Strauser v. Kosier

The opinion of the court was delivered, May 27th 1868, by Strong, J. This was an action of replevin for a hog, in which the pleas were non cepit and property. It was not disputed that the animal had belonged to the plaintiff, but the defendant claimed he had acquired the ownership in virtue of certain proceedings under the Act of 1705, entitled “An Act to prevent the running [498] of swine at large,” and its supplement of 1729. To maintain this defence he gave in evidence the record of a proceeding before F. B. Clouser, Esq., a justice of the peace, dated the 15th of October 1866, wherein it appeared that the justice adjudged the owner had forfeited half the value of the hog, and that the defendant had paid to the justice $7.50, half the appraised value. The whole controversy in this case relates to the sufficiency of this summary proceeding to divest the title of the plaintiff. The court below ruled the proceeding a nullity for want of jurisdiction in the magistrate at the time the adjudication was made. The justice’s record, as originally made, did not state that the “ hog was suffered to run at large,” which it was essential should appear according to the ruling in Commonwealth v. Fourteen Hogs, 10 S. & R. 894-5. There it was said “the fact of the informant being the owner (of the 1'and), and of the hog running at large, must appear on the justice’s record to give him jurisdiction.” As this did not appear on the record in that case, the proceeding was held to be coram non judiee and void, and examinable in an action at common law. The record in this case, however, did show that some five months after it was first made, and after this suit was brought, an amendment was made by which the words “ suffered to run at large” and “ running at large,” were introduced, by which the defect was cured. But the court ruled that this mode of perfecting records, and attempting to validate titles to personal property after suit brought for the wrong committed, the law will not permit. The jury was therefore instructed that the proceeding was absolutely void, notwithstanding the amendment, and that the plaintiff was entitled to recover. Herein it is said there was error. The argument in this court has been addressed principally to the question whether the record of the magistrate must not be taken as it now appears, and whether the amendment made under the circumstances detailed, is without effect upon the present z-ights of the parties. It is unnecessary to decide the questioiz, for if the record had been at first as it is now, since the amendment, it would have been fatally defective, and insufficient to show a divestiture of the ownership of the plaintiff in the hog. The Act of 1705 is very much out of the course of the common law. It is highly penal in certain cases, and by a defined process owners of swine may lose their ownership, and others may acquire the ownership. But this can only be in the cases described in the statute, and in the manner provided. As the owner may lose his property without notice, as a forfeiture may be adjudged against him without any proof by disinterested witnesses and without his knowledge, it is incumbent upon one who claims that he has acquired the property to show that the statutory forms of proceeding have been strictly pursued. A magistrate has no authority [499] to adjudge a forfeiture unless everything required by the Act of Assembly to give him such authority appears. A comparison of the act with the magistrate’s record, in this case, will show that an essential pre-requisite to a forfeiture was wanting. The provisions of the act are, that if any person or persons shall find on his, her or their lands, any swine, hog, &c., without rings and yokes, it shall 'be lawful for him, her or them to kill and take and drive and carry thorn away, “ and being so taken and carried away, the said takors shall forthwith acquaint a justice of the peace thereof, and being by him legally attested, that the said swine were taken as aforesaid, without yokes or bows and ring; the said justice shall immediately appoint and order two indifferent persons of the neighborhood to view and make a just and reasonable appraisement of all such swine, hogs, shoats or pigs, and to make return of their value, number and marks unto the said justice of the peace, as soon as conveniently it may be done after such appraisement, one moiety or half the value whereof shall be forfeit to the person or persons, owners or possessors of such lands where found and taken, and he or they that shall take up such swine as aforesaid, shall pay unto the said justice of the' peace, for the use of the owner or owners of such swine, the other moiety or half part thereof; and, thereupon, the property of all such swine shall be and remain in the said owner or possessor of land, as aforesaid, to his and their own proper use and behoof for ever.” Under this act there can be no forfeiture of swine taken up when suffered to run at large, and no acquisition of ownership by the person taking them, unless he forthwith acquaint a justice, and unless he is legally attested by the justice that the said swine were taken up, as aforesaid without yokes or bows and ring. It is only when these things have been done that the justice is authorized to appoint appraisers. These things are essential to a forfeiture of half of the appraised value. It is after all this, and after the person taking the swine has paid to the magistrate half the value, that the forfeiture is complete. Thereupon, says the act, the property of all such swine shall be and remain in the owner or possessor of the land. In this ease the record of the summary proceeding is defective in this, that it does not appear the defendant who took up the hog and made the information was legally attested by the justice that the hog was taken up running at large, without yoke or ring and bow. This essential to any action by the justice and to any forfeiture is totally wanting, and without it the proceeding was inoperative to affect the title of the plaintiff to the hog for which the replevin was brought. The direction to the jury to return a verdict for the plaintiff, notwithstanding the record of the summary proceeding, was therefore correct. Judgment affirmed.