Hard v. Nearing

By the Court, Mason, J. The plaintiff’s cow was found trespassing upon the defendant’s premises, and the defendant seized and took her into his possession and custody, by virtue of the authority conferred by the act of April 23, 1862, (chap. 459,) which declares that it shall be lawful for any person to take into his custody and possession, any animal that may be found trespassing upon premises owned or occupied by him. (Laws of 1862, p. 844, § 2.) The cow was formally sold by the .commissioner of highways, in accordance with the directions of the said act, and this action is brought to recover the value of the cow. It is claimed that the act in question is unconstitutional, and therefore affords no protection to the defendant. The counsel for the plaintiff relies upon the 6th section of article 1 of the constitution of the state, which declares that [487] “no person shall be deprived of life, liberty or property, without due process of laxvwhich has been settled by judicial construction to mean, a trial according to the course of the common law. And section 2 of the same article secures a trial by jury in all cases in which it has been heretofore used. The counsel for the plaintiff claims and insists . that this act of the legislature allows the taking and seizing such animals and selling them, and divesting the title of the owner, without due process of law, and is consequently in plain conflict with the constitutional guaranty above referred to. I am satisfied, after the best examination and reflection which I have been able to bestow upon the matter, that this objection is not well taken. It is proper to observe, in this connection, that existing laws prior to the law in question, and prior to the constitution itself, authorized a party to seize and sell property, in quite as summary a manner as is provided in the present statute. I refer to the statute authorizing animals found trespassing upon the lands of another, to be distrained and sold to pay the damages and expenses, in a mode quite as arbitrary and summary as this. And the validity of that act was never questioned, although distress and sales under it had been made for a half century and more. It has been decided by the court of appeals that statutes of the same general character and based upon the same motives of policy, in cases similar to the present, may be passed without a violation of these constitutional provisions. (Sands, receiver, v. Kimbark, 27 N. Y. Rep. 147, 152.) It seems to me very clear that the act in question is in pari materia with the former statutes, allowing cattle taken damage feasant to be distrained and sold in a summary manner. That it was founded in the same motives of policy is very evident; and it was designed to give a similar remedy, and strictly in pari materia with those statutes. If I am right in the views above expressed, the statute iii question can not be held in conflict with the constitution, for the reason that such stat [488] utes were upheld under the former constitution, which had the same prohibitions as the present, and those statutes were in active operation when the present constitution was adopted. As I understand it, this right of distraining cattle damage feasant is recognized as a right and remedy given by the common law. (3 Black. Com. 6. 3 Bacon’s Abr. 187, title distress, letter F.) A distress is defined to be the taking of a personal chattel out of the possession of a wrongdoer, into the custody of the party injured, to procure satisfaction for the wrong committed. (3 Blk. Com. 6.) And it is said in the books, that this remedy appears to be of such remote antiquity that we have no memorial of its origin. (8 Petersdorf’s Abridgement 402, note *.) It can hardly be supposed that these constitutional restrictions were intended to abolish a remedy so long recognized in the law, and as the statute under consideration is in pari materia with the remedy by distress, it can not, I think, be doubted but it' must be sustained. [Become General Term, July 11, 1865. The defendant did not sell this cow. She was nominally and formally sold by the commissioner of highways, after she was stolen, and when the cow was not present; and I do not think that the defendant could render himself liable to an action, for bidding on the cow when she was not present, or under the control of the officer, but had been stolen and taken away. It seems from the evidence in the case, that this cow was stolen from the defendant’s barn in the -night time, without any fault or neglect on his part; and as he had her lawfully in his possession, he is not liable in this action. (13 John. 211. 3 Barb. 380. 5 Hill, 588. 23 Wend. 496. 6 John. 12. 7 id. 361. 6 Cowen, 294.) I am inclined to think that the defendant made out a perfect justification and defense, and that the judgment of the county court should be affirmed. Judgment accordingly. Parker, Mason Baleom, Justices.]