Pickard v. Howe

Dewey, J. It is no sufficient objection to the validity of a notice left by a field driver with the owner of the cattle, that it does not particularly set forth the hour of the day when the cattle were taken up. Such notice must, in point of fact, have been given within twenty four hours after the cattle were taken up and impounded; and this fact must be shown by competent evidence. This being established, the notice is valid, although the hour of the day on which they were thus taken up does not appear on the face of the notice itself. In [206] the present case, the notice, as was shown by other evidence, was left at the house of the plaintiff, within the twenty four hours. It was sufficient that it was left at the dwelling-house of the party. The statute does not require a personal service upon the owner of the cattle ; and. the evidence was sufficient to authorize the jury to find that the notice was left at the plaintiff’s place of abode. The next inquiry is, whether it be necessary for the field driver to leave a written notice with the pound keeper, when cattle are taken up and impounded for going at large upon the public highway. No such notice having been left with the pound keeper in the present case, this question becomes a material one, and requires a direct decision of that point. The question is the more embarrassing, from the circumstance of there having been conflicting opinions held by this court upon the point. In Bruce v. Holden, 21 Pick. 187, it was held that it was the duty of the field driver in such cases to file with the pound keeper a Written memorandum of the cause of impounding, and of his fees and expenses. The question, however, arose in that case incidentally, and in reference to the effect to be given to such certificate, it being contended that it was an official act and to have effect as such; and the court so held. This case was decided at the sittings in Middlesex, in October 1838. At the October term 1839, in Norfolk, this question again arose, in the case of Wild v. Skinner, 23 Pick. 251. In the discussion of this latter case, no reference was made to the case of Bruce v. Holden, and the point was treated, both by the court and the bar, as an open one. This case presented the question of the necessity of such notice directly, the plaintiff contending that the detention of the cattle was illegal, because the field driver had not left with the pound keeper a memorandum stating the cause of impounding, and the damages demanded, according to the provisions of Rev. Sts. c. 113, <§> 6. In reference to this objection, it was held by the court that the duty of the field driver did not require such proceedings on his part, and that, when cattle are thus impounded, all that he has a right to [207] demand is his fees, which are regulated by statute, and known to the pound keeper; and as to other damages he has no claim for any. This opinion is directly in opposition to that previously given in the case of Bruce v. Holden. We have found it necessary to reconsider the point; and the result has been, upon further consideration of the proper construction to be given to the Rev. Sts. c. 113, $ 6, the court are of opinion that this section is not applicable to field drivers who have taken up and impounded cattle going at large in the highway without a keeper; thus adopting and confirming the decision in the case of Wild v. Skinner, and for the reasons stated in the opinion pronounced by the court in that case. It is no sufficient objection to the legality of the notice to the owner, that the field driver also posted up- notices in Rowley and two adjacent towns, in which notices the cattle impounded were described as belonging to some person unknown. The field driver might, for the greater certainty of giving the proper notice, adopt both methods of notification ; and might legally show both at the trial. It is enough that proper notice was given to the plaintiff as the known owner of the cattle. It is also sufficient that the special notice to the owner was written at the request and under the direction of the field driver, and in his presence, and by him taken and delivered to the plaintiff, or left at his dwelling-house with his servant. Nor would it constitute any sufficient ground for maintaining the present action, for the plaintiff to show that the cattle were not suitably provided for by the pound keeper, or were ill treated by him. This action is against the field driver, and not the pound keeper. The Rev. Sts. c. 113, § 1, require of the pound keeper, in such cases, the making of all necessary provision for the sustenance of the beasts impounded. The instruction to the jury was correct, that the notice to the plaintiff, given by the field driver, stating that the cattle had been taken up, being at large in the highway, was prima fade evidence that the cattle were thus at large on the highway, and changed the burden of proof, on that point, upon [208] the plaintiff, if he alleged the contrary. This notice, being that required by c. 113, § 8, was an official notice, and one required to be given as well when cattle are taken up on the highway by a field driver, as when they are distrained for doing damage. The point of controversy in the cases of Bruce v. Holden and Wild v. Skinner arose upon the construction of <§> 6; both cases assuming that the notice required by <§> 8 must be given in all cases of impounding in the town pound. This, being an official certificate, is to be taken to be correct, until the contrary is shown. No objection arises as to the place where the cattle were taken up; a turnpike road being a highway within the meaning of the statute restraining cattle from going at large. Gilmore v. Holt, 4 Pick. 258. And they were lawfully taken up on Sunday. Wild v. Skinner, 23 Pick. 251. Exceptions overruled.