Dean v. Lindsey , 82 Mass. 264 ( 1860 )

Merrick, J.

The defendant was a field-driver in the town of Taunton. He found the plaintiff’s oxen at large in one of the public highways therein, not under the care of any person; and took them up, as he had a right to do. Rev. Sts. c. 19, § 22. It was his duty forthwith to impound them in the town pound. Rev. Sts. c. 113, § 1. Before driving them to the pound, he shut them up in his own yard, and went a third of a mile to the plaintiff, gave him notice of what had been done, and offered to give them up to him if he would take care of them. This offer was declined, and the oxen were immediately afterwards driven to the town pound, and delivered into the care and keeping of the pound-keeper. It was in reference to these facts, that the instructions which the court declined to give were asked for by the plaintiff.

The delay which occurred by giving notice to the plaintiff is not inconsistent with the performance of the duty required of the field-driver forthwith to impound the animals taken up. The plaintiff was the only person who could suffer, or who had therefore any right to complain of any failure on the part of the defendant to conform to the requirements of law. The offer to give the cattle up was for his benefit. If it had been accepted, he would have been relieved from the payment of the charges which could lawfully have been made against him. The time occupied in making this communication and offer to him must have been very inconsiderable; and considering the relation of the parties to each other, it does not appear to have been unreasonable that, before actually committing the cattle to the pound, the field-driver should have delayed upon the way long enough to offer to surrender them to the owner. Proceeding to the full and complete discharge of his duty as soon as the offer on his part was declined, we think it may fairly be said that he did, after taking the cattle up, forthwith cause them to be driven to the pound and impounded. His diligence did not fall short of the requirements of the statute.

He would not indeed have been justified in taking up the cattle, merely for the purpose of confining them in his own yard ; but if he took them, as he had a right to do, because they were at large without a keeper upon a public highway — and his intention to this effect is apparent from the facts reported — he might, in performance of the duty imposed upon him, have confined them there until he could with reasonable diligence and despatch have driven them to the pound. The delay which occurred not having been unreasonable, either in point of time, or on account of the object and purpose which occasioned it, the law is a justification of his proceedings; and no action can be maintained against him as a trespasser, either because he had no authority to take up the cattle, or because by his negligence and delay in impounding them there was an abuse of the authority under which he was entitled and required to act. Exceptions overruled.