Morse v. Reed

Wells J. This was an action of replevin, for cattle im [490] pounded. It was commenced originally before a justice of the peace. Non cepit was pleaded before the justice, and the action was removed, by appeal, to the District Court, in which a brief statement was filed, avowing the taking, in the enclosure of the defendant, damage feasant. A counter brief statement was made, denying, that the place, where the cattle were taken, was the enclosure of the defendant. The statement of the pleadings, in the District Court, we gather from the arguments of the counsel. Whether the permission was properly granted, to file the brief statement, from the view we have taken of the case, it is unnecessary to determine, and we give no opinion upon that part of it. The defendant justifies the taking, and must sustain that justification by the law. Pie must show a full and entire compliance, with the requisitions of the statute. If he does not do it, he becomes a trespasser ab initio. Smith v. Gates, 21 Pick. 55; Adams v. Adams, 13 Pick. 384. By c. 30, <§> 10, R. S., the impounder is required to furnish the pound keeper with a certificate, the purport of which is given in a form, contained in said section. The form indicates, that the certificate should state the name of the impounder, and the town in which he resides, the owner of the enclosure, and the town in which it is located. In the certificate, which was furnished, neither the town in which the defendant resided, nor the town in which the enclosure was situate, were mentioned. The certificate is dated at the bottom, at Cornville, and signed by the defendant. But that could indicate nothing more, than the place, where the certificate was made. It did not declare the residence of the impounder, nor the location of his enclosure. The Legislature must have deemed it essential, that the own- ' er of the cattle should be able to ascertain, from an inspection of the certificate, the residence of the impounder, and the location of the enclosure. The impounder, claims damages and charges, which he might remit or reduce upon a conference. [491] The owner of the cattle might desire to examine the enclosure, if in the town, in which they were impounded, and ascertain the damages actually sustained, and also to whom the enclosure belonged. If the enclosure was in a town, other than that, in which the impounding took place, the certificate would disclose that fact to the pound keeper, and guide him in 1ns duty, or if, in such a case, the impounding took place, the owner could ascertain, at once, the illegality of the proceeding. By <§> 12, the appraisers are to give notice to the person impounding, if known and resident in the same town. If it appeared by the certificate, that he did not reside in the same town, they would be under no obligation to make inquiry for him. But it is enough for us to ascertain, the existence of the enactments, without exploring the reasons of them. The requirements of the statute are very general, probably as much so, as was thought would comport with the interests of the community, and ought not to be made more so, by construction. But they are plain, and easily to be followed. By <§> 15, the pound keeper is required to state in the advertisements, the “ time and cause of impounding.” In the copy of the advertisements furnished to us, the time of the. taking up, by the defendant in his enclosure, is stated to be “ on the 16 th inst.” and the advertisement bears date, “August 17,1843.” The advertisements do not exhibit whether the impounding was on the sixteenth or seventeeth day. Probably it was on the day, when they were taken up, but it is not so stated as the statute requires. The defendant having failed, in our opinion, in establishing his justification, the exceptions must be sustained.