The Town of Hamden v. Rice.

doctrine is laid down by the Master of the Rolls in James & wife v. Allen, al. 3 Mer. R., 16-so in Com. Dig., under tit. "charitable uses," no. 1. bridges, ports, havens, causeways, churches, sea banks, and highways, are classed, and grants for them are permitted as public charities. The same classification exists in 2 Sto. Eq., p. 390, § 1138-p. 411, § 1161. In Cogshall v. New Rochelle, 7 John. Ch., Chancellor Kent decided, that a legacy for the purpose of erecting a town house for transacting town business, was a charitable bequest.

In several of the states, the statute of Elizabeth has been recognized in their courts as the law of public charities, as may be learned from the appendix in 4 Wheat., and from the case of Vidal & al. v. Girard's Executors, 3 How., 150. Upon the most careful examination and reflection, we cannot entertain a doubt, whether we look at the principle of the cases, or the settled law in England, or the decisions in this country, that the use in question is one of a public and charitable character, which our statute allows to be continued in perpetuity.

It is further said, that the statute law of 1840, p. 150, does not extend to an estate, held by such a `title as the one in question, and therefore the tenant for life is not liable for waste to the remainder man. It is certain, that Mrs. Brooks, under whom the defendant defends, has a clear life estate in the premises and nothing more, and if this were all, the defendant has a perfect defence to the action. But this estate of hers is created by the act of the parties, and is not an estate created by the act of law, as an estate by curtesy, or dower; and therefore it becomes necessary for the defendant to show that Mrs. Brooks is authorized by the devise, under which she has her estate, to do these acts which otherwise would be waste by the statute. But this is not attempted to be done, and the only defence made is, the devise is not a contract, under which she holds her interest; so that a will, which we know, is the most usual mode of creating a life

The Town of Hamden v. Rice.

estate, is just the very mode that is not reached by this statute of 1840. This would be strange indeed and, we should exceedingly regret to be compelled to give our sanction to this construction of the law. Besides it is an elementary principle that estates accrue to the owner, by act of the law, or by purchase, and as this estate did not accrue by the former, it did by the latter. We think if Mrs. Brooks does not hold, as a purchaser, she does not hold at all, and if by operation of law, then certainly she cannot commit waste.

It is again said, that the case made for the advice of this court, does not show that any injury has been done to the freehold, or the remainder which is vested in the plaintiffs. On this point, it is certain that the facts are not as fully presented as they might and should have been, but the object of appealing to this court is for a totally different purpose, or the case would never have been brought here; for if it be true that the interest in the remainder is not injured, the plaintiff can have no action at all, and why, then, is this point of law raised for the advice of the court? It appears that the defendant has purchased, and cut, and removed from the land, divers forest trees thereon growing, of the value of $253.50. This constitutes an injury to the remainder, and is enough to sustain the allegation of waste and injury to the land. As however, it is possible that the attention of the court was not called to an apportionment of the injury between the two interests in the estate, the life estate, and the remainder, we shall advise the superior court to re-examine this point, and allow the plaintiffs to recover, only to the extent of the injury to their specific interest.

We therefore advise the superior court to render judgment for the plaintiffs.

In this opinion, the other judges, STORRS, & HINMAN, concurred.

Judgment for the Plaintiffs.

Hall v. Hall.

HALL VS. HALL.

A writ of replevin cannot be sustained against the impounder, to obtain the restoration of animals, lawfully impounded, under the act relating to the restraining of swine, (Rev. Stat. Tit. 3, Ch. 7, § 97,) but which, without his knowledge, the pound-keeper, after a tender of the poundage fees, unlawfully detains.

The pound-keeper, in such case, is not the agent of the impounder.

THIS was an action of replevin, brought originally before a justice of the peace, for taking, and impounding nine pigs.

The cause having been appealed to the county court, for the county of New Haven, at the term of said court holden in December, 1854, the defendant avowed the taking as follows:

"And the defendant comes into court, and well avows the taking of said swine, in said declaration mentioned, and justly, because he says that the place in which, &c., was a public highway in said town of Wallingford; and because said swine were going at large in said public highway, by the sufferance and permission of the said Henry F. Hall, plaintiff, he, the defendant, well avows the taking of said swine, and justly," &c.

The plaintiff replied, "that after the taking of said swine, and after the impounding the same,to wit, on the same day and year in the said declaration mentioned, he, the plaintiff then offered and tendered to the keeper of the pound, in which such swine were impounded, the sum of one dollar and eight cents, being the sum of twelve cents for each and every swine, so impounded as aforesaid, and so unjustly detained as in said declaration as aforesaid, as poundage for the same, and which was then and there sufficient poundage for the same, and the said keeper of said pound then and there wholly refused to accept said sum from said plaintiff, and unjustly detained the said swine in manner and form as the plaintiff hath above thereof complained against said defendant, and this the said plaintiff is ready to verify. Wherefore,

Hall v. Hall.

inasmuch as the said defendant hath above acknowledged the taking of the said swine in the said place in which &c., he, the said plaintiff, prays judgment, and his damages by reason," &c.

To the plaintiffs' replication, the defendant rejoined "that the refusal of said pound-keeper to accept said sufficient sum for poundage, so tendered to him by the plaintiff, and said wrongful detention of said swine, by said pound-keeper, after the tender of said sum, was without the knowledge or consent of the defendant.

To this rejoinder, the plaintiff demurred generally. The county court sustained the demurrer, and rendered judgment in favor of the plaintiff.

The defendant, by motion in error, then brought the case before the superior court, where the judgment of the county court was reversed, and thereupon, by motion in error, the cause came before this court.

Doolittle, in support of the motion.

1. When the owner has tendered all that can be lawfully demanded of him, he is, of right, entitled to the possession of animals detained in pound. He is not to resort to trespass, or trover, because the statute has given a complete. remedy, which is replevin, by which he regains possession of his animals, when unlawfully withheld from him in pound. It is the unjust detention, of which the plaintiff complains, and which is the gist of the action. He cares not whether the taking was tortious, or not. He has tendered his amends, and it is the unjust detention, after tender, that he complains of. The possession is wrongfully withheld from him, and for this wrong our statute furnishes a remedy. But, by the English law, replevin was always maintained in cases of distress, where the original caption was lawful, if there was an illegal detention, the only exception to the general rule. Fitzherbert Natura Brevium, 69. Baron Gilbert, on replevin, says this is the only instance where replevin lies, when the

Hall v. Hall.

original taking was not tortious. Hammond, in his Nisi Prius says (p. 334,) the same thing, and assigns the same reason viz: replevin is the proper action to try all questions arising out of a distress. Six carpenters' case, 8 Coke, 146. Pilkington v. Hastings, 5 Coke, 76. Sel. N. P., 1194. That replevin lies for a wrongful detention merely, has been decided in the following cases. 1 Dall., 157. 2 Binn., 2. 16 S. & R., 300. 15 Mass., 359-362. 5 Mass., 284. 4 Green., 306. 2 Fairfield, 28, 31. E. C. L. R. 302.

2. If these claims are unfounded, then the defendant is a trespasser, ab initio. The pound keeper, an officer of the law,retaining the legal custody of those animals, acted as the agent of the defendant. We are not obliged to tender fees to the defendant, but to the agent whom he has selected, and entitled to receive the money in his behalf. Stat. 184, 11 Green. Ev., 557. Browne v. Powell, 4 Bing., 230. 5 T. R., 246. Replevin does not lie against the officer attaching property against the express commands of the plaintiff, but against the plaintiff, so in this case it lies only against the party impounding. 18 Conn. R., 550. 20 Conn. R., 343. The party, having, by his agent entitled to receive fees, refused lawful fees, is a trespasser, ab initio.

If the defendant had impounded these animals in an adjoining town, he would then be a trespasser ab initio, although the original caption was lawful. Replevin lies only against the impounder. 5 Cush. R., 263.

Wright, contra, contended that the defendant was neither. guilty of a tortious taking, nor of an unlawful detention of the swine impounded.

1. At common law, in this state, no action of replevin could be maintained. The action of replevin is, by statute given, subject to all the incidents and principles that govern this action at common law, except so far as the statute has altered the mode of procedure. Ladd v. Prentice, 14 Conn. R., 109. Rev. Stat. 140, § 253 to § 259.