delivered the opinion of the Court. The St. 1799, c. 61, provides that the inhabitants of any town in this commonwealth may order and direct that neat cattle &c. shall not go at large, without a keeper, under a penalty, to be recovered by any inhabitant, by impounding the beast and *386proceeding according to the provision in cases of cattle found damage-feasant.
The St. 1788, c. 65, declaring the causes for which cattle may be impounded and the manner how they shall be proceeded with &c., provides (§ 3,) that any person injured in his tillage &c., may have trespass quare clausum fregit, or may impound the creatures doing the damage, or some of them, at his election, with or without the aid of a field-driver, and in case he impound the creatures “ he may restrain them in one of the town pounds, or in some other place under his immediate care and inspection, as may be most convenient for relieving them with suitable meat and water, which relief it shall be the duty of the person impounding to furnish, or cause to be sufficiently furnished, during their confinement.” The first question in the case before us, is upon the sufficiency of the plaintiff’s second plea ; to which there is a general demurrer and joinder. And we are of opinion that it is bad, because it does not state that the defendant had any place near where the cattle were taken, in which he might conveniently have restrained them, and that fact cannot be presumed. And for another reason, that we think the party impounding, according to the intent and meaning of the statute before cited, has an election to impound the cattle in the town pound, or elsewhere, even if he has some place near, in which he could restrain them.
The plaintiff pleads thirdly, that the defendant drove the cattle, which were milch cows, three miles to a public pound, after he took them, and detained them from about 7 o’clock in the morning until 5 o’clock in the afternoon, and did not, during that time, relieve them with any meat and water, whereby they were greatly injured &c. ; and to this plea there is a general demurrer and joinder.
Now it was the duty of the party impounding to furnish suitable food for the creatures ; and we are all satisfied that it was not done in the case before us. The party impounding should, as nearly as might be reasonably done, keep ana feed the cattle and give water to them as often as was required according to the usage of the country and of good husbandry. We believe it would be unparalleled and gross *387neglect m a farmer to take his milch cows in the morning early and shut them up in a yard without water or food until 5 o’clock in' the afternoon in summer. If the cattle had been soiled, or if it had been the custom to keep them in the stable, we do not think it would have been suitable to suffer them to stand so long without relief.
It is objected to this plea, that it is bad because the plaintiff has disclosed and set forth the evidence and not the legal result of it; and that there is no averment that the cattle needed relief.
We think these objections are not sufficient to avoid the plea. There are material facts set forth, which the defendant might have traversed. He might have denied that he kept the creatures as long as the plaintiff had said that he did, without food, if the truth would have warranted it; and he might have said that the creatures were not injured by such abstinence. Those issues might have been for the jury. But the defendant now admits that he kept the creatures without food or water, as the plaintiff alleges, and for the time that he alleges ; and he admits that the cattle were injured as alleged. The plea substantially sets forth, that the creatures were not suitably relieved by the defendant after he impounded them, and the statement of the length of time they were restrained without food, under the circumstances, and of the consequential injury, is a sufficient averment that they needed relief.
The result is, that this plea is good and the defendant must be considered as a trespasser ab initio. For the law is perfectly clear, that where an authority given by the law is abused, the party is to be considered as a trespasser from the beginning; as if the party distraining should work or kill the creatures distrained &c.
The judgment of the Court is, that the third plea to the avowry is good, and that the plaintiff recover his damages for the detention, to be assessed by the jury unless the paries shall agree upon the amount, and his costs of suit