Cummings v. Perham

42 Mass. 555

• Court: Massachusetts Supreme Judicial Court
• Decided: October 15, 1840
• Status: Published

Opinion

Shaw, C. J.

The court are of opinion that the ruling of the court of common pleas was right.

The cases cited for the defendant do not apply. Most of them are cases upon contracts forbidden by law, where allowing the vendor to maintain an action would have been to afford the power of the law to give effect to a contract intended to be prohibited. It is carrying the principle much further than the precedents will warrant, to say, because a man keeps or uses property in some way contrary to law, and in such manner as to expose himself to a penalty, that therefore an individual may lawfully take it away from him, and keep it with impunity.

Suppose, in the case cited from 11 East, 300, the plaintiff aad made bricks for sale, of sizes contrary to law, but had not in fact sold them, nor offered them for sale. Could an individual have taken them away — or, if employed to transport them from the kiln to the owner’s house, have carried them to his own, and lawfully kept them ? Were he to use them, an action for the price, if maintained, would promote the very thing intended to be prohibited.

Nor does the authority, given by statute, to kill a dog suffered to go without a collar, warrant a person to convert him to his own use. The object of the statute is, not to confer a ben efit on an individual, but to rid society of a nuisance by killing the dog. This object would not be accomplished by a person’s taking the dog to himself. This is not a case where a greater power includes a less, but where a specific power is given by law, for a specific purpose ; and as the power has not been followed by the defendant, his act is not justified.

Exceptions overruled, and judgment of the court of common oleas affirmed.