Sterling v. Warden

52 N.H. 197

Opinion

Ladd, J.

The defendant, Warden, was a witness, and evidence that he threatened to kick the plaintiff, in February, 1869, was properly admitted, to show the state of his feelings. Carr v. Moore, 41 N. H. 131; Drew v. Wood, 26 N. H. 363; Titus v. Ash, 24 N. H. 319.

It was immaterial what created the hostility. The question, which was most to blame at the time the defendant applied .to the plaintiff the injurious and defamatory epithets, was not in issue ; nor is it clear why the defendant’s feelings should be supposed to be less bitter or vindictive, in case he had suffered sufficient wrong to afford some supposed justification for such language, than if he had no provocation at all. But, however that may be, it is very clear that there must be a limit placed to inquiries of this sort, at some point; and we think it was a proper exercise of discretion by the judge at the trial to stop the investigation where he did, after enough had been admitted to show the character and extent of the ill-feeling.

So far as I am able to comprehend the defendant’s principal exceptions as stated in the case, that is, those which relate to the instructions given the jury and the refusal to give others which were requested, they all come to one thing, and present but a single question for our decision, namely, whether, assuming the defendant’s entry in the first place to have been legal, he could, by any subsequent act committed on the premises while there for the purpose specified in the plqa, make himself a trespasser ab initio, so as to be liable on the first count for breaking and entering. The court instructed the jury, in substance, that whatever Gilchrist, the new postmaster, might legally do there, the defendant might do as his servant; and that the defendant’s authority, thus derived from the postmaster, was sufficient to justifiy an entry for the purpose of removing the property belonging to the United States. The question at the trial was, whether the defendant, having all the power and authority of the postmaster, did any act which rendered his original entry wrongful; and the question now before us is, whether any act done by him there, after an entry, rightful in the first place by virtue of authority derived from the postmaster, either as his servant, or virtute officii as assistant 'postmaster, could legally have the effect to make him a trespasser ah initio.

An objection has been raised in the course of the argument, for the first time, with respect to the pleadings. It is said that the plaintiff ought to have replied the matter on which he now relies to support the first count of his declaration, inasmuch as it is matter which arose after an entry which is justified by plea. But no such question is presented by the case ; and the pleadings are not before us, except so far as they were deemed material to the questions raised at the trial on which we are now to pass. The general rule is well understood, that, where acts committed after an entry, which is justified by plea, are relied on to charge the defendant as a trespasser ab initio, such acts should be pleaded in a replication—The Six Carpenter's case, 8 Co. 146; Gargrave v. Smith, Salk. 122; Sir Ralph Boney's case, 1 Vent. 217; Butman v. Wright, 16 N. H. 219;—and it was said by Lord Hale, in Boney's case, that to state such matter in the declaration would be out of time,—“ like leaping before you come to the stile.

The matter relied on here appears to have been stated in the declaration by way of aggravation ; and although, so far as the right to recover on the count for breaking and entering is concerned, this was doubtless irregular, and like “ leaping before you come to the stile,” yet the court at the trial could not have failed to see that the declaration afforded substantially the same notice to the defendant as the same matter pleaded in a replication would have given ; and it is very likely, therefore, that, if the objection had been taken at the trial, the plaintiff would have had leave to amend his pleadings in a particular, which, under the circumstances of this case, appears to be more a matter of form than of substance. Further: it is possible, to say the least, that an examination of the whole record might show some answer to the objection. But however this may be, we think the objection comes now too late, and that it cannot properly be considered by the court in the form in which it was taken at the argument.

When this case was before us on demurrer to the pleas (51 N. H. 217), the questions considered and decided by the court were, of course, only such as arose upon the pleadings; and my brother Foster, in delivering the opinion of the court, certainly says, at p. 230, — “ If the right of entry is shown, the action, so far as it rests upon the first count, fails entirely, and the plaintiff cannot recover upon proof of the subsequent assault merely.” This remark clearly relates to the question then under discussion, namely, — the effect of a license in fact as regards subsequent wrongful acts committed by the licensee after an entry under it. That nothing more was intended is very conclusively shown by the paragraph immediately following, where it is said that “ Where the authority or license to enter and do certain things is given by the party, there, although the person to whom the authority is given may, by the commission of subsequent acts, be a trespasser, yet such subsequent acts will not affect the original entry so as to make that which was sanctioned by the party complaining a trespass.” This, as well as the whole remaining part of the discussion, shows that the elementary doctrine of the Six Carpenters’ case, that the abuse of an authority in law will make the party a trespasser ab initio, was not lost sight of. Furthermore, the remark, as the case was then presented on the pleadings, was, doubtless, strictly and literally correct in any view, and ought to have been a sufficient suggestion to the plaintiff that, unless he got leave to file a replication, the defendant at the trial might raise a troublesome and dangerous objection, which, as the event turned out, he failed to take.

But the point mainly insisted on by the defendant is, as already suggested, that he was entitled to the instruction that if the defendant had a right to enter the post-office room originally, whatever he might do afterwards could not make him a trespasser ab initio. The contention is, that this l’oom, having been appropriated and dedicated to the public use by the plaintiff as a post-office, was, pro hae vice, not the plaintiff’s close, but the close of the United States, and that the postmaster, being clothed with all the rights of the United States, as to said room, by virtue of his office, his possession or occupation thereof by himself, or his servant or assistant, could not be wrongful under any circumstances, but would stand the same as the possession of an absolute owner or lessee against one having no right at all; and it is thought this view is warranted by the opinion heretofore rendered in the case.

It must be observed, that the question principally discussed by my brother Foster, in that opinion, was one not understood to be raised by the case, or necessary to its decision ; but was considered because it had been mainly argued by counsel, and because its decision was supposed to be necessary in view of a future trial of the cause. See 51 N. H. 231. We all, at that time, concurred in the views there expressed upon the question thus brought into the case, and entertain no doubt now of their correctness. But whether that question is the one which has actually arisen on the trial since had, and which is now presented for our consideration, is another matter. Upon a full review of the authorities and -the reason of the thing, it was there held, as stated in the head note, that “ A person entitled to the immediate possession of property located upon the premises of another, without the fault of the party entitled to the possession of such property, may enter those premises, after demand, without legal process, against the consent of the party in possession, and by force, and remove the property, provided no more force is employed than becomes necessary by the resistance interposed by the other party to prevent the entry and subsequent removal of the property.” Now, if the case came within the principle thus laid down, of course the position of the defendant would be correct; that is, if it were the same as though the post-office room had been located in a public building which was the property of the government, the application of the doctrine laid down in the former opinion would undoubtedly lead to the result claimed. But we think such was not the fact. The right of the United States, in the room set apart by the plaintiff in his own dwelling-house for the purposes of a post-office, was not analogous, so far as we can see, to that of an owner or lessee. The case of Smith v. Guardians of Birmingham, 7 E. & B. 483, cited by the defendants’ counsel in support of their position, is not in point, because there the premises in question were demised to the postmaster-general at a rent of £310 for thirty years. It is true, every postmaster is required by law to “ keep an office”—4 U. S. St. 105—and the acceptance of a commission, in a place where no other provision is made, would doubtless imply an undertaking to do so. But, suppose the postmaster in one of our villages, — as is understood, to be the common practice, — should set apart a portion of his shop, or store, or dwelling-house, to be used for the safe keeping and distribution of the mails, and the general business of his office: could it be for a moment contended that the government thereby acquire such rights in his building, or in the portion thereof so set apart for this public use, that he would not be at liberty to move the office into some other building, or change its location when once established ? He must keep an office: but what does that mean ? Certainly no more, in general terms, than this, — that he shall provide a place where the people having business with the post-office may be fairly and reasonably accommodated, and the rights and interests of the government be secure.

The rights of the public, that is, of persons having business with the post-office, and the rights of the government, in a room thus appropriated, are not to be confounded. The right of the public is, to enter, upon the business for which the office was established. It is a public office, and, as to persons having business there, it makes no difference whether it be kept in a building owned by the United States or elsewhere. But the rights of the United States, or of officers representing the United States, in such an apartment, can only be such as are necessary and convenient for the proper and full control, regulation, and management of the post-office department. These purposes neither call for nor imply any right to the land itself.

If, then, it be taken that the defendant possessed all the powers and rights of the United States in the premises, he does not, in our view, stand at all in the position of an owner or lessee of the room, and we see no reason why lie might not conduct himself in such a way as to become a trespasser ab initio, the same as any other person whose original entry is by authority of law ; and it is quite elementary that an abuse of such authority makes the wrong-doer a trespasser from the beginning.

A question was raised at the trial as to the propriety of Gilchrist’s taking the defendant along with him, as his servant, to assist in moving the post-office furniture and fixtures. From the facts stated in the case, it is not clear how this inquiry became material; but no objection seems to have been made on that ground, and whether it was relevant to the main issue tried is not a question now before us. Evidence was put in, without objection, to the effect that Gilchrist knew that Warden was very objectionable to both the plaintiff and his wife ; and that when Gilchrist was about to go to the plaintiff’s house to remove the furniture, there were from six to twelve men sitting near him, unemployed, any one or all of whom would willingly have gone with and assisted him, instead of Warden, if they had been invited so to do. The defendant requested the court to instruct the jury that the fact that other persons might have been obtained to assist in moving the post-office furniture had nothing to do, — not with the main question tried, but, — with the question whether Warden was a proper person for Gilchrist to select to assist him in removing said furniture. That, clearly, cannot be so. If the question whether Warden was a proper person was in the case, as it seems to have been for some purpose or other, there can be no doubt but that the evidence was admissible upon that question. The propriety or impropriety of Gilchrist’s conduct being the issue, the circumstances under which he acted, and which must to a considerable extent control his conduct, were proper for the jury to consider.

So far as we understand the case and the position and claims of the defendant, this disposes of all the objections taken at the trial, and there must be Judgment on the verdict.