Wilson v. McLaughlin

107 Mass. 587 | Mass. | 1871

Ames, J.

1. It appears that, when the horse was taken up, he was going at large in the highway, and was supposed to be about to enter upon the premises of the defendant’s employer. Under such circumstances, the act of turning him into an inclosed pasture was not an interference with the owner’s possession, or a conversion of the horse to the defendant’s own use. Ho thing is shown at all inconsistent with a purpose on the defendant’s part to keep the horse for the owner; and it has been decided that the finder of an estray may keep it for the owner, and is not liable in trover unless he uses the estray, or refuses to deliver it on demand. Nelson v. Merriam, 4 Pick. 249. We do not understand the plaintiff to complain of this act, except on the ground that the defendant afterwards violated his trust as a voluntary bailee by turning the horse into the highway again. But this, it appears to us, was the act of his employer, and not of himself. He could not keep the horse on another man’s land, against the will of such other man. The turning out into the highway was therefore an act which he could not prevent, and for which he cannot be held responsible; and the plaintiff has no cause of action under his first count.

2. The second count also is attended with difficulties, at least equally great. If the defendant incurred a forfeiture by reason of not proceeding according to Gen. Sts. c. 79, § 2, his offence was committed more than one year before the date of the suit. By Gen. Sts. c. 155, § 20, all actions for a penalty or forfeiture on a penal statute, brought by any person to whom the penalty or forfeiture is given in whole or in part, shall be commenced within one year next after the offence is committed, and not after-wards. This provision is an effectual bar to the plaintiff’s claim in his second count.

jExceptions overruled.