Crippen v. Byron , 70 Mass. 314 ( 1855 )

By the Court.

This action is founded on the Rev. Sts c. 19, § 22, which provide that for any horses or cattle, going at large on the Lord’s day in the public' highways, and not under the care of a keeper, the field driver or any other inhabitant of the town may recover, by an action of debt, (or under the new practice act, St. 1852, c. 312, § 1, by action of tort,) for each beast, the same amount of fees, which the field driver is entitled to receive for the like beasts, when distrained and impounded.

1. This declaration states a sufficient cause of action. It states thai the defendant’s horse was going at large in the public highways on the Lord’s day, and not under the care of a keeper. If the defendant has any excuse, it is for him to show it.

2. It does, by necessary implication, describe the penalty; for the amount of fees which the field driver would be entitled to receive for the horse, if distrained and impounded, is defined in the public laws, of which the court must take judicial notice

3. The continuance of the case by the justice, and consequent increase of costs, are no ground for arresting judgment.

Exceptions overruled.