Opinion
Decided December, 1885.
A declaration upon Gen. Laws, c. 144, s. 10, to recover twice the value of stray beasts found and taken up by the defendant, whereof no notice has been given, must allege that the owner was unknown. Amendments are not allowed when the facts show that justice does not require it.
DEBT, upon Gen. Laws, c. 144, 8.10, to recover twice the value of two sheep and two lambs of the plaintiff, alleged to have been found by the defendant and taken into his possession, whereof he neglected to give notice to the town-clerk of Roxbury, as required by law. Facts found by a referee, upon an appeal from the judgment of a justice of the peace. The declaration contained no allegation that the owner of the animals was unknown; and the defendant, at the hearing before the referee, filed a general demurrer.
Leonard Wellington, for the plaintiff.
Don H. Woodward, for the defendant.
Chapter 144 of the Gen. Laws, relative to strays and lost goods, does not require the taker-up or finder to give notice in the manner there specified, if the owner is known (Jones v. Smyth, 18 N.H. 119); and as the plaintiff's declaration does not allege that the owner of the animals in question was not known to the defendant, it consequently states no cause of action entitling the plaintiff to the recovery of the statutory penalty for the neglect to give such notice. Nor will an amendment of the declaration in this respect be permitted, because amendments are allowed solely for the prevention of injustice; and upon the facts reported in this case, justice does not require its allowance. Redding v. Dodge, 59 N.H. 98; Stebbins v. Ins. Co., 59 N.H. 143. Exceptions sustained.
Judgment for the defendant.
ALLEN, J., did not sit: the others concurred.