Kingsbury v. Pond

3 N.H. 511

• Court: Superior Court of New Hampshire
• Decided: October 15, 1826
• Status: Published

Opinion

By ¡he court,

It is a well settled principle of law, that, mi trespass quare clausum Jregit, a justification of the entry will cover the whole declaration. Taylor vs. Cole, 3 D. & E. 292. But admitting, in this case, that the defendant, had ⅜ right to enter into the plaintiff’s close, for the purpose of seizing Baxter’s sheep, on what ground can he justify the entry for the purpose of taking the plaintiff’s sheep ? It might deserve consideration, whether the defendant could not enter to take Baxter’s sheep. Hammond’s N. P. 166—169.—Cro. Eliz. 329, 759.-5 Coke 93.

But as the sheep of Baxter had become mixed with the sheep of the plaintiff without his fault, the officer was bound at his peril to see that he took no sheep belonging to the plaintiff ; and as he did take the plaintiff’s sheep, it was an abuse of his process, which made him a trespasser ah initio, and his entry unlawful.

Had the defendant requested the plaintiff to point out the sheep, which belonged to him, and he had refused, this might perhaps have made the plaintiff a party to the attempt to prevent the seizure of Baxter’s sheep, and might have materially altered the nature of the case. But it does not appear, that the plaintiff was requested to point out the sheep he claimed. We are therefore of opinion, that there must be Judgment for the plaintiff.