Merritt v. O'Neil , 13 Johns. 477 ( 1816 )

Per Curiam.

This case comes before the court on a writ of error, to the common pleas of Ulster county; and the question arises upon a bill of exceptions taken at the trial. It was an action for trespass, for taking, damage feasant, a hog of the plaintiff, and impounding it, before having the damages ascertained. This has been repeatedly decided by this court to be irregular and unlawful, and to render the party impounding a trespasser. (2 Johns. Rep. 191. 10 Johns. Rep. 253.) It has been attempted, however, to take this case out of the principle which governed former decisions, because the plaintiff here is himself the pound-keeper, and the defendant not bound to put the distress into his custody. But, under the facts in this case, the defendant cannot claim any benefit from this distinction, if any exists, because he did put the hog into the pound, notwithstanding the plaintiff was the keeper; and it was received and treated as a beast impounded, and the defendant cannot be permitted to say the plaintiff was not bound to x’eceive the hog, or he to deliver it to him. The court below, however, decided, that the action could not be maintained, under such circumstances, and nonsuited the plaintiff. In this they erred^, and the judgment must be reversed.

Judgment reversed.