Varney v. Bowker , 63 Me. 154 ( 1873 )

Virgin, J.

In the certificate deposited with the pound keeper, the defendant describes himself as “field-driver of said town,” (Brunswick). But the statute of 1821, c. 128, § 1, which provided for the annual election of “three or more suitable persons for field drivers,” &c., was repealed by the statute of 1834, c. 137, § 13, since which time towns have not been required to choose any such officers, nor are there any duties imposed upon such officers or authority given them to impound. Hills v. Rice, 17 Maine, 187; Eastman v. Hills, 18 Maine, 249.

R. S., c. 23, §§ 2 and 4, provide two distinct causes for the impounding of cattle — § 2 for the recovery of a forfeiture for being “found at large without a keeper in the highways,” &c., and § 4 for the recovery of damages to land.

Section 8 provides what facts shall be stated in the certificate of the impounder together with its purport.

Thus far the statute provides remedies for two wrongs — one, for the injury and danger of the public, and the other a private injury as when the beast is taken damage feasant. These provisions are for the benefit of the public and the individual suffering damages.

But § 11 is of a different character, and its provisions are intended for the benefit of the owner of the beasts. It authorizes any person to take up,- “as an estray,” “any such beast” found (1) “in any public way ;” or (2) “in his inclosnre or possession.” When thus found, the person taking up the estray may keep him “ten days;” and “if no owner calls for him, commit him, with a certificate as described in § 8 to the pound-keeper of his town,” who shall keep him till called for by the owner, “and all due charges paid.”

It will be perceived that the owner is liable only for “all due charges” — no “damages” or “forfeitures” as in cases under. §§ 2 and 4.

The certificate is faulty in two respects. (1) It states two causes for impounding — one because the cattle were “found by him at large without a keeper in the highways,” and the other “in the inclosure of Bowdoin College in said town.” For the latter cause this defendant had no authority to impound — and (2) because he claims a forfeiture, when he had no authority to claim it, but only the “charges” mentioned. Exceptions overruled.

Walton, Dickerson, Barrows and Danforth, JJ., concurred.