¶1The opinion of the Court was drawn up by
¶2By the stat, of 1834, c. 137, concerning pounds, beasts impounded and stray beasts, strays, beasts going at large, without a keeper, in the highways or commons of the town, or doing damage on improved lands, enclosed with a sufficient fence, may be impounded. If these proceedings can be sustained, it must be upon the latter ground. It is a civil remedy, to recover damage sustained, to which the party injured may resort, or to an action at his election, as is provided by the third section of that statute.
¶3*180All the proceedings are remedial, for the purpose of giving an indemnity for the injury. When beasts are thus impounded, they are to be restrained, until the damages, and the charges for impounding and keeping them, and all fees are paid. The expenses are incident to the remedy, which is based upon the damages sustained. Here no damage is claimed. The very ground which justifies and upholds the remedy, is waived and abandoned. The libel does not even aver, that any damage was done. We are very clear, that as the case is presented, the libel is not sustained by the statute.
¶4Exceptions overruled.