Tillotson v. Preston

7 Johns. 285

• Court: New York Supreme Court
• Decided: November 15, 1810
• Status: Published

Opinion

Per Curiam.

The plaintiff brings trespass for cutting and carrying away timber, in the year 180?; and he shows title, possession, and the trespass committed by direction of the defendant, to the amount of the damages recovered. The cause then turns upon the justification set up by the defendant. The trespass being proved, it lies with the defendant to make out his defence. To do this he produces a letter written to him by the plaintiff in 1804, in which the plaintiff consents to his taking timber upon the terms proposed in a letter of the defendant. To meet the justification set up under this letter, the plaintiff shows a revocation of this permission, duly notified to the defendant, in the summer of 1806, and to which he refuses to conform, but causes the timber in question to be subsequently cut. This act of the plaintiff, in 1806, does away the force of the permission in 1804,' for that letter could not certainly be considered as a permission that was to endure for ever. If the letter was founded upon any proposition of the defendant, so as to form a contract which would justify the trespass, it certainly lay with the defendant, and not with the plaintiff, to show that fact, for it constituted an essential part of the defence. The defen4ant might have called, for the letter; and if the plaintiff did not produce it, he might have proved its contents. It certainly lay with him to make outhis justification, and the plaintiff's letter does riot of itself do it, when connected with the subsequent revocation of his consent, It would be extravagant and alarming to consider the permission in that letter as being, of itself, and without further proof, irrevocable, and that the defendant might go on without bound or limit. The plaintiff is, therefore, entitled tc~ judgment.

Judgment for the plaintiff