320 impounding; injuries on highways, etc. 



was held that a tender made then was not too late f^ and if, 

 where the animal is in a private pound, the distrainor, by de- 

 manding an excessive sum for damages as the condition of 

 release, obtains such sum, the payment is not voluntary and 

 the amount may be recovered in an action for money had and 

 received."" But it has been held that case does not lie 

 against the distrainor for impounding the animals instead of 

 accepting the compensation tendered before the impound- 

 ing."^ 



Where the animals have been impounded, the owner can- 

 not replevy them until he pays or offers to pay the costs and 

 expenses of the proceeding."^ He does not, by paying the 

 pound-keeper's fees, waive his right to bring trespass for an 

 irregularity or omission."^ 



An ordinance fixing certain fees which must be paid before 

 an impounded animal will be released, creates no lien for any 

 fees or charges not included within those specified.'" 



A statute allowing impounding and demanding an allow- 

 ance for keeping where animals break through a lawful fence 

 must be strictly construed, and was held not to apply to other 

 cases, as where the owners agreed to have no partition fence, 

 but to keep their stock from trespassing.^^ 



84. Damages; Sale — The party impounding is confined in 

 his recovery to damages occasioned by the particular trespass 

 for which the animals were impounded. He cannot demand 

 payment for any damage previously done.'^^ The actual ex- 



"" Browne v. Powell, 4 Bing. 230, where it was also held that a tender to 

 the distrainor's wife who has acted as his agent is sufficient. 



°° Green v. Duckett, 11 Q. B. D. 275. See Gulliver 7'. Cosens, i C. B. 788. 



"' Anscomb v. Shore, 1 Taunt. 261. 



"'Wilhelm v. Scott, 14 Ind. App. 275; Schlachter v. Wachter, 78 111. 

 App. 67. 



™ Coffin V. Field, 7 Gush. (Mass.) 355. See as to fees, Golp v. Halstead 

 63 111. App. 116. 



™ Martin v. Foltz, 54 Neb. 162. " Dent v. Ross, 52 Miss. i88, 



"Holden v. Torrey, 31 Vt. 690; Smith v. Brownlee, lo Leg. News 



