The opinion of the Court was delivered by
Royce, J.The first objection taken to the charge, by the plaintiff in error, is that the county court were precluded from any further agitation of the question in relation to the minute, by their decision upon the plea in abatement. But it is sufficiently evident, that no minute was, in fact, made, and no previous opinion, of decision of the court, as to the necessity of it, could prevent them, in any stage of the cause, from arresting its further progress for want of the memorandum, if, in fact, the memorandum was necessary to uphold the action.
It was certainly improper for the county court to direct the jury to find the issue in favour of the defendant, for want of the memorandum, since the existence of such a minute had no connexion with the merits of the case, which alone were in issue before the jury. But still, if the suit was void, without the minute, this ought to be considered a formal inaccuracy, for which the judgment ought not, and, indeed, could not, be reversed.
J. C. Thompson and S. S. Brown, attornies for plaintiff. A. G. Whittemore, attorney for defendant.S° that the real objection is, that such memorandum was not, in this case, necessary. Though it might admit of some doubt, whether a penal action given solely to the party aggrieved, was originally meant to be embraced in the first section of the act, yg^ by early and repeated decisions, such cases were determined to be within that section. And the Court consider the plaintiff in thiic’ase to have been the party aggrieved. Actions of the present description are given to the owner or keeper of the sheep; and in either case, the action is evidently given in view of the injury supposed to be sustained by the owner or keeper.
. No doubt could, therefore, be allowed, upon the original statute only, but that, in this case, a memorandum under the 5th section of that statute was absolutely necessary,- and without it, the suit would be void.
statute, 292.
But, in 1808, an additional statute was passed, which enacted, that no penal action given to the party aggrieved, should be construed to be within the first section of the original statute. Since the passing of this explanatory statute, the two acts are to be taken together, and are the same as the original statute would have been, with an omission, or exception, in the first section, of the present case. The question then arises, whether the 5th section can apply to this case, since it is no longer within the first section. It is manifest, that the requirement of the memorandum is made solely with reference to the limitations established by the previous sections of the statute. Now, whether the effect of the act of 1808 is to discharge actions like the present, from all limitation, is a question which the Court do not decide; but, as it certainly discharges them from the limitation contained in the said first section, and as the present case, in the opinion of the Court, does not fall within the" limitation of either of those other preceding sections, it follows, that the reason of requiring the memorandum, in cases like the present, no longer exists. The limitation in those sections is the principal, and the memorandum the incident; and when the former is destroyed by the legislature, we may well suppose they intended the latter should also cease.
It is considered likewise, that the operation of the said 5th section upon the present case is excluded, by the express words of the two statutes, when taken in connexion; for the present case is not now contained, or within the meaning of the law, mentioned in either of the preceding sections of the original act.
This would be the opinion of the Court, were the present a new question. But it has already been decided by this Court, in accordance with the opinion now expressed. Therefore, upon the authority of the case cited, as well as upon our opinion of the present case, we consider that the memorandum was not necessary, arid that the county court erred in defeating the action, for want of such memorandum.