It will scarcely be pretended that an action for a trespass done by the beasts of another would be answered by an allegation that they had been turned loose by one who had stolen them; and why should it be a defence to a proceeding against the beasts themselves. Our law which directs the proceedings in the case of *483a stray seems to be a statutory regulation of the common law remedy by distress of cattle damage-feasant; and though the injured party must choose betwixt the summary remedy and an action, whatever is a title to redress by the one is a title to redress by the other. The proceeding against a stray is in rem, and not against the title of any particular owner. Its object is not to inflict a penalty for letting the animal go at large, but to compensate the injury done by it, and secure the residue of the value to the owner of it. What matters it, then, that the animal was taken out of his possession without his default, when default is not the foundation of the proceeding ? It is, in some respects, a charitable one; for had not the animal been secured and taken care of, it might have perished or wandered away beyond the reach of recovery. The costs and charges must be paid in any event, for the officers are not to be affected by considerations of theft; and how can these be raised except by a sale, or how can there be a sale if purchasers cannot bid securely? Though by the common law the property in a thing stolen can be changed only in market overt, yet there was a statutory sale in this instance, which must be allowed to have the same effect. The sufficiency of the proof on the point of notice was for the jury; and as there was something to be submitted, the direction prayed in respect of it was projperly withheld.
Judgment affirmed.