damages; sale. 321 



penses of impounding may also be recovered, but not where 

 the animal has done no damage/^ or the impounder's act has 

 been unlawful.^* Where the- impounder sues for damages 

 without claiming expenses and the judgment is for the de- 

 fendant, the former is not entitled to any compensation for 

 keeping the animals pending the suit.'^^ 



The statutes generally provide that a sale shall follow the 

 impounding, should the owner not appear or refuse to dis- 

 charge his obligations. The question of summary sales has 

 been already discussed,^^ and the same principles apply to a 

 sale after an impounding. Where the owner is subjected to 

 a penalty, there must be some judicial inquiry into the facts. 

 In an Illinois case it is said: "Every citizen has a right to a 

 judicial investigation when charged with an offense. Suffer- 

 ing horses to run at large in the streets of the city was an 

 offense punishable by a fine of five dollars for each head. 

 The seventh section of the ordinance empowers the pound- 

 master to give notice that, unless the animals are claimed by 

 the owners and the penalty and the cost of their keeping paid 

 within five days thereafter, the animals will be sold to satisfy 

 the same. This provision is void as contravening that con- 

 stitutional right every man has to an investigation in court 

 when charged with an ofifense punishable by fine. Such a 

 penalty can only be enforced by action at law, in which the 

 owner would have a right to show he was not liable to the 

 penalty — that his case was not within the spirit and meaning 

 of the ordinance." '''' Where the sale of the animal is for the 

 purpose only of paying the expenses of the impounding, it 



(Can.) 405; Meunier dit Legace v. Cardinal, Rap. Jud. Quebec, 10 C. 

 S. 250. 



"Dudley v. McKenzie, 54 Vt. 685; Osgood v. Green, 33 N. H. 318; 

 Dunton v. Reed, 17 Me. 178. 



'* McBride v. Hicklin, 124 Ind. 499. "' Hamil v. Cox, 90 Ga. 54. 



™ See § 80, supra. 



" Willis V. Legris, 45 111. 289, 292. See Spitler v. Young, 63 Mo. 42. 



That an act providing for the sale of an impounded animal after notice 

 is not unconstitutional, see Brophy v. Hyatt, lO Colo. 223. 

 21 



