Mosher v. Jewett

Yirq-in, J. When a caséis tried by the justice of the superior court “without the intervention of a jury, subject to exceptions in matters of law,” his findings in matters of fact, are conclusive pro hac vice — so far as they become material to a consideration of the exceptions — and they cannot be revised by this court. But they are not finally conclusive until by a judgment they have become res adjudícala. With the exception of their not being subject to revision on motion, they perform the office of verdicts special or general; and when exceptions in matters of law are sustained in such cases, the effect is to give a new trial both as to the facts and the law, the same as if the facts had been submitted to and found by a jury. In the case at bar the finding as to the title of the property replevied is the same in the latter as it was in the former trial. And the other material facts were substantially the same in both trials, with the exception that in the latter trial was found the additional [88] fact — that during the year 1870, there was neither • pound nor pound keeper in the town of Gorham. Prior to the enactment of our statutes relating to the impounding of cattle, the common law permitted a land owner “to be his own avenger, or to minister redress to himself ” by “distraining another’s cattle damage feasant.” Otherwise it might “be impossible, at a future time to ascertain whose cattle they were that committed the trespass.” And when cattle were distrained for that cause, it became the duty of the distrainer to put them into some enclosure denominated a pound, which might be a common, or a special pound — overt or covert — and there keep them. If in a special pound-covert, as in the impounder’s own barn, he was bound to properly feed and care for them. When thus impounded they were kept in the nature of a pledge until satisfaction were made ; unless the owner (rejplegiavii) took back the pledge by a replevin writ. Thus the distress was the common law security. 3 Black. Com., 6 — 13. What effect did the statute have upon the common law right and method of impounding cattle damage feasant % Did it abrogate it altogether ? Gooch v. Stevenson, 13 Maine, 371, and Cutts v. Hussey, 15 Maine, 237, do not pretend to declare that. Statutes are not to be construed as taking away a common law right unless such intention is manifest. Melody v. Reab, 4 Mass., 472. And where a remedy existed at common law and the statute creates a new remedy in the affirmative, without a negative express or implied, a party may still seek his remedy at common law. Coffin v. Field, 7 Cush., 358, and cases there cited. Particular remedies are to be followed in the particular cases contemplated by the law created for them, but in other cases the general law furnishes the remedy. Boynton v. M. M. F. Ins. Co., 4 Metc., 216 ; Salem Tur. & Chel. Br. Co. v. Hayes, 5 Cush., 458. Now R. S., c. 23, § 1, requires towns, under a penalty, to keep and maintain pounds for the reaction of beasts liable to be impounded ; and § 5 requires towns “annually to choose pound keepers.” [89] Section 4 authorizes any person injured in his land by cattle to recover his damages by distraining any beast doing it, or by an action of trespass against the owner or possessor unless such beast was lawfully on the adjoining lands, &c. By § 11, whoever takes up as an estray, in any public way or in his inclosure or possession, any such beast, shall within ten days, if no owner calls for him, “commit him to the pound keeper of his town, who shall carefully keep him till called for by the owner, and all due charges paid . . . ; and whoever does not so commit such beast, shall lose the expense of his keeping and forfeit one per cent, on his value,” &c. But in the cas"e at bar, there was neither pound nor pound keeper ; nor was the owner of the bull known. Even the owner himself was for several weeks “doubtful of its identity;” and at the trial the question of ownership was involved in grave doubt. If there had been a pound or pound keeper in town, the defendant could have followed the statute mode of impounding. If the owner had been known, the defendant might have resorted to his action of trespass. But neither of these statute remedies was open to him for the sole reason that neither of the facts contemplated by the statute existed. And neither was the defendant in any wise in fault or responsible for their non-existence. He was therefore without remedy unless we hold that the common law mode of impounding survived in cases not covered by the statute. Such is substantially the decision of numerous courts in analogous cases embraced within the same subject matter, as for instance the construction given to the proviso in § 4. Little v. Lathrop, 5 Maine, 360 ; Gooch v. Stevenson, 13 Maine, 371; Webber v. Closson, 35 Maine, 28; Thayer v. Arnold, 4 Metc., 591, and cases there cited. At common law, cattle could be impounded either in a common or a private pound, at the option of the impounder. The statutes of New Hampshire, Yermont and Massachusetts respectively require towns, under similar penalties, to erect and maintain pounds, but provide that creatures must be impounded in the public pound if there be any in the town, otherwise in the barn or inclosure of [90] the person taking them up. To be sure, there is no such express provision in the' statute of this State, but it should practically receive the same construction. Any other construction, as is seen in the case at bar, permits such a gross absurdity as to forbid our belief that it was ever intended. This view does not conflict with the decision of this court in this case as it was reported in 59 Maine, 153. There was no evidence in relation to the existence or non-existence of pound or pound keepers ; but in the absence of any evidencej the presumption was that the town had performed its statute duty, and the decision of the court was predicated upon the presumed existence of pound and pound keeper. If this view be correct, then the plaintiff was not aggrieved by the rulings in relation to the lien; and the result must be, Exceptions overruled. Appleton, O. J., Walton, Dickerson, Barrows and Danforth, JJ\, concurred.