Pettit v. May , 34 Wis. 666 ( 1874 )

Dixon, C. J.

The statute (sec. 1, ch. 51, R. S.; 1 Tay. Stats., 793, § 1) provides: “ It shall be lawful for the owner or occupant of any lands to distrain all beasts doing damage within his inclosure; and when any distress shall be made of any beasts doing damage, the person distraining shall keep such beasts in some secure place on his premises or in some public pound in his town, city or village, until his damages shall be appraised; and within twenty-four hours after such distress (unless the same shall be made on Saturday, in which case, before the Tuesday morning following thereafter), .he shall apply to a justice of the peace, who shall appoint three disinterested freeholders of the town to appraise the damages.”

The horse of the plaintiff was in the street tearing down and destroying the defendant’s fence surrounding his inclosure, at the time the defendant seized and held him as an animal damage feasant; and the first question to be determined is, whether the horse was liable to be distrained under such circumstances. Was the horse “doing damage within his ip-closure,” so as to authorize the defendant to distrain and keep him in the manner prescribed by the statute ? The fence is a part of the inclosure of the owner or occupant of lands, and to •injure or destroy that is, in our judgment, to do “damage ■within the inclosure,” as those words are used and to he understood in the statute. Unlike the statute of Vermont and perhaps those of some other states, which authorize any person to impound “ any beast found in his inclosure doing damage,” our statute seems to be more comprehensive, and it is unnecessary that the beast should be found in the inclosure in order to justify the distress, but suffices that it is taken doing damage therein, although itself on the outside. Such appears to be the reasonable and proper construction of the statute, and the court accordingly so holds and applies it.

It is argued that the horse was captured, not while in the act of doing the damage, but after he had escaped, and hence that the seizure was unauthorized; and Warring v. Cripps, 23 Wis., 460, is cited. If the defendant had pursued’the horse a short distance along the street in order to take him, it is not conceived that the distress would have been unlawful. But this position is unsupported by the evidence. The inference is, that the horse was taken in the very act of doing the damage. The defendant, who was the only witness testifying upon the subject, says: “I took the horse right close to the fence, in the street.” He also testifies that the taking was at the time of the fence being injured.

The horse was distrained by the defendant after six o’clock in the evening; and before that hour of the next evening, or between four and five o’clock on the next afternoon, this action of replevin was commenced before a justice of the peace, and the horse taken from the possession of the defendant by virtue of the writ. The statute gives the distrainor of beasts twenty-four hours in which to apply to a justice of the peace for the appointment of appraisers. Until that time has elapsed, the possession of the party distraining cannot be regarded as tortious or unlawful. He may keep the animal distrained so long without becoming a wrongdoer, and without liability to action on the part of the owner. He may, it is true, by some act inconsistent with his right as distrainor, become a trespasser before that time has expired, or afterwards a trespasser «¡5 initio by some subsequent misconduct or omission. But his mere possession for the twenty-four hours, retaining custody of the beast bn his own premises or in the public pound, with proper care and with no wrongful act or omission, is lawful; and no action can be instituted or maintained against him to deprive him of such possession until the twenty-four hours have expired. Such seems to be the plain intent and effect of the statute. In this case the defendant had done nothing to forfeit his right of possession, or to make himself a wrongdoer, before the twenty-four hours had elapsed, and at the time the present action was commenced. The action was prematurely brought, and cannot, therefore, be maintained; for the plaintiff, 'to recover at all, must do so upon his right as it existed at the time the writ of replevin was served.

The copy of the village ordinance given in evidence, so far as that was relied upon in defense, was not certified in the manner prescribed by law. But the objection to its being received in evidence was too general, and this court cannot, therefore, say that it was improperly admitted. Evans v. Sprague, 30 Wis., 303.

Counsel for the defendant also says that this court must take judicial notice of the ordinances of the village of Fort Atkin-ison, pursuant to the requirements of sec. 6, ch. IY of the charter, P. & L. Laws of 1870, ch. 486. It is difficult to perceive how the legislature can thrust knowledge into the heads of the judges in this way, or what good can come of the .enactment, unless parties interested bring the ordinances or copies of them into court, and put them in evidence in the usual way.

But a difficulty with the ordinance, not overcome by the defendant, and not waived by the plaintiff, is, that it does not appear, from the certificate of the village clerk attached, to have ever been published. By section 5, chapter IY of the charter, publication was required before the ordinance could be in force.

But a still graver problem connected with the ordinance is, whether it would have been of any constitutional validity if it had been published. According to the decision of the court of appeals in Rockwell v Nearing, 35 N. Y., 302, it would have been invalid ; and the same infirmity extends to sec. 6, ch. 51, R. S., above cited (1 Tay. Stats., 794, § 6), which is very similar in its provisions to the New York statute which was declared void.

By the Court —Judgment reversed, and cause remanded for a new trial according to law.