The question is, whether the facts proved in the trial of this action, amount in law to a rescue, or only to an attempt which was defeated.
The defendant succeeded in getting the sheep by force from the highway, where the plaintiff was driving them to pound, into an inclosure, where they were shut up and kept by force. If this does not amount to a rescue, nothing short of an actual abduction, so that the cattle cannot be retaken, will be sufficient to constitute one.
To constitute a rescue, there must be, first, an actual possession in the party from whom they are taken (1). The facts in this case *278show that the sheep were actually in the custody of the plaintiff, and that he was driving them to pound. Secondly, there must be a talcing away and setting at liberty. The case shows that they were actually taken from the possession of the plaintiff and his assistants, and driven out of the highway.
It has been urged in the argument, that as the plaintiff pursued the sheep, and did not lose sight of them, but contended with the defendant until he yielded them, there was only an attempt to rescue. But the rescue was complete when the defendant forcibly drove them out of the highway; and what followed was only a recaption, which did not purge the rescue, f * 345 ] *By the statute of 1788, c. 65, rescue is made to consist in taking the cattle out of the hands of the person driving them to pound, so as to endanger the losing of the remedy provided by that statute.
The statute of 1817, c. 143, was not intended to repeal the former statute, as the counsel for the defendant have argued, but merely to alter the penalty. It, however, describes a rescue as an act, whereby the field-driver, or other person, shall be prevented from impounding the cattle. As it is evident it was not intended to introduce any new principle in this statute, which was made only to affect the penalty, it is proper to give it a construction which will make it comport with the former statute of 1788.
The prevention intended is not an absolute and final obstruction, but any forcible interruption by rescue which may occasion a prevention at the time. The case at bar shows such a prevention, and the impounding afterwards does not purge the offence.
New trial ordered.
Bac. Air. Rescue, A., and the authorities there cited.