Young v. Rand

18 N.H. 569

Opinion

Gilchrist, J.

Any person may impound beasts found in his enclosure damage feasant; so that no question can be made concerning the right of the original defendant to drive away, and impound in the proper pound, the plaintiff’s beast, which is the subject of the controversy.

But it is said that the defendant omitted to give the notice required by the statute, and that he must therefore be deemed a trespasser ab initio. The notice is said to be defective in not containing a sufficient description of the close, and in not having been signed by the party who caused it to be given.

We think, however, that it is unnecessary to make any question as to the sufficiency of the notice, since the omission to give any notice whatever would have been a mere nonfeasance, and would not have had the effect of making the defendant a trespasser ab initio. This was so adjudged in Kimball v. Adams, 8 N. H. Rep. 182.

It is not a case of the abuse of a distress, and of excess in the use of a license, or authority in law, but a mere omission of an act not required as preliminary to the taking and impounding, and only required to be performed by the party at a subsequent stage of the proceeding. For his omission to perform this act the action of trespass for the original taking is not the appropriate remedy.

The verdict, which was for the original plaintiff in the case, must .therefore be set aside, and there -must bo

Judgment for the defendant.