MANNER OF IMPOUNDING ; REMEDIES. 315 



in good faith to deliver them at the pound without endanger- 

 ing the custody he has." 



The distrainor of cattle is bound to impound them in a 

 proper pound, and if the usual one is not in a fit condition he 

 must find another.^^ So, the party impounding, must feed 

 and water the cattle properly according to the usage of the 

 country and of good husbandry or he will be considered a 

 trespasser ab initio.^^ Merely driving them off the land into 

 the highway and detaining them till the owner comes to take 

 them away and demanding a sum of money as damages, do 

 not amount, as a matter of law, to an impounding.^'' Where 

 a field-driver in taking an animal to the pound drives it first 

 upon the owner's premises his act is not necessarily unlaw- 

 ful.^^ And where running at large is unlawful, an officer may 

 pursue the animals to private property used as a common or 

 take them up and impound them when loose upon a com- 

 mon. "To hold that such right having once attached entirely 

 ceased or became suspended whenever such cattle tem- 

 porarily passed from such public place and became trespassers 

 upon private property, would tend to defeat the very object 

 of the ordinance." *^ One driving an animal from one place 

 in a district where running at large is forbidden to another, 

 for the purpose of impounding it, is not guilty of driving it 

 from a lawful into an unlawful district to be impounded.^^ 



The impounder has the right to use the same force to main- 

 tain his possession that a sheriff has to protect his possession 

 of property taken by him on legal process. And one so 

 taking possession does not, by afterwards abandoning his in- 

 tention, become a trespasser ab initio so as to be liable for the 

 force he used in defence of the property before he gave it up.^* 



" Bignell v. Clarke, s H. & N. 485; Wilder v. Speer, 8 A. & E. 547- 



"•Adams v. Adams, 13 Pick. (Mass.) 384. 



''° Conners v. Loker, 134 Mass. 510. 



" Parker v. Jones, i Allen (Mass.) 270. 



" O'Mally V. McGinn, S3 Wis. 353- " Ghent v. State, 96 Ala. 17. 



" Barrows v. Fassett, 36 Vt. 625. 



