¶1The defendant distrained and impounded the cattle of the plaintiff for both the causes provided for in the Gen. Sts. c. 25; for going at large in the highway without a keeper, and for doing damage on private lands These are distinct causes of impounding, and cattle cannot be distrained for both at the same time. They cannot be at the same time going at large in the highway and doing damage on private lands. In the one case, they can be impounded by the field-driver only, and for the purpose of restraining them from going at large, and they can be held only for the legal fees and expenses incident to their restraint. In the other case, they are distrained for doing damage to an individual in his land, and can be impounded only by the person injured, and held until the damages to him, and the incidental expenses of collecting them, are paid. In the one case, the cattle can be held only for the fees of the field-driver impounding, and the fees and expenses of the pound-keeper, and not for damages; in the other, only for the damages to the landowner and his expenses, and in some cases the fees of the pound-keeper, and not for the fees of the person impounding. In the case at bar, the cattle were distrained and impounded for both causes, and were held until both the fees of the field-driver, and the damages claimed by the landowner, were paid. This was not a lawful impounding, and the defendant cannot justify under it. Sanderson v. Lawrence, 2 Gray, 178. Again, the statute requires that the person impounding shall give a notice to the owner of the cattle, which shall state, among other things, the cause of the impounding. One cause of the impounding in this case was damage done by the cattle to land of Mrs. Humphrey, and they were held in pound until the damages claimed were paid. If the impounding was lawful, the defendant can justify only by showing that he gave notice of this cause of it to the plaintiff. But the notice which he gave was clearly no notice that the cause of the impounding was damage done to Mrs. Humphrey in her land.
¶2Exceptions overruled.