Chadbourne v. Town of Newcastle

48 N.H. 196

Opinion

Sargent, J.

This action is brought under chapter 1519, Laws of 1854, to recover damages sustained by the plaintiff by the destruction of his property by a mob. All who engage in the mob are responsible for the damages done, and the statute above referred to makes the town or city, in which such property is destroyed, liable in certain cases also, for reasons fully considered in Underhill v. Manchester, 45 N. H. 214. But by the same chapter, section 2, it is provided that "no person or persons shall be entitled to the benefits of this act, if it shall appear that the destruction of his or their property was caused by his or their illegal or improper conduct; nor unless it be made to appear that he or they upon the knowledge had of the intention or attempt to destroy his or their property, or to collect a mob for that purpose, and, sufficient time intervening, gave notice thereof to the mayor of the city, selectmen of the town, or a justice of the peace of the city or town in which such property may be situated.”

The town’ or city not being liable in the first instance, and only being made liable on certain conditions, the question is, as stated by the court, not whether the city could or ought to have prevented the destruction of the plaintiff’s property; not whether any or all of the rioters were citizens of Newcastle or soldiers from abroad ; but simply whether the destruction of the property was caused by the owner’s illegal or improper conduct; or, if not, then whether he gave the proper notice in case he had notice himself long enough beforehand so that he could give the notice. These instructions were therefore correct.

The other instructions as to what is to be understood by the term "improper,” used as it is in connection with the term "illegal,” were substantially in accordance with the views expressed in the opinion in Underhill v. Manchester, supra; but it is claimed that, as the conduct of the plaintiff in that case was held to be illegal, the discussion as to the meaning of the word "improper” was only a dictum, and is to have no authoritative force as an authority. We have, therefore, reconsidered that point in this case. It is claimed that the word is to be treated in this connection as synonymous with the word "illegalor, if there is to be any distinction drawn between the two words, that "improper” is, at least, to be taken to mean something immoral, though not expressly forbidden by statute law. But the difficulty with that view is, that hardly any two can agree as to where the line is to be drawn between what is moral and immoral. In some communities dancing and the playing of chess, draughts, back-gammon, cards, and the like, are considered as innocent amusements and as pleasant and even profitable for the purpose of recreation, and are fashionable among all classes ; in other communities, to dance, or play cards or chess, or any other game, is considered as highly immoral and wrong; and the same difference of opinion exists among the different members of the same community.

By adopting the meaning for the word, which is given to it in the instructions in this case, we have a comparatively simple definition — a rule easily comprehended — and we give to both the words used in the statute their distinct and usual meaning; "illegal” meaning something "unlawful,” "contrary to law,” and "improper” meaning that which is "not suitable,” "unfit,” "not suited to the character, time and place.” In this way full effect is given to each of the two words in their different meanings ; and in this way, we think, we shall carry out more nearly the intention of the legislature in making the enactments, and furnish a rule that is easily comprehended and readily applied.

A majority of the court, therefore, hold the instructions to be correct; Smith, J., dissenting upon the last point.

Case discharged.