Williams v. Willard

23 Vt. 369 | Vt. | 1851

The opinion of the court was delivered by

Kellogg, J.

The right of the plaintiff to recover for the keeping of the swine is claimed upon the ground, that no village was established in Hartland, pursuant to the statute, and embracing the place where the swine were taken, and consequently that the defendant had no authority to impound them for the cause alleged at the time of impounding them. The report, however, shows, that a proper application was made to the selectmen of Hartland: that they, on the thirty first of March, 1831, made an ordinance for establishing the north village in Hartland, (which embraced the territory where the swine were taken,) and made return thereof to the town clerk of Hartland and caused the same to be recorded.

To the legality of the acts of the selectmen in establishing the village it is objected, — 1. That they did not define “ its limits and bounds,” as required by the statute, but left the west and south lines and the south west and north west corners undefined; — 2. That no sufficient notice was given of the establishment of the village, as required by the statute.

In answer to the first objection, it is to be observed, that no question is made as to the sufficiency of the description of the north and east lines of the village, but the same are conceded to be well defined. The south line of the village, as constituted, is declared to be the south line of lands occupied by Elizabeth Gallup, and the west line is described as the west line of lands occupied by Ruggles Spooner. There does not appear to be any question, but that the two last mentioned lines are well defined, so far as they extend; but the objection is, that the south line of Mrs. Gallup’s land does not extend so far west as the west line of Mr. Spooner’s land; and that the west line of Spooner’s land does not extend so far north and south as to intersect the north and south lines of the village; and hence it is said, that the north west and south west corners of the village are undefined, and that this renders the ordinance of the selectmen invalid.

It is undoubtedly necessary, that the limits and boundaries should be so defined, that lines drawn in conformity therewith shall be found to inclose the territory, which is to compose the village, in order to meet the requirements of the statute. And we are of opinion, that this is sufficiently done by the ordinance of the selectmen. The data there given furnish the means of ascertaining the north west and south west corners of the village with perfect certainty. By extending the south line of Mrs. Gallup’s land westwardly, until it meets an extension of the Spooner line, the south west corner is found ; and an extension of the west line of the Spooner land northwardly to Hartford line gives the north west corner of the village. A simple extension of these lines, as above indicated, includes the territory intended to be embraced within the village. The description is sufficient, to enable a surveyor to run out the lines around the territory composing the village ; and this, in our judgment, is a sufficient description of the limits and bounds of the village, required by the statute.

We are also of opinion, that the evidence received by the auditor to establish the fact, that the selectmen gave public notice of the limits and bounds of the village, as required by the statute, was properly received. The law neither required, that the notifications should be recorded, or preserved, nor are they presumed to be within the power of the party. Hence the only evidence, that could be reasonably expected of the posting of notifications, must be by parol. This was proved at the trial before the justice by the testimony of Charles Willard ; and he having since deceased, it was competent for the defendant to prove before the auditor the testimony of Willard at the justice trial. This was done by the testimony of Mr. Neal.

It is, however, objected, that the testimony of Neal is insufficient, inasmuch as he could not recollect the testimony given by Willard upon his cross examination. His relation of Willard’s testimony, as given in chief, was sufficient to show, that the requisite notifications were posted by the selectmen ; and Neal says, had Willard’s testimony on cross examination varied his testimony in chief, he thinks he should have recollected it. This, it appears to us, was sufficient proof of the testimony of Willard, and, if believed, justified the auditor in finding the fact, that the required notice was given by the selectmen.

But it is insisted by the defendant, that in no event can this suit be maintained, upon the facts found by the auditor. If sustained, it must be upon either an express or implied promise of the defendant. The case certainly shows no express promise of the defendant to pay 'for the keeping of the swine; and can it be said, that the facts reported raise an implied promise ? Do they create the relation of debtor and creditor between the parties 1 For if they do not, clearly this action cannot be sustained. The defendant took the swine in question, claiming the right to have them impounded. He delivered them to the plaintiff as pound keeper, a public officer, whose duty it was to receive them and detain them in the pound, pursuant to the requirements of the statute. The statute imposes no obligation upon the impounder to pay the keep to the pound keeper, and the directions given by the defendant, in relation to feeding the swine, imposed no additional obligation upon the plaintiff. The law imposed upon the pound keeper the duty of keeping and feeding the beasts committed to the pound, and there is no pretence, that the plaintiff acted in the matter, under any contract or agreement with the defendant. The direction to the plaintiff, in relation to feeding the beasts, was in substance a direction to him to discharge a duty imposed upon him by his appointment. Indeed, it can hardly be said, that the plaintiff claims, there was any express or implied undertaking of the defendant to pay for the keep of the swine; but his argument seems to place his right to recover upon the ground, that the impounding was illegal. If the impounding were illegal, the taking by the defendant was a tort. Now, if it be conceded, that the defendant had no right to impound the swine, and that in so doing he committed a trespass, we apprehend it will afford no aid in support of this suit. For notwithstanding the broad and extensive limits sometimes claimed for the action of book account, we believe it has never been held an appropriate remedy for torts.

There is no view, which we have been able to take of the case, that will enable the plaintiff to maintain this action.

The judgment of the county court is affirmed.