Coffin v. Field , 61 Mass. 355 ( 1851 )

Bigelow, J.

These are actions of trespass de bonis asportatis, in which the defendants, as field-drivers of the town of Nantucket, seek to justify the taking of the animals described in the writs, on the ground that they were going at large, contrary to law.

The first and chief ground of exception to the ruling of the court below is, that the only remedy for a party, whose beasts have been unlawfully distrained and impounded by a field-driver, is by an action of replevin. This objection proceeds upon the idea, that as the remedy by replevin is given in such cases by Rev. Sts. c. 113, § 17 8f seq., it operates to exclude all other remedy at common law. But this is an obvious misapprehension. When a statute confers some new right, and prescribes a remedy for a violation of that right, then the remedy thus prescribed, and no other, is to be pursued. But where a remedy existed at common law, and a statute creates a new remedy in the affirmative, without a negative, express or necessarily implied, a party may still seek his remedy at common law 1 Chit. Pl. (6th Am. ed.) 127, 164; Colden v. Eldred, 15 Johns. 220.' The cases at bar clearly come within the latter rule. It is well settled, that a party who justifies the taking of another’s property, under legal authority or process, must show that he has acted strictly in conformity with the requirements of law; otherwise, he will be considered a trespasser ab initio, and liable to an action of trespass at common law. The defendants, in all the above cases, having either failed to show that the beasts were liable to distress and impounding, or omitted, in some essential particular, to comply with the requisitions of the statute, are trespassers, and liable in this form of action for the damages occasioned by their unauthorized acts. Purrington v. Loring, 7 Mass. 388; Gilmore v. Holt, 4 Pick. 258, 263; Adams v. Adams, 13 Pick. 387; Smith v. Gates, 21 Pick. 55. This remedy has been frequently adopted in this commonwealth, in cases like the present, without objection. Gilmore v. Holt, and Smith v. Gates, ubi sup.; Brightman v. Grinnell, 9 Pick. 14; Sherman v. Braman, 13 Met. 407. See also Folger v. Hinckley, 5 Cush. 266.

The cases above cited are decisive of another exception taken by the defendants. They contended at the trial, and have argued here, that actual knowledge by the plaintiff, of the taking and impounding, was equivalent to the written notice required by Rev. Stat. c. 113, § 8, and rendered the latter unnecessary. But it is clearly settled otherwise. The defendants, having acted under an authority vested in them by law, are bound to comply with all the terms and conditions upon which it was granted. They must show that all their doings have been in entire conformity with the provisions of the statute ; because, if á departure from the requisitions of law is once allowed, there will be no rule by which to regulate the proceedings in such cases. The defendants, therefore, cannot discharge themselves of their legal obligation, by showing that the plaintiffs had notice, derived from other sources, of all the facts which the statute requires to be made known to them by the defendants, in writing. If it were so, a verbal notice would be sufficient, and the statute would be- rendered inoperative and useless. The plaintiffs had a right to insist on the precise notice required by law. Upon it their rights and remedies might materially depend; and unless, by their acts or declarations, they have misled the defendants, and induced them to omit it, the failure to give the written notice, in the manner required by the statute, was a fatal defect in the proceedings, and déprives the defendants of their justification.

The remaining exception, founded on the refusal of the court to rule that there was a waiver by the plaintiffs of all irregularities and omissions in the proceedings, cannot be sustained. In the first place, the question of waiver is one of fact, and not of law, depending upon the acts and intentions of the parties and all the circumstances of each particular case, upon which it is the proper province of the jury to pass, and not of the court to rule. But, in the next place, we can see no evidence from which such waiver could be fairly inferred. The declaration of the plaintiff, in the first of these cases, to a third person, after the commencement of the suit, that he should require the defendants to prove that the place where his horse was taken was a highway, cannot be construed into any waiver of an irregularity in the subsequent proceedings. It had no reference to them, and was a statement entirely consistent with the right to object to the doings of the defendants, after they had taken and impounded the horse. In all the other cases, the taking of the animals from the pound-keepers by the plaintiffs, and the payment of the fees to him, were acts in the exercise of a legal right, and the only mode by which the plaintiffs could gain possession of their property, without resort to legal process. Rev. Sts. c. 113, §§ 3, 7. It cannot therefore be regarded as a waiver of their right to damages against the field-drivers, for their previous tortious acts. Besides ; the rule of law is well settled, that the return of property, wrongfully taken, to the owner’s possession, and his acceptance of it, is available to the wrong doer only in mitigation of damages, and not in bar of the action. 2 Greenl. Ev. § 635 a; Hammer v. Wilsey, 17 Wend. 91. Surely the defendants ought not to object, that the plaintiffs took back their property, and now claim only such damages as they have sustained by the wrongful acts of the defendants in taking and impounding the animals, instead of leaving them in the pound to be sold, and claiming their full value of the defendants in actions of trespass. Exceptions overruled.