Rounds v. Mansfield , 38 Me. 586 ( 1854 )

Shepley, C. J.

— -The plaintiff claims to have been the owner of certain swine sold by the defendant during the year 1853.

The defence presented is, that the acts alleged to have been illegal were performed as pound-beeper of the city of Bangor.

The first objection to the plaintiff’s right to maintain the action is, that the city and not the defendant, is liable for “ all illegal doings or defaults of its pound-beeper,” by the Act approved on March 22, 1853, c. 17, § 4.

While the city is by that Act made responsible to the party injured, the Act contains no provision, that the pound-keeper shall not remain liable, as is usual, when the intention is that the corporation alone should be liable. The mere act of making a principal liable for the acts of an officer acting as an agent or deputy, does not deprive a party injured of his right to proceed against the person committing the injury.

In the second place it is insisted, that the defendant was-duly authorized to act as pound-keeper.

The fourth section of the Act of 1853, provides that the pound-keeper shall give a bdhd with sufficient sureties, “to be approved by the aldermen or selectmen, for the faithful performance of the duties of his office, before he shall be entitled to act as such pound-keeper.” Being prohibited from acting before he has given an approved bond, to enable him to act in that capacity, he must show that he had complied with the provisions of the Act. There is no proof presented of an approval of Ms bond, before August 9, 1853.

The provisions of this Act are not like those noticed in the case of Eustis v. Kidder, 26 Maine, 97.

In that case, the language requiring an approval by the selectmen, o.f a bond of a constable, was regarded as directory; for the penalty was incurred by the service of process “before giving such bond.” In this case, the title to act is made dependent upon giving a bond approved.

Defendant defaulted, — to be heard in damages.

Tenney, Howard and Appleton, J.- J., concurred.