¶2The right to distrain beasts damage feasant does not depend on the place where the inju* ry is committed, nor the particular kind of trespass for which the distress is made. The swine were in the defendant’s barn, eating up his grain and doing damage, and he had a right to take and detain them until the damages were paid. .
¶3It was the duty of the defendant to cause the damages to be appraised by the fence-viewers of the town, within 24 hours after making the distress. 2 R. S. 517, § 1. By neglecting to do so, he forfeited his right to detain the swine for the damages, and the plaintiff might have retaken his property; or, if the defendant refused to deliver it on demand, he might have had an action of trover. It may be that replevin would also lie for the wrongful detention. 2 R. S. 522, § 1, 6, 36. But the plaintiff has declared for the taking of the swine ; and this presents the question whether the neglect of the defendant to have the damages appraised within the time prescribed by the statute, made him a trespasser ab initio. If the defendant had put the swine in the public pound before having the damages appraised, or had killed the distress, or done any other unlawful act in relation to it, this would have been such an abuse of an authority given to him by the law as would have made him a trespasser from the beginning ; and replevin for an unlawful taking might have been maintained. The Six Carpenters’ case, 8 Co. 290. Sackrider v. McDonald, 10 Johns. R. 253. Hopkins v. Hopkins, id. 369. Com. Dig. Distress, (D. 6, 7.) But here there was no wrongful act. The neglect to have the damages appraised was a mere nonfeasance, which could not make the original taking tortious. It was adjudged in The Six Carpenters' case, that “ not doing cannot make the party who has authority or license by the law, a trespasser ab initio, because not doing is no trespass.” The plaintiff has mistaken his remedy,
¶4Judgment affirmed.