53 Mass. 198 | Mass. | 1846
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
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
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
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.