence, and report to the justice whether any damage was done by such creatures, at the time of their last being in such enclosure only, and the sum at which they estimate [325]*325the same; and such report, signed by a majority of such appraisers, shall be conclusive upon the parties.”
And the ninth section provides that upon payment of the damages so appraised and the charges incurred, with the fees of the justice and appraisers, to be assessed by the justice, such creatures shall be discharged from the pound.
The remaining sections of the chapter contain provisions for the sale of the property, in case it be not discharged from the pound. Such is a synopsis of the statute.
The defendant, in answer to the plaintiffs writ of replevin, by which the animal in question was taken from the pound, has avowed the taking in his close as a distress for the damage done.
To this avowry the plaintiff has pleaded, in substance, that after the animal was impounded, and the defendant had left with the pound-keeper an estimate of the damages done and of the fees and charges incurred, and after notice of the same, the plaintiff refused to pay the damages, and applied to a justice of the peace for the appointment of appraisers to assess the damages ; that these were appointed; that they gave notice of the hearing ; that the parties were fully heard in the premises ; that the appraisers then and there determined that no damage was done by the animal in the defendant’s close, as alleged ; and that they then and there made their report in writing to that effect and delivered the same to the justice.
To this plea the defendant has demurred, and he places his demurrer upon two grounds; first, that the plea does not allege that any notice was given the defendant of the report of the appraisers to the justice, or that he in any way had notice ; and, 2d, that the report of the appraisers that no damage was done, does not deprive the defendant of his lien upon the animal for the costs incurred prior to the report.
It is no doubt true, that whenever a party has a right to be heard before a tribunal, whatever may be its character, an opportunity should be given, upon notice, to exercise that right; otherwise the proceedings will be erroneous. But where the [326]*326matter is not of that character, but lies as much within the cognizance of the one party as the other, notice need not be given or stated in pleading. These are general principles, and it is not necessary to cite authorities to sustain them.
By the statute which we have cited, it will be observed that the parties are to be notified and heard upon the question of the appointment of the appraisers, and also upon the general question of the amount of damages to be assessed by them. But it makes no provision for any notice or hearing upon the return of the report of the appraisers to the justice, nor does it appear to contemplate any such course, for it expressly provides that the appraisal “ shall be conclusive upon the parties.” The action of the appraisers being conclusive, there is nothing for the magistrate to do but to receive the report; and consequently there can be no hearing before him upon that question, and no occasion for notice to any one. He is made the depositary of the report, and the knowledge of its existence and contents is open to both parties, and equally within the knowledge of both. The matter therefore falls within the general rule, that, being as much within the cognizance of the one party as the other, notice need not be given nor averred in pleading.
The other question raised by the demurrer is of more magnitude, and of much more importance. It is briefly this ; whether cattle that are wrongfully in the enclosure of another can be dis-trained and impounded, when no actual damages have been done. Can they be impounded for nominal damages only ?
The statute by which cattle are allowed to be distrained, is one giving extraordinary powers. Before any judgment is recovered, and without any legal process, or the act of any officer of the law, the aggrieved party is himself personally empowered to seize and impound his neighbors’ beasts, found damage feasant in his enclosure. Blackstone says that it is one of those cases in which the law allows a man to be his own avenger, or to administer redress to himself. He also remarks that the taking of cattle damage feasant arises from the necessity of the thing itself, as it might otherwise be impossible at a future time to [327]*327ascertain whose cattle they were that committed the trespass or damage. 3 Black. Com. 6.
The creatures, however, are in the first instance taken only as a pledge for the satisfaction of the damages done, and the costs consequent upon their being driven to pound follow as an incident of their rightful capture. No costs can be recovered unless they are legally impounded ; and he who would justify his acts under the statute must show that he has strictly complied with its provisions. McIntire v. Marden, 9 N. H. 288, 292; Kimball v. Adams, 3 N. H. 182.
The animals are not forfeited by reason of the damages, nor can they be sold until after remaining in the pound a specified number of days; and then only when no one appears to pay the damages and expenses. It is as security for the damage already done that the law permits them to be impounded, and when compensation is made for the injury sustained, with the expenses incident to the injury, the security is relinquished by the surrender of the cattle.
It would seem, then, to follow as a necessary consequence that there must be actual, substantive damage committed, before the creatures can be impounded. There is no propriety or reason in taking forcible possession of property in pledge or as security for damages which have no existence except in theory only; and we think that the law should not be held to give this extraordinary power of impounding, whereby a party acts as his own avenger, for a mere nominal trespass. Sufficient protection and sufficient redress is afforded by the action of trespass for all such nominal injuries.
It appears to us, also, that the framers of our statute intended to confine the power of impounding for damage feasant to cases of actual damages only, and that such is the fair deduction from the language used. If the creatures are found in the enclosure “ doing damage,” they may be impounded. This would seem to imply that the damage must be something done; something more than a mere theoretical injury; that it must be actual. The appraisers are to “ view the place where the dam[328]*328age is alleged to be done,” and are to report to the justice “ whether any damage was done by such creatures.” Of course if none was done, they report accordingly. The phrase, “ whether any damage was done,” is evidently a condensation, by the revisors, of the language used in the act of 1791, where it is said that the appraisers shall make return to the justice, “ either that the party has sustained damage, and how much, or that such party hath sustained no damage.” N. H. Laws 206, ed. 1830.
Upon the payment of the damages appraised and the charges incurred, the creatures are to be discharged from the pound; but if no damages are assessed, there are of course none to be paid, and the report of the appraisers in such a case is conclusive upon the question, that none was committed. Where, therefore, cattle are impounded and the appraisers decide that no damages were done to the close of the party impounding, it follows as a proper deduction that they were illegally impounded, for they must be doing damage in his enclosure, otherwise he had no power to impound them. Actual damages, then, are essential to a legal impounding for damage feasant.
If no actual damages are done, so that the impounding is unauthorized, there can be no legal claim upon the owner of the cattle for the charges and fees consequent upon the impounding; and the creatures cannot be detained for the payment of any such claim. The fees and charges grow out of the impounding. They are the expenses of driving the animals to the pound and of keeping them while there, as well as other fees incident to the impounding. All arise from the act of driving them to the pound. If, then, that act is unauthorized by law, all the costs incident to it, must, so far. as the owner of the cattle is to be considered, fail as a claim against him. If the cattle cannot be held for the damages, they certainly cannot for the costs, for the damages are the foundation of the costs, and the latter cannot exist without the former.
The view which we have taken of our statute upon this question appears to have been applied in Maine upon theirs. Dunton [329]*329v. Reed, 5 Shepl. 179. And we are not aware that, upon statutes containing like provisions, any other rule has prevailed elsewhere. The case of Mills v. Stark, 4 N. H. 512, cited by the defendant, does not conflict with this decision.
We are entirely satisfied that there is no law in this State authorizing the impounding of animals for merely nominal trespasses. An animal may pass through an open gate or bars, without doing the slightest damage; still the owner may be liable in trespass, for a right has been infringed; and that such a right may be preserved, the action is properly sustainable. But our statute, we think, was never intended to authorize the impounding of an animal for such nominal damages. The evil requires no such remedy, and it is only in cases of actual damage that a person is permitted to execute the law himself. We are therefore of opinion that the plaintiff’s plea to the avowry is good, and that the
Demurrer must le overruled.
Pbebey, C. J., being of counsel, did not sit.