Hills v. Rice , 17 Me. 187 ( 1840 )

The opinion of tbe Court was by

Sheeeey J.

It is provided by stat. 1834, c. 137, <§> 8, that the action of replevin shall be brought against the impounder, and not against the pound keeper. The fifth section provides, that “the impounder shall send or deliver to the pound keeper a certificate,” the form of which is proscribed. The twelfth section provides, that “ the party impounding such beast or delivering the same to the pound keeper shall receive a reasonable compensation for Lis trouble to be determined by the pound keeper,” subject to the limitation, that it is not to exceed one half of the forfeitures mentioned in the second section. The defendant filed a certificate, though it may be a defective one, and signed it as field driver, and claimed the compensation for his trouble allowed by the statute. The person who delivers the certificate and claims tbe pay for impounding, appears to be tbe one, to whom the statute refers as the impounder; and the action is rightfully brought against him, unless he is protected by the fifth section of the act of March 31, 1831, c. 518, which provides, “ that in no case shall any town or plantation officer incur a penalty, or be made to suffer in damages by reason of his official acts or neglects, unless the same shall be unreasonable, corrupt or wilfully oppressive.” Provision was made by stat. c. 128, <§> 1, act of March 20, 1821, for the choice of field drivers annually. The thirteenth section of the act of March 12, 1834, repeals all acts and parts of acts inconsistent with its provisions, “particularly an act respecting pounds and impounding beasts going at large or damage feasant, passed March 20, 1821.” It is contended, that the whole act is not repealed, but such parts only as are inconsistent with the provisions of the act of 1834. The obvious meaning of the language is, that the act of March 20, 1821, in particular is repealed, and all other inconsistent acts and parts of acts. That this was the intention is more clearly apparent from the last part of the same clause repealing “ an act respecting lost goods and stray beasts, passed January 27, 1821, so far as it regards stray beasts,” and shewing, that when the intention was not to repeal the whole of the act named, there is found a restriction or qualification of the general language. The duty of choosing field drivers, is no longer imposed upon the towns ; nor are there any duties imposed upon such officers, or oaths required of them, or authority given to them to impound. If such officers may now exist, they must be chosen by virtue of the provision in c. 114, § 1, which requires towns to choose annually certain enumerated officers “ and other usual town officers.” Whether that phrase can be understood to refer to any other than the usual town officers provided for by law, need not-now be decided, because the act of 1831 does not protect any officers, if any such there, may be, from any but “ official acts or neglects ;” and there properly can be no official act, where it is neither authorized nor required by law. It is said, that such a construction must operate hardly upon a class of the community, who by reason of age, infirmity, or other cause, cannot personally protect their own property by impounding; but the statute makes provision, that the certificate may be sent to the pound keeper, and all the other necessary acts may as well be performed by a private agent, as by one provided by the public.

The act of 1834 does not require any act to be performed by a field driver, or recognize the existence of such an officer, and this affords additional evidence of the intention of the legislature to repeal entirely the act of 1821. The action appears to have been correctly brought against the defendant as the impounder; and the act of impounding being neither authorized nor required by law, the defendant can find no protection under the'act of 1831, from suffering the consequences, which may arise out of it.

Exceptions overruled, and. judgment for'the plaintiff.