Theodore Lyman versus Jonas C. Gipson, 18 Pick. 422

Shaw C. J. delivered the opinion of the Court. The Court are of opinion, that it was not competent for the plaintiff to give in evidence the statements of declarations of Bemis, especially those made after the sale ; and for this cause a new' trial must be granted. As several other points were made, a decision of which may be important, should another trial be had, we have taken them into consideration.

It was objected to the regularity of the proceedings under the distress, that the appraisers took into consideration, damage done to personal property ; and this gave rise to some incidental questions as to the mode of proving the fact, if admissible, by the testimony of the appraisers.

As in an action of trespass quare clausum such damage could be recovered by way of aggravation, and as the statute of replevin gives the like remedy by distress damage feasant, for a trespass, the remedy must be deemed co-extensive, as to the nature and amount of the lamage to be recovered St 1788> 65> § 3- Another objection was, that damage was awarded by the appraisers beyond the amount, of which the distrainer, Bemis, had given the plaintiff notice. Had the plaintiff tendered the amount thus stated and the expenses, Bemis would have been bound by it, and must have surrendered the horse.

But as he did not tender this, or any other sum, and Bemis was obliged to have an appraisement, he was not limited to the damage claimed in his notice. There is very little analogy between this and the ad damnum in a writ. It is more like an offer or demand in pais, which, if not acceded to, the party is not bound by, in ulterior legal proceedings.

It was also insisted, that Bemis himself, in his notice to Lyman, stated that he had taken up the horse as an estray, and was, therefore, required by the statute to adopt another and a different course, and, consequently, that his proceeding was irregular and erroneous, and the sale to the defendant void. An estray technically and as understood in the statute, is an animal of which the owner is unknown.

In this case, Bemis addressed a note to Lyman, saying, “ I have taken up as an estray doing damage in my enclosure, a grey stud-horse belonging to you.’’ This shows clearly that he did not use the word “ estray ” technically, but did in fact know the owner of the horse, and professed to have taken him damage feasant.

But perhaps the most material point in the present case is this, whether the party distraining, Bemis, could take up and impound the plaintiff’s horse, without showing that his own close was secured by a legal and sufficient fence, and under this head showing also, that his fence was up and his gate closed, at the time the horse broke into his enclosure. The provision of St. 1788, c. 65, § 3, is, that any person injured &c. in his lands enclosed with a legal and sufficient fence, may have an action of trespass against the owner, or may impound the cattle or horses, &c.

The words here used, “ enclosed with a legal and sufficient fence,” applying, as they do, to a great variety of cases and circumstances, must be taken distributively, and must be understood to mean, so enclosed, when by law a fence is necessary.

But it has been often decided, that an owner is not bound to fence against a highway, against cattle or other animals unlawfully going at large in the highway, and therefore, without having any sufficient fence against the-highway, if animals going at large unlawfully break into his close, he may have his remedy by distress ; and the same rule applies to trespass quare clausum. Melody v. Reab, 4 Mass. R. 471; Rust v. Low, 6 Mass. R. 90; Stackpole v. Healy, 16 Mass. R. 33.

By the statute which was in force when this transaction took place, St. 1788, c. 44, horses were prohibited from going at large in the highways, except under certain restrictions ; and by the second section, every ungelded horse, of which the horse in question was one, was absolutely prohibited from going at large, under a penalty. We think, therefore,' that whether Bemis had a sufficient fence against the highway or not, he had a right to distrain the horse, found damage feasant in his close ; and whether his gate was closed or not, was not a fact material to his right to distrain.

Verdict set aside, and new trial granted