Sanderson v. Lawrence , 68 Mass. 178 ( 1854 )

Shaw, C. J.

The only question now raised is as to the sufficiency of the notice given by the defendant to the plaintiff; which being in writing, the construction of it is a question of law. The court are of opinion that the notice, as set forth in the report, was not sufficient. This notice from the field driver to the owner, required by Rev. Sts. c. 113, § 8, is the only notice required to be given where cattle are taken going at large, and impounded; the notice left with the pound keeper was unnecessary and superfluous, and cannot supply the deficiency in the notice to be given by the field driver, who is a public officer. Wild v. Skinner, 23 Pick. 251. Pickard v. Howe, 12 Met. 198. A different rule prevails where cattle are distrained for being found damage-feasant; the latter is in the nature of a civil remedy for a private injury; the former of a public process, to vindicate the rights and insure the safety of the public in highways. The provision in question requires that when beasts are impounded, the person impounding them shall give notice in writing to the owner, if known, &c. which shall contain a description of the beasts, and a statement of the time, place and cause of impounding. A substantial compliance with this requisition is a condition precedent to the officer’s justification. Coffin v. Field, 7 Cush. 355.

The duty of the field driver is prescribed by Rev. Sts. c. 19, § 22 : “ Every field driver, within his town, shall take up, at any time, any swine, sheep, horses,” &c. “ going at large in the public highways or town ways, or on common and unimproved lands, and not under the care of a keeper.” It has been held, that cattle going at large on a turnpike are within the statute; but the reason distinctly given is, that a turnpike is a public highway. Pickard v. Howe, 12 Met. 198.

The notice given in this case does not, in our opinion, satisfy the requirements of the statute. The field driver’s notice is, among other things, to embrace the cause of taking. It must of course be true, and must state facts which show that it was a case in which the statute authorized him to do the act notified. He now justifies on the ground that the horses were running at large on the highway, which is to the injury and danger of the public; and the law authorizes and justifies him in taldng them, in that case. But his notice states no such case; it rather looks to impounding them as taken damagefeasant, and with a view to recover private damages. He says: “ I have this day been requested to take care of two mares and one colt, which were running at large, and were trespassing upon the premises of other individuals.” Here is no intimation that they were found at large in any highway or common and unimproved land, but rath'er on the premises of private persons.

The case where cattle are taken, damage-feasant, by the party injured, or by his authority and order, and that where they are taken and removed as a nuisance in highways, are very distinct, and give different rights and impose different duties, both on the owners of the animals, and the person impounding. We think it was the intent of the statute, that the officer should give such notice to the owner, as to inform him of the ground upon which his cattle have been taken, in order that he may take the proper measures for their relief. The officer, not having done this, cannot justify the talcing, but must be deemed a trespasser ab initio. New trial ordered