Mosher v. Jewett , 59 Me. 453 ( 1871 )

Danforth, J.

By R. S. c. 23, § 4, a party injured in bis lands by neát-cattle has two remedies. He may distrain the animals doing the mischief, and proceed as thereinafter directed, or he may have an action of trespass. In the former case, the remedy is not by distraint alone, but by that and such subsequent proceedings as are provided in the same chapter. These provisions require that the animal should have been committed to pound, and the damages ascertained by an appraisal as there specified. Instead of doing what the law requires, without the authority of and against the directions of the statute, the defendant kept the animal in his own possession. By such an unlawful proceeding he certainly could not obtain a lien upon the beast replevied for his keeping, nor could he retain one if such had existed for any purpose.

Nor is the lien given in the action of trespass, one that gives the right of possession to the party injured. It can only be enforced by attachment by the proper officer, and under a legal process. This process was not sued out, and this remedy affords the defendant no protection in this suit. ■

Nor does the attempted justification that the animal was taken up as an estray, avail the defendant. By § 11, c. 23, of R. S., a party taking up an estray forfeits all claim for keeping, and a penalty in addition unless he shall commit such estray to the pound-keeper within ten days. This provision of the statute was not complied with, and hence the defendant acquired no rights under it.

It follows that neither of the grounds of defense to this action set out in the pleadings can give the defendant any rights to the possession of the animal in question, nor any lien upon him which would authorize a judgment in his favor for the expense of keeping or for his damage. No ground is presented on which he can have any claim for keeping, and his damages, if recoverable, must be sought in a different process. Exceptions sustained.

AppletoN, C. J.; Walton, Barrows, and Tapley, JJ., concurred.