Rollins v. Jones , 39 N.H. 475 ( 1859 )

Bell, C. J.^*

By chapter 137 of the Revised Statutes, section 3, the person impounding any creatures shall leave with the pound-keeper, in writing, an estimate of the damages done by such creatures, or of the penalty incurred by the owner, and the amount of the fees and charges incurred.

The pleadings in this case raise the question at what time this estimate must be left. The plaintiff contends that it must be left before or at the time of impounding, while the defendant maintains that he is not bound to leave it at the time of impounding, or before, but that it will be sufficient if he leaves it in a reasonable time after the gate of the pound is closed upon the animals.

The question has been ingeniously argued by the counsel, and all the light thrown upon it which it admits of. It is to be decided upon a reasonable construction of the statute ; and considering that it is the duty of the party impounding to impound the creatures without any unnecessary delay; that it can make no difference to the owner of the cattle whether the party impounding delays to cause the cattle to be put in the pound until he can make out his estimate, or takes an equal amount of time to draw up the writing after the pound-keeper has the animals in custody; and as it must be very much more convenient for the party impounding to put the cattle in a place of security in the pound, before making the notice,’it seems to us the more reasonable construction of the statute to hold that the notice left with the pound-keeper will be in season, if it is left with him in a reasonable time after the cattle are put in the pound. We understand, by a reasonable time, such space as is necessary, under all the circumstances, to make out the notice with proper care. If the statute had been worded, “ shall forthwith leave,” &c., which would be a more urgent expression than the language used, we think it must have received the same construction.

The word impounding is dwelt upon as conveying the idea that the notice must be given to the pound-keeper at the very moment of impounding; while it might be said that the word leave, in a common use of it, implies that the party is to do a thing before or at the time of his going away himself.

The usual course of a sheriff committing a party to jail, is, as we understand, to proceed with the prisoner to the jail, and deliver him to the jailer, and then make out his copy and return, to be left at the jail. It would be very difficult for an officer carrying a refractory prisoner to the jail to make out his return, until he had placed him in safe custody.

The case of Sherman v. Braman, 13 Met. 407, to which we are referred, is not in point. It was not there decided at what time the estimate of damages should be left with the pound-keeper. The question was, whether the party impounding, who had left no notice, could avail himself of a notice subsequently given by the pound-keeper, in his capacity of field-driver, and it was held he could not.

Demurrer sustained.

* Doe, J., having been of counsel, did not sit.