Bruce v. White , 70 Mass. 345 ( 1855 )

Shaw, C. J.

The instructions in the present case were correct. The provision of law, authorizing a field driver to take up cattle going at large, and not under the care of a keeper, (Rev. Sts. c. 19, § 22,) has two objects in view—to secure all persons against direct injury, either to their persons or property; and also to enable owners to regain possession of their stray beasts. The taking them and placing in pound, as a public place of security, where the owner can recover them, simply on payment of the necessary expenses, is a course well adapted to accomplish both these desirable objects. When, therefore, cattle are thus in fact at large, and not at the time actually under the efficient care of a keeper, whether through the fault or misfortune of the owner, it is the right and duty of the field driver to take them up and place then, in a public pound, which the town is bound to provide and maintain.

Whether, in a particular case, cattle are in fact going at large in a highway or town way, and whether they are or are not under the care of a keeper, are questions of fact to be determined by a jury, under proper directions. The court are of opinion that these questions were so left, and that proper directions were given in the present case. The fact that a third person found them at large, and took charge of them to prevent their entering any enclosure or doing other mischief, and drove them along the highway until he found a field driver, and then gave him notice of the fact, and relinquished the charge of them to him, did not, in our opinion, make such third person a keeper within the meaning of the statute, nor take the case out of its ope-r .tian, nor defeat the right and duty of the field driver to take and -impound them; and the court was right in so directing the jury.

Upon the other ground, we think the directions were right, and that the defendant is entitled to judgment on the verdict.

■ Exceptions overruled,