Sayer v. Thorp

1 Super. Ct. Jud. 28

• Court: Massachusetts Supreme Judicial Court
• Decided: August 15, 1762
• Status: Published

Opinion

THE only Question of Law in this Case was, whether the Owner of a Vessell and the Person who hired and freighted her could join in an Action of Trespass for running away with the Vessell. (¹) It was not doubted that they might both have their Actions, (²) but whether they could join was the Doubt. It was said on one Side, that Tenant and he in Reversion of a Freehold shall never join; and on the other, that it would be a Cause of multiplying Actions. The Parties agreeing, this Point was not determined.

Mr. Gridley

in this Argument said: Trespass and Debt are the two great Actions on which the Fullness of Evidence is required, and are Actions of the highest Nature.

1 (1) There are several depositions on file in this cafe, from which it appears that the sloop Prosperous was employed in freighting wood on the Chignecto River, Nova Scotia, for the use of Fort Cumberland, and that the party who ran away with her were deserting foldiers of the fort. The defence was, the consent or connivance of the matter, who was alleged to have been paid for a similar use of the sloop on a former occasion, and to have induced the attempt by telling the foldiers that there would be no resistance, and that they were fools to stay in to bad a place after their time was up. And in his own deposition he acknowledges having found forty-one dollars in his cabin, which he was told the foldiers had left, and which he was induced to put in his chest. There appears also among the papers a printed proclamation by Governor Pownall, bearing date March 17, 1759, and reciting that his Majesty, having determined to make a general invasion of Canada, called upon his faithful and brave subjects of New England for assistance; and that the Province, having resolved to raise a number of men, “have made provision for the levying and support of such to the first day of November next, said men to be then dismissed.” The words here in Italics are underscored, showing that the paper was offered to prove that the foldiers’ term of enlistment had expired before the running away with the vessel. See 3 Hutchinson’s Hist. Mass. 79. The verdict was for the defendants.

2 (2) It was formerly held that both owner and bailee might maintain trespass, but that a recovery by one should oust the other of his right of action. Bac. Ab. Trespass, C. 2. It has been since decided, that general ownership, without either possession or right to possession, is not sufficient. Ward v. Macauley, 4 T. R. 488. Muggridge v. Eveleth, 9 Met. 233.