Merrill v. Gatchell , 17 Me. 191 ( 1840 )

The opinion of the Court was drawn up by

Sheplev J.

The plaintiff is entitled to recover unless the defendant has acquired a title to the property by -virtue of the sale by the officer. The animal was taken damage feasant and impounded, and afterward sold at auction; and the defendant’s title depends upon the evidence introduced to prove the legality of these proceedings.

It is provided by stat. 1834, c. 137, >§> 5, that the impounder shall send or deliver to the pound keeper a certificate of the purport recited in the statute; and that if no claimant appear, the pound keeper within ten days after the impounding, shall issue a warrant to two disinterested freeholders to appraise the damage done.

And the pound keeper, by section 7, is required on commitment of the beast to the pound, forthwith to advertise tho same in the manner therein prescribed; and if the owner shall not appear, within twenty days after advertising, and claim the beasts, and pay what is lawfully demandable, the pound keeper within the succeeding twenty days is to libel tho beasts in the name of the impound-er. And the Court before which such libel is pending, after notice as required, has power for the causes in the act mentioned, to render a judgment or decree of sale.

in this case a copy of the libel, order and service of notice, and a copy of the precept ordering the sale, and of the officer’s return upon it, make part of the case; but no copy of any judgment, or decree of forfeiture was produced ; and that is the only legal authority for all the subsequent proceedings. And in the case of an inferior magistrate, it should appear in such judgment or decree, that the prior proceedings had been such as to give him jurisdiction.

There does not appear to have been, a compliance with the provisions of the statute in filing the certificate with the pound keeper, or by his causing the damages to be appraised, or by adveitising, as required.

Exceptions overruled.