Williams v. Beede

15 N.H. 483

• Court: Superior Court of New Hampshire
• Decided: July 15, 1844
• Status: Published

Opinion

Gilchrist, J.

The defendant’s second plea alleges that the

property was in Williams. The plaintiff excepts that a verdict cannot be returned for the defendant, if a part only of the property belonged to Williams. But this position is untenable. If replevin be brought for divers chattels, the property in all which is in issue, if the plaintiff’s property be proved in some of the chattels only, he shall have damages for their detention and costs, although the defendant shall have a return of the other chattels and his damages. Bruce vs. Learned, 4 Mass. 618. In Powell vs. Hinsdale, 5 Mass. 343, where the issue was upon the property in the chattels, it was said by Parsons, C. J., “ the plaintiff is entitled to damages for the unlawful caption and detention of such of the goods as the jury have found were his property. The defendant must have a return of such of the goods as are found not to be the plaintiff’s property, with damages for the taking of them on the writ.” To the same effect is the case of Seymour vs. Billings, 12 Wend. 287. We think that this exception cannot be sustained.

The motion in arrest of judgment is because the verdict was not returned upon any issue joined or resulting from the state of the pleadings. But the authorities cited show that upon a plea raising a question of property, the finding may be partly for the plaintiff and partly for the defendant. The result, then, which the jury have reached is legitimately derived from the state of the pleadings. In such a case as this, effect must be given to the verdict in the same manner as though the declaration had contained two distinct counts for the respective articles, or the defendant had avowed for each respectively. Seymour vs. Billings, 12 Wend. 287. The motion must therefore be overruled.

Judgment on the verdict.