Brown v. Smith

1 N.H. 36

Opinion

Woodbury, J.,

*

delivered the opinion of the court.

Our statute in relation to the impounding of animals(1) requires that the notification to the owner should, among other things, describe the creatures that did the damage.

When a person justifies his conduct under a particular statute, he must shew at least a substantial compliance with its provisions, 2 Mass. Rep. 419, 420. — 6 East 417.

If he derive a title to property under it, as in the present case, the authorities demand a rigid compliance with all its material requisitions. 1 Mass. Rep. 418.—4 D. & E. 368, King vs. Newcomb & al.

The adjudged cases establishing this rule, which have arisen under our statutes in relation to the extent of exeeu-tions, collections of militia fines, assessment of taxes, advertising strays, &c. are numerous. Atherton vs. Whitford, Hill., Oct., 1811-11 Mass. Rep. 468.

Indeed, the quaint maxim that the statute law is a tyrant, but the common law a nursing parent, is predicated in part on the same principle. 2 Wils. 351.-8 East 236.

But the omission in the notification in this case, of any description of one of the cattle impounded, was, on even a liberal construction, a palpable non-compliance with the statute. The materiality of this omission is demonstrable, because it prevented the owner from knowing what property of his was distrained. This point would have been more strikingly exemplified, though not altered in principle, had the “creature” omitted been the only one impounded, or the only one'of the eight which actually belonged to the person notified. But though this omission be fatal to the notification as respects the beasts not described, yet we apprehend such a defect will not impair its validity in relation to the other animals. In the case of Cross vs. Hughs, Grafton County, 1807, it was very properly decided, thatfla notice given too late rendered the whole avowry bad. While this fortifies our position, that the departure from the statute in the present case was fatal, pro tanto, it does not prove that such departure affects the whole proceeding. There the lateness of the notification extended to every article dis-trained, and the avowant did not comply with the statute in relation to a single “creature” impounded; here he strictly conformed to it as respects every creature but one. The only sound rule of construction on the subject is, for courts to be governed by the nature of the deviation from the statutory provisions. Where it is of such a character as to reach the gist of the transaction, to affect the whole, then all the proceedings must fall: but if its operations be confined to a single independent particular, then only that portion should fall which the defect reaches. So a consideration may fail in part, and not in Mo, and a defendant may be able to justify as to part and not as to all. 8 East 231, Kerrison vs. Cole & al.-11 Ves. 629, Mestaer vs. Gillespie.

The point involved in the third and forth issues, then, is material, but does not vitiate .the avowry, except as to one animal. Nor do we entertain any doubt that the defendant’s impounding that one. without giving to the plaintiff any notice of the fact, was such an abuse of the distress in reia- ; tion to the animal as to render the defendant liable to the present form of action. The writ of replevin here is extended in practice much further than in England. But were we to adopt their principles, that it does not lie against a dis-trainor, unless he so conducts as to render himself a trespasser ab initio, (1 Chitty's Pl. 562.) yet to shew that the omission in the present instance was of that character, the cases of Hopkins vs. Hopkins, 10 John. 369; Sackrider vs. McDonald, do. 253, and Pratt vs. Petrie, 2 John. 191, are express authorities.

The disagreement of the parties in this case, as to the form of the judgment and the taxation of costs, results from the difference between the English practice and our own. In the king’s bench, in some cases, where certain isSues are found for the plaintiff and others for the defendant', the latter is entitled to cost on those determined in his favor. Tidd 612, 13. But in this state, as well as in Massachusetts, the general rule is otherwise ; and if the plaintiff succeed on any issue entitling him to any part of his claim, he alone is permitted to tax cost. 7 Mass. Rep. 25, Fowler vs. Shearer.

The action of replevin, however, constitutes here an exception to the general rule. In other actions, whether founded in contract or tort, if the plaintiff establish his claim as to a single particular sued for, he shews a cause of action, and is alone the prevailing party.

But in replevin, the party instituting the suit is not alone the actor; nor in the present case the sole prevailing party. It is a preceeding in rem. It resembles a libel in a court of admiralty, and the parties are both claimants. The defendant here shows an inchoate title to seven of the “ creatures” impounded, and that the plaintiff wrongfully replevied them from him. He is, therefore, entiticd.io judgment, for damages and costs on the respective issues found i» his favor, The plaintiff shows a wrongful detention by the defendant of one of the beasts replevied, and is therefore entitled fo damages for ‘such detention, and cost upon the third and fourth issues, Rogers vs. Furber, Rock., Feb. 1814.—5 Mass. Rep. 343, Powell vs. Hensdale.

Let judgmen t be entered and costs taxed accordingly.

stat. of Feb. i’nju Lt«s .

Richardson, C. J., having been of counsel, did not sifcpn this cause.