Barron v. Davis

4 N.H. 338

• Court: Superior Court of New Hampshire
• Decided: May 15, 1828
• Status: Published

Opinion

The opinion of the court was delivered by the

chief justice.

The first question, which this case presents for our decision, is, whether the timber, which the defendant took from Wells’ flats, was there under such circumstances, that they might lawfully seize it as forfeited i

We shall not stop to consider, what influence the circumstance that Wells’ flats are within the limits of Vermont, if the fact be so, ought to have in the decision of this question, because the case does not state where-those flats are, and because we think it clear, on another ground, that the timber was not, under the circumstances, liable to be seized as forfeited.

The title upon which the defendants rely, is founded upon a penal statute, and cannot prevail unless a fair interpretation of the statute will sanction its validity. Under the first part of the clause creating the forfeiture, in order to give a right to take up the timber it must be found floating, without being under the immediate care and control of any person. It is not enough that it may have been previously so floating, that it might have been lawfully taken up. If, at the time of the taking, it is under the control of the owner, or bis agent, the taking is illegal.

Under the other part of the clause creating the forfeiture> timber found upon the banks or meadows adjoining the river, in consequence of its having been put into the river without having been rafted, or under the control of some person, seems, at first view to be, according to the letter of the statute, forfeited, even when so found in the custody of the owner- But is this the true meaning of the statute ?

The timber liable to forfeiture, whether it be found floating or upon the shore, is forfeited to him who will take up the same. When an individual takes property which is in the custody and possession of another person, it is believed that in common parlance, he is never said to ¡take it up. A person is said to take up property which is not in the possession of any other person. The words are used in that way, in this very instance, with respect to the timber found floating. So people, when they take possession of stray cattle, are said to take them up. The expression is used several times in the statute of February 9, 1791, entitled “ an act relating to strays and lost goods,” and: the act in addition to it, passed in 1814, 1 N. H. Laws, 408, and 411.

It therefore seems to us, that the language of the statute, taken altogether in its common acceptation, does not warrant the seizure of timber in any case, when found in the custody of any person, whether it be so found upon the land or upon the water.

- It is clear, that if the timber be taken up on the water, it must be taken in delicto, and when out of the custody and control of the owner. The moment he gains possession again the right to take up ceases, and the forfeiture is purged. And we cannot bring ourselves to believe that it was the intention of the legislature to prescribe a different rule, when the timber should be found on shore.

The timber is forfeited, only when found out of the custody of the owner, and under circumstances where it cannot be supposed that the owner is to be readily known. or found. This is certainly the ease so long as the timber remains upon the water, and we cannot believe that while the legislature did not sec fit to authorize the seizure of the timber while in the custody of the owner, on the water, it could, have been the intention to subject it to such a seizure on the land.

We are, therefore, of opinion, that the timber, at the time it was taken by the defendants, was not liable to be seized as forfeited, because it was in the custody and under the control of the owners.

Another question, which is raised in this case, is, whether the plaintiffs could be legally permitted to show several distinct conversions of the property, there being only one count in the declaration ?

In trespass, unless it be in cases where the plaintiff declares with a continuando, or alleges the acts to have been done on divers days and times, no more than one distinct trespass can be proved under one count. 1 Chitty’s Pl. 384; 2 ditto, 367, note S; 1 Saund. 24, note 1.

But there is a great difference between trespass and trover. Trespass lies only where there has been a taking of the goods of the plaintiff, with what the law denominates force. The very git of the action is the disturbance of the plaintiff’s possession by force.

But in trover, the defendant is supposed to be in the possession, of the goods lawfully, by finding, and the git of the action is an unlawful conversion of them, while so in possession, to his own use. It is wholly immaterial how or at what times the goods may have gone into the possession of the defendant, because although he may have obtained possession of them by wrong, that wrong is waived, and the plaintiff seeks redress only for the wrong done by the defendant, in exercising a dominion over the goods, after they came to his possession, which was inconsistent with the plaintiff’s right of possession and property. This exercise of dominion over the property may consist of various acts done at various times, Hie whole of which constitute the injury of which the owner complains. There is no rule of law, which requires that the particular acts which go to constitute the conversion should be specified, but it is sufficient to allege, generally, that the defendant converted the goods to his own use, and evidence of any acts of the defendant at any time previous to the commencement of the suit, inconsistent with the plaintiff’s rights and property In the goods, is competent evidence to maintain the allegation. There are cases, in which the law, if it were otherwise, would he very inconvenient, if not absurd. The inconvenience of a rule requiring a plaintiff to specify the various acts that may go to constitute a conversion, may be very distinctly seen by supposing sueh a rule must he applied in a case like that of Wilson v. Read, 3 Johns. 175, which ivas trover for a hogshead of rum, brought by one tenant in common against another, and where the conversion of the rum consisted in a sale by retail.

With regard to the settlement with Safford, we think that the answer given by the counsel of the plaintiffs, is decisive. Such a settlement amounts to nothing more than a restoration of the goods, which goes only in mitigation of the damages.

Nor is the objection well founded, that the Conversion is alleged to have been made by the defendants and another person. For in an action in form, ex delicto, it is well settled, that one defendant may be acquitted, and a verdict taken against others. 3 East, 62, Govet v. Radnidge, et a.

We are therefore of opinion that there must he

Judgment on the verdict.