Riker v. Hooper

| Vt. | Nov 15, 1862

Aldis, J.

This is a suit to recover a forfeiture, and therefore the rule of evidence in criminal eases applies, that all the facts material to sustain the suit must be proved beyond a reasonable doubt. One material fact is that the plaintiff gave notice to the defendant of the place where the defendant’s horse was impounded, Comp. Stat. chap. 92 sec.. 3. Without such notice the impounding and the detention of the horse were illegal, and the forfeiture and expense of keeping can not be recovered. ■ To prove this notice, the plaintiff showed that the defendant had sued him in trover for the detention of the horse in the pound ; that on the trial of that case the present defendant contended that the impounding was illegal upon the ground that the notice did not state where the horse was impounded ; that the judgment was for the present plaintiff — and the plaintiff offered the record of that judgment, in connection with proof of the above facts, to show that his proceedings in impounding the horse, and in giving the notice where he was impounded, were legal. To this the defendant objected, but the evidence was admitted. The defen dant then offered to show that the plaintiff did not give him any notice of where the horse was impounded. This was objected to by the plaintiff, on the ground that the judgment in trover had conclusively settled the question of the legality of the notice, and that the parol evidence on the part of the defendant was not admissible to show that the notice was not legal. The court held the record conclusive, and excluded the parole evidence.

The objection to this ruling is not that the very point was not there litigated between the same parties, but that, that action being a civil suit, the jury might have found the fact upon the mere preponderance of evidence, and that they might not have so found if they had been required to have been satisfied of it beyond a reasonable doubt, and therefore that their verdict, resting upon such inferior amount of evidence, ought not to be held conclusive or admissible in this penal action.

We think the objection stands on solid grounds. All who are conversant with courts must have observed that juries will render verdiets in civil cases upon light evidence — the mere balance of probabilities — when in criminal cases nothing would induce them to so decide. The law justifies them in so doing. The distinction is an important one, and leads to widely different results. To admit the judgment in trover as conclusive here, might operate to deprive the defendant of the right to have the rule of full proof in criminal cases applied to his case. But we do not think it admissible even as prima facie evidence of the legality of the notice. For to hold this would be to require the defendant to establish by proof on his ' own side that the notice •was not legal, before the fact had been established on the other side by the requisite legal proof, viz: proof beyond a reasonable doubt; see 1 Greenleaf on Ev. section 537, and cases cited.

II. The statute provides that if there is no pound in a town, any person in such town may impound “ in his own barn or in some other enclosure,” notifying the owner where his beast is impounded. The defendant contends that the impounder must impound “ in his own barn or in some other enclosure ” of his own, and that the impounding in Moses Hatch’s barn was illegal.

This is untenable. The language of the act does not require, but rather excludes the construction. The person wishing to impound might have no other enclosure of his own than the field in which the beast was taken damage feasant.

III. Moses Hatch was pound-keeper, and the plaintiff testified he impounded the horse with him because he was pound-keeper ; that Hatch had kept the horse, and that the plaintiff had never paid or agreed to pay anything for keeping. He here sues for the expense of keeping, and for the forfeiture incurred by the owner for not replevying or redeeming.

The defendant insisted that he had the right to go to the jury ■upon the question whether the plaintiff impounded the horse with Hatch as pound-keeper, and in his official character ; and claimed that the plaintiff could not sustain the action, which was given by statute to “ the pound-keeper.” The court held that though the plaintiff did impound with Hatch “ as pound-keeper,” still the plaintiff could recover, and directed a verdict for the plaintiff. This must have been upon the basis, that where there is no public pound, the pound-keeper of the private pound is not strictly pound-keeper, but merely agent of the impounder, and he the pound-keeper.

If the. impounder had acted himself as pound-keeper, by impounding the beast in his own barn, or if he had procured some other enclosure, and had employed some other person as his servant or agent to keep and feed the beast for him, then he would have been pound-keeper pro hac vice, and entitled to ’ recover the expense of the keeping which he had thus incurred or become liable for, and the forfeiture which the law gives as compensation to him who is obliged to keep the animal an unreasonable time. But it appears in this case, that the plaintiff impounded the horse with Hatch (the public pound-keeper elected by the town) because he was pound-keeper, and in • his official capacity, and that the plaintiff had never agreed to pay, and never had paid anything for costs or keeping. Without saying that Hatch was bound to receive the horse as pound-keeper, when there was no public pound, yet if he waived that question and did consent to receive and keep him as pound-keeper, we think he must stand upon his rights, and be bound by his duties as pound-keeper, the same as if he had impounded the beast in a public pound. He would not be the servant or agent of the impounder. The impounder would have no greater rights than if he had impounded in the public pound. The owner of the beast would be justified in dealing with the pound-keeper as acting in his official capacity.

Our statutes have altered the common law as to pounds and impounding, in several important particulars.

Ateommoulaw, animals impounded in the common pound were to be fed by their owners, and hence the common pound was always a pound overt, having a back wall and yard where the owner might go and feed them without offence. So its oversight was committed to the steward of the-leet, “ who,” it was said, “ should he a barrister of learning and ability.” No notice need be given to the owner of the impounding of his beasts in the common pound.

But, by our statute, the pound-keeper elected by the town at March meeting has charge of the pound, is bound to receive animals and keep them, and supply them with food and drink, and the owner»is entitled to notice of the impounding. ,

At common law, lif the impounding was not in the common pound, but in a special pound overt,stha owner was entitled to notice, and then he was to supply food. If the impounding was in a special pound covert, (such as a barn or other enclosure, where the owner could not have access to his animals to feed them without offence,) then the impounder was to give notice and feed them at his peril. Our statutes have thrown the duty of supplying the animals with food upon the pound-keeper, and makes him liable to the owner for all damages arising from his negléet of his duty.

As the pound-keeper is thus made by law the passive custodian of the beasts impounded, and must supply their food, — as he can not let them go on one hand, nor redeem or replevy them on the other, — it is obvious, that through neglect of the owner to either redeem or replevy, the animals might be left a long and unreasonable time in the pound, the keeper put to great expense, and the pound in time be overrun by the number of animals impounded.

Hence prompt and summary action is the rule of the impounding law.

The impounder must give notice to the owner within twenty-four hours. The owner must redeem or replevy his animals within forty-eight hours after notice, or forfeit seventeen cents per day for each beast he suffers to remain in pound, “ and pay all legal.charges to the pound-keeper, which forfeiture ” (in the words of the statute) “ shall be recovered by the pound-keeper for his own use, in an action on the case.”

These provisions of the statute are plainly intended to oblige the owner to act promptly on the question, whether he will contest the lawfulness of impounding by replevying the property, or will yield to it and redeem. Delay on this point might embarrass the pound-keeper, by leaving upon his hands many animals which he ought not to be obliged to keep, and whose increasing numbers might become a burden and nuisance to him. It might involve him, (and the impounder, if liable in the first instance,) in great and needless expense. It is reasonable that the owner, who by replevin can protect all his legal rights, should take and keep his own animals. If he replevy he is not bound to pay the costs and legal charges of impounding, in order to get back his property, but they are taxable against him in the replevin suit, if the impounder recover. See Chap, on Replevin, Comp. Stat. p. 268 sec. 7. If he redeem,- he thereby admits the impounding lawful, and must pay the costs, charges and damages ; chap. 92 sec. 8. Such being the rights of the owner, if he neglect to replevy or redeem, he is in the wrong. His neglect increases costs and expenses, — delays the settlement of the wrong complained of, whereas it should be settled while the damage and injury are receut and easily shown, and incumbers the pound with animals that ought to be in their owner’s keeping. Thus, if he delays for more than forty-eight hours after notice, he becomes liable to the pouud-keeper for the forfeiture and legal charges, and the pound-keeper may sue him therefor at any time. “The legal charges” include the expense of keeping, and he is thus made directly liable therefor to the pound-keeper. The statute iu providing that the pound-keeper may recover therefor in his own name, intends that he shall bring the action who is entitled to the forfeiture, and thus excludes the impounder, unless he becomes pound-keeper.

In this case, as the evidence tended to show that the impounder did not intend to be the pound-keeper, but on the contrary applied to the pound-keeper, as such, to take and keep the horse, we should be required in order to make him pound-keeper to hold, that in all eases where there is no public pound in a town, the impounder must of necessity be regarded as pound-keeper, and can not by applying to the official pound-keeper relieve himself from the duties of the office. We do not think that this would be cousistent with the spirit or policy of our statutes. The exclusion of the evidence we deem erroneous.

The defendant also contended that the forfeiture, was in full for the costs of keeping.

The language of the statute that “ he shall forfeit seventeen cents,. &c., and pay all legal, charges,” &c., fairly implies that the legal charges shall be in addition to the forfeiture. The old statute of March 2nd, 1787, from which this is taken, is explicit: “ he shall forfeit seventeen cents,” &c., “ besides paying all necessary charges to the pound-keeper, for giving meat and drink to such creatures.”

The defendant also claims that in this suit nothing can be recovered but the forfeiture The right to sue for the expense of keeping arises from the liability of. the pound-keeper, as created by statute, hence when the facts requisite by statute to raise the liability exist, the pound-keeper may sue. So, too, of the forfeiture — it is created by statute. These rights oí action need not be coupled together. Still, where both exist, and the facts which give rise to them are all set forth in the declaration, and both are there claimed as substantive grounds of recovery, (as in this case,) we see no objection to having damages for both included in the verdict. The defendant can not complain if the plaintiff sees fit to include his claim under the statute for the expense of keeping in his penal suit to recover for the forfeiture, and so subject himself to the stricter rule of full proof .to sustain his declaration.

The defendant further claimed that all claim for forfeitures prior to nine months before suit brought, were barred by the limitation in section 23 of the statute: “ every prosecution for a fine, under the provisions of this chapter, shall be commenced within nine months after the offence is committed, and not after. ” , ’

But this provision, we think, applies only to fines proper, named in the chapter, — such as fines for rescue, pound-breach, named in the two sections next preceding the 23rd section, and others named in the chapter. Such fines go into the public treasury. The forfeitures named iu the act go to the party aggrieved, and not to the town. The forfeitures under the 10th section might extend over more than nine months of time, (as they do in this case,) and be continuous in their character, and in substance but one forfeiture. Upon this construction a suit every nine months would be necessary to give the pound-keeper redress.

The offences for which fines eo nomine are given, are not continuous, but complete when once committed, and should, if sued for, be promptly prosecuted..

Judgment affirmed, and ease remanded.