A TREATISE 
 
 ON THE 
 
 LAW OF TEESPASS 
 
 TWOFOLD ASPECT 
 
 THE WRONG AND THE REMEDY. 
 
 By THOMAS W. WATERMAN, 
 
 COUNSELLOR AT LAW. 
 
 IN TWO VOLUMES. 
 
 VOLUME I. 
 
 NEW YORK: 
 BAKER, VOORHIS & CO., PUBLISHERS, 
 
 6G NASSAU STREET. 
 1875.
 
 T 
 1875 
 
 Entered according to the Act of Congress, in the year 1875, by 
 
 THOMAS W. WATERMAN, 
 
 In the Office of the Librarian of Congress, at Washington. 
 
 BAKER & GODWIN, PRINTERS, 
 ^ No. 25 Parli Row, New Yorli.
 
 PREFACE 
 
 The accumulation of legal decisions has naturally led to the 
 multiplication of treatises on special subjects of the law, until the 
 treatment in separate works of at least the more prominent topics 
 has gradually come, to be regarded not only as a very great conven- 
 ience, but an absolute necessity. 
 
 Among the invasions of private right, trespass is conspicuous for 
 frequency of occurrence and universality of application. The variety 
 of important questions arising from it is shown by the numerous re- 
 ported cases dating from the earliest period, and continuing unin- 
 terruptedly to the present time. The desirability of the separate 
 and independent consideration of a subject which is at the same time 
 so practical and so extensive, is apparent. But strange to say, this 
 fruitful field has hitherto not been explored by any legal writer ex- 
 cepting in connection with, and as a branch of, some other general 
 topic. 
 
 The following pages, designed to supply a want which every 
 member of the bar in active practice must have more or less felt, are 
 the resnlt of several years of diligent labor. The plan adopted by 
 the author at the outset, to which he steadily adhered, necessarily 
 involved protracted toil. It was, to eschew, with few exceptions, all 
 books of reference but law reports ; to aim at the careful reading of 
 every reported decision ; and finally, to adopt his conclusions only 
 after a systematic and patient study and comparison of tiie cases, 
 commencing with the earliest adjudications, and following the stream 
 of judicial exposition down to the latest. The extent of his re- 
 searches, which however inadequately performed have been con- 
 scientiously prosecuted, will appear from the number of citations. 
 
 The w^ork, which is in two volumes, consists of four books : 1st. 
 Trespass in general; 2d. Trespass to the person ; 3d. Trespass in 
 relation to personal property ; and 4th. Trespass on real estate. The 
 scope of these several books, which as a whole are intended to em- 
 brace every species of trespass known to the law, is sufiiciently 
 indicated by their titles. As there is a full analysis of each chapter, 
 
 306188
 
 IV PREFACE. 
 
 and the text is divided into sections which are interchangeably 
 referred to, it is hoped that the facilities for investigation will be 
 found ample. Yolume one being mainly devoted to trespass to the 
 person and personal property, and volume two exclusively to trespass 
 on real estate, it seemed proper and desirable that each volume, pre- 
 senting as it does questions which in a certain sense are wholly dis- 
 tinct, should be rendered complete in itself, and each has accordingly 
 been supplied with a full index, table of contents, and table of cases. 
 
 With regard to the treatment of the subject, it may be observed, 
 that legal propositions are seldom left for support to the mere cita- 
 tion of authorities, but are generally enforced and illustrated by 
 examples, which enables the reader to judge how far the decisions 
 sustain the inferences sought to be deprived from them. In the state- 
 ment of cases as much brevity has been employed as seemed con- 
 sistent with a full understanding of the points discussed ; a concise 
 narrative of facts being first given, and then the substance of the 
 decision. Additional examples in further illustration of the text, 
 and also the details of some of the more important cases, will be 
 found in the notes. The citations have been carefully verified. 
 
 The author submits the result of his labors to the indulgent con- 
 sideration of his legal brethren. 
 
 BiNGHAMTON, N. Y., March, 1875.
 
 CONTENTS OF VOLUME ONE. 
 
 PAGE. 
 
 Preface iii 
 
 Oases Cited xi 
 
 BOOK I. 
 
 TKESPASS IN GENERAL. 
 
 OHAPTEE I. 
 definition and nature of trespass. 
 
 1. Trespass defined 1 
 
 2. Acts which may or may not constitute trespass 2 
 
 3. Infringement of right without specific injury 12 
 
 4. Motive or intention 13 
 
 5. Liability for consequences of wrongful act 19 
 
 6. Inciting or aiding the commission of trespass 22 
 
 7. Ratification and adoption of wrongful act 27 
 
 8. Indemnity of innocent wrong-doer 28 
 
 CHAPTER II. 
 
 trespass as a remedy. 
 
 1. When the action will lie 31 
 
 3. Action for wrong committed by married woman 38 
 
 3. Redress for the wrongful acts of minors 41 
 
 4. Liability of master for wrongful acts of servant 42 
 
 5. Liability of principal for wrongful acts of agent 50 
 
 6. Responsibility of sheiiif for the wrongful acts of his deputy 51 
 
 7. Action against corporations , 52 
 
 8. Liability of partners 54 
 
 9. Action by and against executors 54 
 
 10. Liability of persons whose authority is derived from statute 55
 
 Tl CONTENTS. 
 
 PAGE. 
 
 11. Action in the case of joint wrong-doers 61 
 
 13. Settlement of claim for clamnges 68 
 
 13. "When ])arty confined to remedy given by statute ,,..... 75 
 
 14. Declaration 76 
 
 15. Plea 81 
 
 16. Replication 87 
 
 17. New assignment 88 
 
 18. Right to open and close 90 
 
 19. Evidence 90 
 
 20. Damages 101 
 
 21. Costs 109 
 
 23. Verdict 110 
 
 23. Amendment after verdict ... 113 
 
 24. Judgment 114 
 
 25. Writ of error 115 
 
 26. New trial 116 
 
 BOOK 11. 
 
 TRESPASS TO THE PERSON. 
 
 CHAPTER I. 
 
 ASSAULT AND BATTERY. 
 
 1. Meaning of assault 131 
 
 2. Battery defined 134 
 
 3. "When accident will excuse 126 
 
 4. Self-defense 138 
 
 5. Defense of property 135 
 
 6. Retaking property 146 
 
 7. Right of owner or occupier of premises to eject jiersons therefrom 151 
 
 8. Right of innkeeper to exclude or expel persons 154 
 
 9. Expulsion from religious meeting 158 
 
 10. Expulsion from place of public amusement 160 
 
 11. Forcible removal from public conveyance 163 
 
 13. Right of access to railway depot 177 
 
 13. Seduction of daughter with violence 180 
 
 14. Chastisement of pupil by teacher 183 
 
 15. Chastisement of servant by master 186 
 
 16. Corporal punishment by master of vessel 187 
 
 17. Abuse by keeper of almshouse 187 
 
 18. Personal violence by husband upon wife 189 
 
 19. Injury from reckless driving 190 
 
 20. Resisting arrest 192 
 
 21. Aiding or encouraging assault 193 
 
 23. Place of trial 195 
 
 23. Holding to bail . . 200 
 
 24. Parties to action 200 
 
 25. Declaration 203 
 
 26. Plea 306
 
 CONTENTS. Vll 
 
 PAGE. 
 
 27. Replication 216 
 
 28. Right to begin 219 
 
 29. Burden of proof , 220 
 
 30. The proof must correspond with the pleadings 220 
 
 31 Proof of time 224 
 
 32. Evidence as to possession 224 
 
 33. Proof of malice 228 
 
 34. Admissions and declarations .• 230 
 
 35. Evidence of provocation 235 
 
 36. Proof of mitigating circumstances 240 
 
 37. Evidence as to character 243 
 
 38. Proof of consequences of wrongful act 246 
 
 39. Evidence as to pecuniary condition of party 247 
 
 40. Damages in general 248 
 
 41. Damages from wounded feeling 249 
 
 42. Malicious intent as affecting the damages _ 251 
 
 43. Damages for assault upon child or servant 255 
 
 44. Damages after conviction for public offense 257 
 
 45. Damages accruing after commencement of action 258 
 
 46. Inadequate or excessive damages '. 259 
 
 47. Costs 260 
 
 48. Verdict J . . . 261 
 
 CHAPTER II. 
 
 FALSE IMPRISONMENT. 
 
 1. False imprisonment defined 264 
 
 2. Arrest by private person 267 
 
 3. Private person causing arrest 271 
 
 4. Arrest and detention under military order 288 
 
 5. Arrest by officer without warrant 290 
 
 6. Requisites of warrant of arrest 297 
 
 7. Duty of officer to communicate substance of warrant 301 
 
 8. Liability of officer in the execution of process 302 
 
 9. Private person aiding officer in arrest 310 
 
 10. What constitutes an arrest 312 
 
 11. Detention bv oflicer of party arrested 314 
 
 12. OfBcer's return 317 
 
 13. Responsibility of magistrates 330 
 
 14. Waiver of right of action 326 
 
 15. Nature of the action 328 
 
 16. Declaration 339 
 
 17. Plea justifying arrest without warrant 330 
 
 18. Plea justifying arrest under process • 334 
 
 19. Replication to plea alleging breach of the peace 337 
 
 20. Replication to plea justifying under process 337 
 
 21. Evidence 341 
 
 22. Damages 350
 
 Viii CONTENTS. 
 
 BOOK III. 
 TRESPASS IN RELATION TO PERSONAL PROPERTY. 
 
 CHAPTER I. 
 
 TITLE TO PERSONAL PROPERTY. 
 
 PAGE. 
 
 1. Property in wild animals 355 
 
 2. Property in goods where their character has been changed 358 
 
 3. Property in goods by accession 363 
 
 4. Conlusion or intermingling of goods 363 
 
 5. "When owner of goods estopped from asserting title to them 366 
 
 6. When property in goods vests in trespasser 368 
 
 7. Properly made chattels by agreement 368 
 
 8. General rule as to fixtures 369 
 
 CHAPTER II. 
 
 WRONGFUL TAKING OF PERSONAL PROPERTY BY PRIVATE 
 
 PERSON. 
 
 1. What constitutes 381 
 
 2. Creditor obtaining possession of goods by unlawful means 388 
 
 3. Party directing illegal seizure or sale by officer 390 
 
 4. Right of owner of goods to retake them 401 
 
 5. Return of property by wrong-doer 406 
 
 CHAPTER III. 
 
 THE TAKING OF PERSONAL PROPERTY BY OFFICER. 
 
 1. Goods that may or may not be taken 409 
 
 2. What essential to constitute an attachment 417 
 
 3. When personal property bound by levy 420 
 
 4. Protection afforded to officer by process 428 
 
 5. Duty and liability of officer in seizing goods 443 
 
 6. Power and duty of person specially authorized to act officially 487 
 
 7. Validity of acts of officer de facto 488 
 
 8. Liability of sheriflf for illegal acts of deputy 489 
 
 9. Liability of assessors of taxes 492 
 
 10. Liability of collector of taxes 498 
 
 CHAPTER IV. 
 
 WHO ]MAY MAINTAIN THE ACTION. 
 
 1. General rule 507 
 
 2. In case of goods taken from officer 528 
 
 3. Where goods are taken from a servant 530 
 
 4. In the case of a corporation 531 
 
 5. Where the goods belonged to a person deceased 532
 
 CONTENTS. ix 
 
 PAGE. 
 
 6. Where property is mortgaged 534 
 
 7. Where the owner has parted with his right of possession 547 
 
 8. In case of bailment 548, 
 
 9. Where there has been a conditional sale 554 
 
 10. In case of agency 557 
 
 11. Tenants in common 561 
 
 12. Where possession of goods is obtained by fraud 567 
 
 CHAPTER V. 
 
 EEMEDY FOR THE WRONGFUL TAKING OR INJURY OF PERSONAL., 
 
 PROPERTY. 
 
 1. Ground of action 585 
 
 2. Declaration 588 
 
 3. Grounds of defense 595 
 
 4. Plea 603 
 
 5. Replication , 612 
 
 6. Evidence of possession 614 
 
 7. Proof of taking 615 
 
 8. Evidence as to value 617 
 
 9. Proof of time 617 
 
 10. Attendant circumstances 617 
 
 11. Intention 618 
 
 12. Presumptions 620 
 
 1 3. Evidence of justification 624 
 
 14. Evidence in mitigation of damages 632 
 
 15. Objections to evidence, when to be made 635 
 
 16. Damages in general ;• 636 
 
 17. Exemplary damages ,~ 647
 
 CASES CITED IN YOLUME OXE. 
 
 (The references are to the pages.) 
 
 Aaron v. Alexander. 275, 316, 346. 
 
 Abbe V. Clark, 79, 80. 
 
 Abbott V. Booth, 298. 
 
 Abbott V. Kimball, 392, 473, 475, 476. 
 
 Acker v. Campbell, 568. 
 
 Ackworth v. Kempe, 439, 447, 490, 626. 
 
 Adames v. Field, 411. 
 
 Adams V. Adams, 465. 
 
 Adams v, Andrews, 161. 
 
 Adams v. Barry, 79. 
 
 Adams v. Brougbton, 602. 
 
 Adams v. Freeman, 23, 28, 278. 
 
 Adams v. Hall, 68. 
 
 Adams v. Hemmeuway, 31, 35. 
 
 Adams v. Morgan, 81. 
 
 Adams v. Rivers, 2. 
 
 Adams V. Waggoner, 125. 
 
 Adamson v. Jarvis, 29. 
 
 Addison v. Overend, 79. 
 
 Adkins v. Brewer, 60, 434. 
 
 Adwin V. N. Y. &c. R. R. Co., 167. 
 
 Agry V. Young. 492. 
 
 Akeriey v. Haines, 256. 
 
 Akley V. Dale, 341. 
 
 Albany & West Stockbridge R. R. Co. 
 
 V. Cady, 109. 
 Alderson v. Waist ell, 128, 135. 
 Alexander v. Hoyt. 57, 498. 
 Alfred V. Bray, 393. 
 Algood V. Hutchins, 508. 
 Allaire v. Ouland, 29. 
 Allen V. Archer, 92. 
 Allen V. Colby, 483. 484. 
 Allen V. Craig, 61, 105, 117. 
 Allen V. Crary, 462. 
 Allen V. Crofoot, 408, 478, 479. 
 Allen V. Demiug, 584. 
 Allen V. Ford, 586. 
 Allen V. Gray, 56,59, 342. 
 Allen V. Greenlee, 274. 
 Allen V. Martin, 346. 
 Allen V. Parkhurst, 111, 335. 
 Allen V. Wright, 270, 280, 291. 
 Allison V. Chandler, 102. 
 Alfred V. Bray, 642. 
 Alton & Chicago R. R. Co. v. Dalby, 
 
 162. 
 
 Alvord Carriage Mauf. Co. v. Gleason, 
 
 375. 
 Amer v. Longstreth, 104. 
 Amick V. O'Hara, 14. 
 Anderson v. Hill, 38, 202, 203. 
 Anderson v. Nicholas, 568. 
 Andre v. Johnson, 147. 
 Andrews v. Chase, 85. 
 Andrews v. Marris, 8. 
 Andrews v. Stone, 206. 
 Angell V. Keith, 447. 
 Anthony v. Gilbert, 647. 
 Anthony v. Haney, 370. 
 Arden v. Patterson, 38. 
 Armory v. Delamirie, 507. 
 Arnold v. Ringold, 190. 
 Arnold v. Steeves, 302. 
 Arrowsmith v. Le Mesurier, 313. 
 Arthur v. Flanders, 597, 598. 
 Ash V. Dawnay, 464. 
 Ash V. Putnam, 367, 570. 
 Ash V. Savage, 544. 
 Ashbv V. White, 12. 
 Ashley y. Minnett, 620. 
 Ashmore v. Hardy, 608. 
 Ashmun v. Williams, 378. 
 Atkinson v. Matteson, 222. 
 Atkinson v. Warne, 285, 348. 
 Attack V. Bramwell, 382. 
 Atwood V. Fricot, 101. 
 Aulger V. Smith, 228. 
 Austin V, Norris, 83, 84, 
 Austin V. Sawyer, 375. 
 Austin V. Tilden. 568. 
 Averett v. Thompson, 438. 
 Averill v. Smith, 502. 
 Averill v. Williams, 393. 
 Avery v. Bulklv, 195. . 
 Avery v. Rav, 240, 246, 249. 
 Aveson v. Kinnaird. 231. 
 Ayer v. Ashmead, 69, 70, 107. 
 Ayer v. Austin, 90. 
 Ayres v. Kelly, 217. 
 
 Babbott V. Thomas, 190 
 Babcock v. Lamb, 84. 
 Bachurst v. Ciinkard, 422.
 
 xu 
 
 TABLE OF CASES CITED. 
 
 Backus V. Dudley, 397. 
 
 Badger v. Pliinncy, 41, 403. 
 
 Badkin v. Powell, 34, 433. 
 
 Bagwell V. Jamison, 33. 
 
 Bailey v. Burton, 544. 
 
 Bailey v. Colby, 556, 557. 
 
 Bailey v. Hall, 475. 
 
 Bailey v. Kay, 315. 
 
 Bailey v. Wiggins, 3. 398. 
 
 Bainbridge v. Lax, 87. 
 
 Baird v. Householder, 371. 
 
 Baker v. Baker, 588. 
 
 Baker v. Freeman, 497, 500, 
 
 Baker v. Jewell, 566. 
 
 Baker v. Loyd, 535. 
 
 Baker v. Wriglit, 35. 
 
 Baker v. Young, 38. 
 
 Balch V. Patten, 586. 
 
 Baldwin v. Breed, 378. 
 
 Baldwin v. Calkins, 78. 
 
 Baldwin v. Hayden, 139, 137. 
 
 Baldwin v. Western R. R. 79. 
 
 Ball V. Bullard, 301. 
 
 Ballard v. Bond, 158. 
 
 Balme v. Hutton, 567. 
 
 Baltimore &c. R. R. Co. v. Blocher, 351, 
 
 636. 
 Baltimore &c. R. R. Co. v. Breinig, 358. 
 Bangor &c. R. R. Co. v. Smith, 11. 
 Bangs V. Snow, 494. 
 Bank's case, 134. 
 Barber v. Barnes, 31. 
 Barber v. Chapin, 637. 
 Barber v. Rollinson, 377, 393. 
 Barkeloo v. Randall, 59. 
 Barker V. Binninger, 430. 
 Barker v. Chase, 507, 539. 
 Barker v. Coffin, 174. 
 Barker v. Midland R. R. Co. 178. 
 Barker v. Stetson, 393. 
 Barnes v. Barber, 439. 
 Barnes v. Hurd, 33. 
 Barnes v. Martin, 147, 347, 351, 401. 
 Baraes v. Wood, 144. 
 Barney v. Brown, 574, 578. 
 Barrett v. Copeland, 319. 
 Barrett v. Crane, 56 
 Barrett v. Pritchard, 534. 
 Barrett v. Warren, 381, 385, 569. 
 Barrett v. White, 444, 465, 475, 480. 
 Barron v. Cobleigh, 365, 445, 481. 
 Barron v Mason, 141. 
 Barrow v. Page, 9. 
 Barry v. Bennett, 639. 
 Bartlett v. Churchill, 317. 
 Bartlett v. Kinsley, 19. 
 Bartram v. Stone, 333, 233, 336. 
 Basely v. Clarkson, 15. 
 Bass V. Bean, 1 90. 
 Bass V. Pierce, 553, 553. 
 
 Basset v. Porter, 344. 
 
 Basset v. Salisbury Manf. Co. 13. 
 
 Batchelder v. Carter, 580. 
 
 Batchelder v. Currier, 56, 440, 635. 
 
 Batchelder v. Kelly, 50. 
 
 Batchelder v. Whitcher, 35, 335, 497. 
 
 Batchellor v. Schuyler, 448. 
 
 Bateman v. Bluck, 598. 
 
 Bates V. Conkling, 97. 
 
 Bates V. Hazeltine, 56. 503. 
 
 Bates V. Quattlebom, 600. 
 
 Bauer v. Clay, 365, 353. 
 
 Bayley v. Bates, 448. 
 
 Baynes v. Brewster, 385, 333. 
 
 Beach v. Bay State Co. 196. 
 
 Beach v. Hancock, 133, 359. 
 
 Beach v. Schmultz, 865. 
 
 Beal agst. Finch, 95, 114. 
 
 Beals V. Guernsey, 575. 
 
 Bean v. Hubbard, 446, 477. 
 
 Beardsley v. Sherman, 374. 
 
 Bebee v. Steel, 335. 
 
 Beckwith v. Boyce, 374. 
 
 Beckwith v. Philby, 391. 
 
 Beebe v. Ayrcs, 173. 
 
 Beecher v. Derby Bridge and Ferry Co.^ 
 
 103. 
 Beecher v. Parmele, 149, 401. 
 Beekmau v. Lansing, 430. 
 Beers v. St. John, 378, 379. 
 Belden v. Grannis, 589. 
 Belk V. Broadbent, 303, 338, 336, 433, 
 
 607. 
 Bell V. Hausley, 135. 
 Bell V. Miller, 33. 
 Bell V. Monahan, 513. 
 Bell V. Raymond, 337. 
 Bell V. Walsh, 67. 
 Bellows V. Shannon, 193, 303. 
 Belmont v. Lane, 636. 
 Benedict v. Benedict, 378. 
 Bennet v. Bayes, 386. 
 Bennet v. Fuller, 639. 
 Bennett v. Hood, 599. 
 Bennett v. Olcott, 183. 
 Bennus v. Guyldley, 330. 
 Benson v. Frederick, 250. 
 Benson v. Swift, 306. 
 Bentley v. Goodwin, 573. 
 Berriman v. Gilbert, 39. 
 Berry v. Borden, 318. 
 Berry v. Fletcher, 105. 
 Bertie v. Pickering, 588. 
 Betts V. Lee, 363, 368. 
 Bevin v. Linguard, 363. 
 Bigelow V. Huntley, 555. 
 Bigelow V. Stearns, 56, 115, 331, 324. 
 Billings V. Russell, 115, 390. 
 Bingham v. Garnhuult, 238. 
 Birchard v. Booth, 238.
 
 TABLE OF CASES CITED. 
 
 xm 
 
 Bird V. Clark, 381, 513. 
 
 Bird V. Holbrook, 144. 
 
 Bird V. Jones, 265, 366. 
 
 Bird V. Lyman, 195. 
 
 Bird V. Randall, 63. 
 
 Birdseye v. Ray, 421. 
 
 Birge v. Gardner, 146. 
 
 Bishop V. Baker, 595. 
 
 Bishop V. Doty, 563. 
 
 Bishop V. Ely, 66. 
 
 Bishop of London's Ca«e, 355. 
 
 Bishop V. Viscountess Montague, 396. 
 
 Bissell V. Gold, 275. 
 
 Bixby V. Franklin Ins. Co., 552. 
 
 Blackburn v. Bowman, 8. 
 
 Blackburn v. Minter, 241. 
 
 Blackley v. Sheldon, 112. 
 
 Blackstock v. The N. Y. & Erie R. R. 
 
 Co., 43. 
 Blades v. Higgs, 137. 
 Blake v. B^irnard, 123. 
 Blake v. Damon, 229. 
 Blake v. Hatch, 418, 516. 
 Blake v. Johnson, 504. 
 Blake v. White, 621. 
 Blanchard y. Goss, 116, 278, 504, 533. 
 Blann v. Crocheron, 107. 
 Blatchley v. Moser, 56. 
 Blevins v. Baker, 458. 
 Blin V. Campbell, 34. 
 Bliven v. Hudson River R. R. Co., 386. 
 Blood V. Adams, 208. 
 Blood V. Sayre, 56, 60. 
 Bloomer v. State, 265. 
 BIoss V. Plymale, 74, 100. 
 Blossom V. Barrett, 205. 
 Blunt V. Beaumont, 209. 
 Blunt V. McCormick, 103. 
 Blyth V. Topham, 144. 
 Blythe v. Tompkins, 105. 
 Boafrd of Trustees v. Schroeder, 386. 
 Boerum v. Taylor, 592. 
 Boice V. The Hudson River R. R. Co., 
 
 174. 
 Boise V. Knox, 513, 536. 
 Boles V. Pinkerton, 211. 
 Boling V. Wright, 241. 
 Bond V. Padelford, 442. 
 Bond V. Ward, 410, 456. 
 Bond V. Wilder, 465, 468. 
 Bonesteel v. Bonesteel, 351, 353. 
 Bonesteel v. Flack, 580. 
 Bonnell v. Dunn, 446. 
 Bonomi v. Backhouse, 9. 
 Booth V. Cooper, 328. 
 Boston &c. R. R. v. Gilmore, 414. 
 Boston V. Neat, 508. 
 Bowen v. Parry, 216. 
 Bowles V. Senior, 622. 
 Bowman v. Noyes, 108. 
 
 Boyce v. Bayliflfe, 312, 353. 
 
 Boyd V. Brown, 573, 646. 
 
 Bcyleston v. Kerr, 2, 282. 
 
 Boynton v. Turner, 560. 
 
 Boynton v. Willard, 89, 514, 630. 
 
 Bracegirdle v. Orford, 343. 
 
 Brackett v. RuUard, 483, 535, 544. 
 
 Brackett v. Norton, 92. 
 
 Brackett v. Vining, 465. 
 
 Bradish v. Schenck, 79, 607. 
 
 Bradlaugh v. Edwards, 105. 
 
 Bradley v. Boynton, 566. 
 
 Bradley v. Davis, 548. 
 
 Bradley v. Powers, 83. 
 
 Brady v. Haines, 575. 
 
 Bragg V. Wetzel, 89. 
 
 Brainard v. Head, 433. 
 
 Brainard v. Stilphin, 435. 
 
 Branscomb v. Bridges, 585. 
 
 Breck v. Blanchard, 286. 
 
 Breidenthal v. McKenna, 97. 
 
 Brennan v. Carpenter, 34. 
 
 Brewer v. Dew, 509. 
 
 Brewer v. Sparrow, 585. 
 
 Brewer v. Temple, 203. 
 
 Brice v. Vanderheyden, 554. 
 
 Bridge v. Eggleston, 621. 
 
 Bridge v. G. Junction R.R. Co., 597,598 
 
 Bridges v. Blanchard, 14. 
 
 Bridges v. Purcell, 161. 
 
 Bridgett v. Coyney, 266. 
 
 Brierlv v. Kendall, 545, 641. 
 
 Briggs V. Gleason, 481. 482, 645. 
 
 Briggs V. Mason, 83, 445, 612. 
 
 Briggs V. Oaks, 550. 
 
 Briggs V. Wardwell, 57, 58, 325. 
 
 Briggs V. Whipple, 319, 501, 611. 
 
 Brightmau v. Grinnell, 465. 
 
 Briscoe v. McElween, 637. 
 
 Britton v. South Wales R. R. Co., 118. 
 
 Britton v. Turner, 561. 
 
 Brizsee v, Maybee, 104, 642. 
 
 Brock V. Smith, 363. 
 
 Brock V. Stimson, 294. 
 
 Brokaw v. N. J. R. R. Co., 202. 
 
 Bromley v. Ilutchins, 296, 297, 
 
 Brooks V. Adams, 321. 
 
 Brooks V. Ashburn, 63. 
 
 Brooks V. Galster, 374. 
 
 Brooks V. Goss, 537. 
 
 Brooks V. Olmstead, 15, 387, 407. 
 
 Broome v. Wooton, 600. 
 
 Broughton v. Whallon, 387. 
 
 Brown v. Allen, 62, 105, 263. 
 
 Brown v. Artcher, 608. 
 
 Brown v. Burrus, 111. 
 
 Brown v. Cambridge, 74. 
 
 Brown v. Chadsey, 270, 282, 328, 829, 
 
 331. 
 Brown v. Chapman, 275, 276. 383, 393.
 
 XIV 
 
 TABLE OF CASES CITED. 
 
 Brown v. Cook, 535. 
 
 Brown v. Cummings, 103, 116, 246. 
 
 Brown v. Davis, 628. 
 
 Brown v. Getchell, 308. 
 
 Brown v. Gordon, 244. 
 
 Brown v. Hedges, 79. 
 
 Brown v. Howard, 96, 97, 187. 
 
 Brown v. Jones, 341. 
 
 Brown v. Kendall, 3, 127. 
 
 Brown v. Marsh, 69, 74. 
 
 Brown v. ^lay, 224. 
 
 Brown v. Neal, 7. 
 
 Brown v. X. Y. Cent. R. R. Co., 28<3. 
 
 Brown v. Perkins, 67. 
 
 Brown v. Purviance, 50. 
 
 Brown v. Scott, 521. 
 
 Brown v. Thomas, 513. 
 
 Brown v. "Wait, 446. 
 
 Brown v. Ware, 507. 
 
 Brown y. Wenlworth, 565. 
 
 Brown v. Wheeler, 222, 225, 262. 
 
 Brown v. Wooton, 62, 63, 74, 108. 
 
 Browne v. Dawson, 144, 150. 
 
 Brow^nell v. Carnley, 549, 553. 
 
 Browuell v. Mauch'ester, 519, 530, 549. 
 
 Browning v. Hanford, 443, 627. 
 
 Browning v. Skillman, 519, 593. 
 
 Brubaker V. Paul, 130, 211. 
 
 Bruce v. Priest, 244, 245. 
 
 Bruce v. Thompson, 451. 
 
 Bruch V. Carter, 17, 3S3. 
 
 Bruhl V. Parker, 390, 517. 
 
 Brunswick v. Slowman, 248. 
 
 Brush T. Blanchard, 508. 
 
 Brush V. Scribner, 92. 
 
 Brushaber v. Stegemann, 265, 343. 
 
 Bryan v. Bates, 209. 
 
 Biyant y. Clutton, 288. 
 
 Bryant v. Ware, 364. 
 
 Buck y. Colbath, 615. 
 
 Buckingham v. Billings, 411, 446. 
 
 Buckland y. Johnson, 601. 
 
 Buckley y. Gross, 291. 
 
 Bucklin v. Beals, 649. 
 
 Bucknam v. Brett, 565. 
 
 Bucknam v. Nash, 639, 643. 
 
 Buddington v. Shearer, 116. 
 
 Buffington v. Gerrish, 402. 
 
 Bulkeley v. Keteltas, 347. 
 
 Bulkly y. Dolbeare, 512, 513. 
 
 Bull y. Colton, 135, 190. 
 
 Bullock y. Bal:)Cock, 41. 
 
 Burchard y. Booth, 258. 
 
 Burdett v. Abbott, 345. 
 
 Burdett v. Coleman, 345. 
 
 Burdick v. Woriall, 19, 205, 603, 604. 
 
 Burdict y. Murray, 548. 
 
 Burgess y. Freelove, 205, 222. 
 
 Bumham y. Holt, 41. 
 
 Burnham y. Spooner, 287. 
 
 Burnham y. Steyens, 320. 
 
 Bums y. Erben, 264, 270, 277, 281, 291^ 
 
 329, 348. 
 Burr y. Woodrow, 617. 
 Burris y. Johnson, 401. 
 Burrows y. Stoddard, 519, 581, 636. 
 Bursley v. Hamilton, 445. 
 Burt y. Powis, 227. 
 Burton v. McClellan, 3, 19. 
 Burton y, Scherpf, 160. 
 Burton y. Sweaney, 607, 610. 
 Burton y. Thompson, 117. 
 Burton y. Wilkinson, 387, 488. 
 Bush y. Parker, 211, 213. 
 Bush y. Steinman, 47. 
 Bushel y. Miller, 10. 
 Butcher y. Butcher. 144. 
 Butler V. Collins, 570. 
 Butler y. Mercei-, 257. 
 Butler y. K Y. & Erie R. R. Co., 37. 
 Butler y. Washburn, 296, 305, 306, 313^ 
 
 315. 
 Butt y. Gould. 241. 
 Butterfield y. Baker, 523. 
 Butterworth y. Soper. 605. 
 Byrnes y. Brewster, 268. 
 
 Cabell y. Vaughan, 79. 
 
 Cable y. Cooper, 308, 431. 
 
 Cadwell y. Fariell, 12. 
 
 Cady y. Barlow, 258. 
 
 Cady y. Fairchild, 117. 
 
 Calder & Hebble Nay. Co. y. Pilling, 
 
 293. 
 Caldw^ell y. Arnold, 406. 
 Caldwell v. Julien, 77. 
 Caldwell y. Murphy, 103, 230, 231. 
 Caldwell y. Sacra, 44. 
 Callaway &c. Co. v. Clark, 647. 
 Calleuder v. Marsh, 76. 
 Cameron y. Lightfoot, 802, 
 Camp y. Chamberlain, 420. 
 Camp y. Moseley, 450. 
 Campbell y. Pheips, 51, 490, 491, 492. 
 Campbell v. Stakes, 586, 587, 604. 
 Campbell y. Woodworth, 646. 
 Canal Co. v. Kiutr, 12. 
 Candee y. Lord, 626. 
 Cane y. Watson, 62. 
 Canfield y. Gaylord, 109. 
 Canning y. Willi^imstown, 249. 
 Cannon y. Burris, 36. 
 Cannon v. Kinney, 513. 
 Cant y. Parsons, 266, 341. 
 Capen y. Peckham, 375. 
 Carle y. Delesderuier, 308. 
 Carlisle y. Weston, 591. 
 Cararick y. Myers, 446, 467, 545. 
 Carpenter y. Crane, 218. 
 Carpenter y. Cummings, 445.
 
 TABLE OF CASES CITED. 
 
 XV 
 
 Carpenter v. Parker, 350. 
 
 Carpenter v. Pierce, 110. 
 
 Carratt v. ]Morley, 393. 
 
 Carrier v. Esbaugh, 465. 
 
 Carson v. Prater, 507. 
 
 Carter v. Johnson, 608. 
 
 Carter v. Jones, 220. 
 
 Carter v. Simpson, 399, 516. 
 
 Case V. Mark, 34. 
 
 Case of The Marshalsea, 429. 
 
 Case V. Shepherd, 58. 
 
 Casher v. Peterson, 528. 
 
 Cassedy v. Hunt, 535. 
 
 Cassin v. Delaney, 40, 89, 279. 
 
 Castle V. Duryea, 127. 
 
 Castner v. Sliker, 235. 
 
 Cate V. Gate, 10, 5G. 
 
 Catlin V. The Springfield Ins. Co., 162. 
 
 Causee v. Anders, 151, 251. 
 
 Cave Y. Cave, 374. 
 
 Caverley v. Jones, 94. 
 
 Cavis V. Robertson, 500. 
 
 Chaddock v. Wilbraham, 326. 
 
 Chaflfee v. Sherman, 519, 520. 
 
 Chamberlain v. Smith, 404. 
 
 Chamberlih v. Greenfield, 76. 
 
 Chamberlin v. Murphy, 72, 73, 100. 
 
 Chamljers v. Porter, 131, 235. 
 
 Chandler v. Thurston, 151. 
 
 Chandler v. Walker, 101. 
 
 Chanet v. Parker, 63. 
 
 Chapman v. Dyett, 391. 
 
 Chapman v. Hatt, 75. 
 
 Chapman v. Snow, 200. 
 
 Chapman v. Wilber, 196. 
 
 Chase v. Eikins, 580. 
 
 Chase v. Hathaway, 78. 
 
 Chase v. Loveiing, 107, 108. 
 
 Chase v. Sparhawk, 497. 
 
 Chatfield v. Wilson, 141. 
 
 Cheasley v. Barnes, 89, 224, 475. 
 
 Cheney v. The B. & M. R R. Co., 167. 
 
 Cheney v. Holgate, 263. 
 
 Chicago &c. R. R. Co. v. Flagg, 251. 
 
 Chicago &c. R. R. Co. v. McCarthy, 162. 
 
 Child V. Allen, 403. 
 
 Child V. Sands, 79. 
 
 Chilton V. Lond. & Croyd. Rail. Co., 293. 
 
 Chinn v. Morris, 281, 314. 
 
 Chivers v. Savage, 392. 
 
 Christie v. Sawyer, 38. 
 
 Christopher v. Covington, 585. 
 
 Ciiristopherson v. Bare, 121. 207. 
 
 Church v. De Wolf, 94. 
 
 Church V. Hubbard, 92.- 
 
 Church V. Mansfield, 45, 49. 
 
 Churchill v. Churchill, 428, 476. 
 
 Churcliill V. Rosebeck, 191. 
 
 Churchill v. Siggers, 286. 
 
 Churchill v. Watson, 104, 619. 
 
 Churchward v. Studdy, 357. 
 
 City Bank v. Bangs. 190. 
 
 Claflin V. Carpenter, 160. 
 
 Clark V. Axford, 504. 
 
 Clark V. Bales, 23, 105. 
 
 Clark V. Bragdon, 299, 500. 
 
 Clark V. Carlton, 513, 547, 551. 
 
 Clark V. Clement, 75. 
 
 Clark V. Foot, 9. 
 
 Clark V. Frv, 24, 67. 
 
 Clark V. Gibson, 584. 
 
 Clark V. Hallock, 406, 498, 506. 
 
 Clark V. Harrington, 85, 598. 
 
 Clark V. Langworthy, 76. 
 
 Clark V. Lathroj), 336. 
 
 Clark V. May, 57. 
 
 Clark V. Newsam, 263, 354. 
 
 Clark V. Norris, 39. 
 
 Clark V. Norton, 495. 
 
 Clark V. Skinner, 381. 
 
 Clark V. Washburn, 641. 
 
 Clay V. Sandefer, 395. 
 
 Clay V. Sweet, 34. 
 
 Clees V. Sikes, 34. 
 
 Cleveland &c. R. R. Co. v. Bartram, 
 
 '105, 248. 
 Cleveland &c. R. R. Co. v. Stackhouse, 
 
 34. 
 Clifton V. Grayson, 271. 
 Cloutman v. Pike, 429, 500. 
 Clow agst. Wright, 289. 
 Cluley V. Lockhart, 518. 
 Coats V. Darby, 25, 294. 
 Cobb V. Buswell, 427, 428. 
 Cobbett V. Grey, 317. 
 Cochran v. Ammon, 247. 
 Cocke V. Jeunor, 69. 
 Cockroft V. Smith, 131. 
 Codman v. Freeman, 513, 535. 
 Codrington v. Lloyd, 391. 
 Cody V. Adams, 272. 
 Coffin v. Coflin, 76, 206, 248. 
 Coffin V. Field, 75,466,585. 
 Cogljurn V. S pence, 440. 
 Cogdell V. Yett, 125, 223. 
 Cohen v. Huskisson, 285. 
 Colby V. Jackson, 1 7, 268, 269, 343. 
 Golden v. Eldred, 75. 
 Cole V. Fisher, 21. 
 Cole V. Green, 13. 
 Cole V. Hindson, 300. 
 Cole V. RadcUfT, 271. 
 Cole V. Turner, 125. 
 Coleman v. N. Y. & New Haven R. R. 
 
 Go , 166, 170. 
 Coleman v. State, 237. 
 Colgrave v. Dias Santos, 374. 
 Collamer v. Drury, 503. 
 Collamer v. Elmore, 272. 
 Collett V. Flinn, 609.
 
 XVI 
 
 TABLE OF CASES CITED. 
 
 Collett y. Keith, 607. 
 
 Collier v. Moulton, 225. 
 
 Collins V. Ferris, 23, 60. 
 
 Collins V. Perkins, 640. 
 
 Collins V. Prentice, 115. 
 
 Collins V. Rcnison, 143. 
 
 Collins V. Todd, 235, 238. 
 
 Collins V. Wagcfoner, 394. 
 
 Colt V. Eves, 78, 93. 
 
 Colter V Lower, 265, 329. 
 
 Coltraine v. McCain, 391. 
 
 Cohvill V. Reeves, 455, 554. 
 
 Com. V. Bliss, 258. 
 
 Com. V. Clark, 129. 
 
 Com. V. Cornish, 15. 
 
 Com. V. Dougherty, 160. 
 
 Com. V. Elliott, 258. 
 
 Com. V. Field, 302. 
 
 Ccmi. V. Ford, 131. 
 
 Com. V. Foster, 297. 
 
 Com. V. Henry, 61. 
 
 Com. V. Hurley, 194. 
 
 Com. V. Kennard, 139, 308, 399. 
 
 Com. V. Lakeman, 151. 
 
 Com. V. Powers, 167, 170, 178. 
 
 Com. V. Presby, 151. 
 
 Com. V. RMudall, 151,185. 
 
 Com. V. Rigney, 151. 
 
 Com. V. Ruggles, 121, 124. 
 
 Com. V. Sessions, 248. 
 
 Com. V. Snelling, 17. 
 
 Com. V. Thompson, 189. 
 
 Com. V. Tobin, 2&2. 
 
 Com. V. York, 253. 
 
 Comfort V. Fulton, 323. 
 
 Compere v. Hicks, 111. 
 
 Conard v. Pacific Ins. Co., 34. 
 
 Conderman v. Smith, 542. 
 
 Conkey v. Amis, 399. 
 
 Conklin v. Thompson, 587. 
 
 Connah v. Hale, 381, 462. 
 
 Conner v. Coffin, 374, 376, 377. 
 
 Conrad v The Village of Ithaca, 52. 
 
 Consequa v. Willings, 92. 
 
 Cook v. Darby, 32. 
 
 Cook V. Ellis, 257. 
 
 Cook V. Garza, 91. 
 
 Cook V. Hopper, 393. 
 
 Cook V. Miller, 608, 626. 
 
 Coolidge V. Choate, 413, 637. 
 
 Coon V. Brook, 190. 
 
 Cooper V. Adams, 300. 
 
 Cooper V. Chitty, 399, 507. 
 
 Cooper V. Harding, 304, 392. 
 
 Cooper V. Maupin. 110. 
 
 Cooper T. McJunkin, 183. 
 
 Copley V. Rose, 421. 
 
 Corey v. The People, 135. 
 
 Corfield v. Coryell, 554. 
 
 Cornell v. Barnes, 432, 433. 
 
 Corning v. Corning, 238. 
 
 Cornish v. Marks, 39. 
 
 Corwin v. Walton, 233, 257. 
 
 Cotsworth V. Betison, 404. 
 
 Cottingham v. The State, 81. 
 
 Coty v. Barnes, 538. 
 
 Countess of Rutland's Case, 303. 
 
 Coupal V. Ward, 265. 
 
 Courser v. Powers, 320. 
 
 Courtov V. Dozier, 314. 
 
 Coventry v. Barton, 28, 29. 
 
 Covin V. Hill, 368. 
 
 Coward v. Baddelley, 125. 
 
 Cowell V. Lane, 525. 
 
 Cowels V. Kidder, 12. 
 
 Cowing V. Snow, 548. 
 
 Cowles V. Dunbar, 291. 
 
 Cox V. Burbridge, 34. 
 
 Cox V. Hall, 385. 
 
 Cox V. Vanderkleed, 348. 
 
 Coxe V. Whitney, 238. 
 
 Craig V. Gilbreth, 557. 
 
 Cram v. Bailey, 545, 546. 
 
 Crandall v. James, 496. 
 
 Crane v. Hummerstone, 106. 
 
 Crane v. London Dock Co., 568. 
 
 Crane v. Sayre, 91. 
 
 Oravath v. JPlympton, 533. 
 
 Crawford v. AJ orris, 105, 107. 
 
 Crawford v. Satchwell, 300. 
 
 Creed agst. Hartmann, 396. 
 
 Crenshaw v. Moore, 513. 
 
 Creps V. Dunham, 515. 
 
 Cressonv. Stout, 373, 374. 
 
 Crocker v. New Lond. &c. R. R. Co., 104, 
 
 176, 177. 
 Crocker v. Spencer, 446. 
 Crockett v Lattimer, 440. 
 Crofoot V. Bennett, 366, 512. 
 Croft V. Alison, 43, 50. 
 Crookes v. Fry, 39. 
 Crookshank v. Kellogg, 101. 
 Cross v. Johnson, 88. 
 Cross v. Phelps, 625. 
 Crossman v. Bradley, 343. 
 Crossman v. Harrison, 255. 
 Crouch V. Gridley, 34. 
 Cruikshank v. Gardner, 42. 
 Crvgier v. Long, 200. 
 Culling v. Tuifnai, 374. 
 Cummins v. Noyes, 586. 
 Cunningham v. Dyer, 114. 
 Cunningham v. Pitzer, 25, 630, 
 Curl V. Lowell, 81. 
 Curry v. Com. I s. Co., 378. 
 Curry v. Pringle, 375, 877. 
 Curtis V. Carr<on, 129. 
 Curtis V. Fay, 490. 
 Curtis V. Groat, 362. 
 Curtis V. Ward, 639.
 
 TABLE or CASES CITED. 
 
 XVll 
 
 Curtiss V. Hoyt, 378. 
 Gushing v. LoQgfellows, 618. 
 Cushman v Churchill, 610. 
 Cushman v. Ryan, 286. 
 Cystead v. Shed, 81. 
 
 Dailey v. Crowley, 640. 
 Dailey v. Grimes, 561. 
 Dailey v. May, 411. 
 Dains v. Prosser, 409. 
 Dale Manf. Co. v. Grant, 3. 
 Dale V. Radcliffe, 327. 
 Dale V. Wood, 216, 236. 
 Dallam v. Fitler, 518. 
 Dameron v. Williams, 390. 
 Damon v. Bryant, 626. 
 Dcmron v. Roach, 103. 
 Dane v. Gilniore. 589, 603. 
 Daniels v. Pond, 377. 
 Darbv v. Smith, 90. 
 Darling v. Bowen, 288, 289. 
 Davies v. Jenkins, 309. 
 Davies v. Mann, 597. 
 Davies v. Marshall, 14. 
 Davis V. Bush, 804, 336. 
 Davis V. Caswell, 99. 
 Davis V. Clements, 630. 
 Davis V. Cooper, 589, 614. 
 Davis V. Danks, 518. 
 Davis V. Davis, 607. 
 Davis V. Hastings, 261. 
 Davis V. Hooper, 6u8. 
 Davis V. Jones, 370. 
 Davis V. Mason, 90. 
 Davis V. ^lerrill, 269. 
 Davis V. Newkirk, 397. 
 Davis V. Russell, 270,291. 
 Davis V. S mnders, 3. 
 Davis V. Young, 614. 
 Day V. Bisbitch, 374. 
 Day V. Perkins, 374. 
 Day V. Porter, 62, 312. 
 Day V. Woodworrh, 252. 
 Deane v. Blackwell, 252. 
 Deane v. Clayton, 144, 145. 
 Dean v. Hogg, 164. 
 Dean v. Horton, 238. 
 Dean v. Newhall, 74. 
 Decker agst. Gardiner, 109. 
 Deezell v. Od^ll, 366. 
 De Gondouin v. Lewis, 241, 48i 
 Delano v. Thurnell, 535. 
 Demick v. Chapman, 507, 608. 
 Denby v. Haviston, 646. 
 Denison v. Hvde, 036, 643. 
 Dennis v. Snell, 439. 
 Dennison v. Plumb, 463. 
 Denny v. Warren, 419. 
 Denny v. Willard, 444. 
 Vol. L— B 
 
 Despatch Line of Packets v. Bellamy 
 
 Manf. Co. 384. 
 Devaynes v. Boys, 83. 
 Devin v. Devin, 452. 
 Devine v. Rand, 104, 229. 
 Devlin v. Stone, 447. 
 Dewey v. Thrall, 579. 
 Dewitt V. Buchanan, 196, 197. 
 Dews V. Riley, 8. 
 Dexter v. Cole, 14. 
 Deyo V. Jennison, 389, 446. 
 Dibble v. Morris, 102, 104, 233, 644. 
 Dick V. Cooper, 445. 
 Dickerman v. Abrahams, 190. 
 Dickey v. McDonnell, 125. 
 Dickinson v. Boyle, 22, 78, 103. 
 Dillingham v. Snow, 498. 
 Dimes v. Petley, 598. 
 Dixon V. Watkins, 626. 
 Doane v. Eddy, 426. 
 Dobree v. Napier, 196, 486." 
 Dodge V. Way, 419. 
 Doggett V. Cook, 325. 
 Dolan V. Buzzell, 381. 
 Dolan V. Pagan. 239. 
 Dole V. Erskme, 101, 134, 217, 240. 
 Donaghe v. Roudeboush, 588, 592. 
 Donnellv v. Harris, 286. 
 Doolittle V. Linsley, 67. 
 Dorcey v. Patterson, 513. 
 Dorman v. Long, 81. 
 Dorrell v. Johnson, 96. 
 Doswell v. Irapey, 8. 
 Doty V. Gorham, 378. 
 Dougherty v Dorsev, 96. 
 Dow V. Smith, 309, 446, 476. 
 Downing v. Butcher, 350. 
 Downing v. Roberts, 503. 
 Downs V. N. Y. &c. R. R. Co. 167. 
 Drake v. Barrymore, 96, 606. 
 Drake v. Beckham, 509. 
 Draper v. Arnold, 492. 
 Drew V. Davis, 495. 
 Drummond v. Humphreys, 29. 
 Drury v. Defontaine, 584. 
 Duberley v. Gunning, 118. 
 Dubois V. Beaver, 92. 
 Dudley v. Ward, 374. 
 Duffv. Lyon, 91. 
 Duke of Brunswick v. King of Hanover. 
 
 196. 
 Dumont v. Smith, 408, 642. 
 Duncan v. Spear, 614. 
 Duncan v. Stale up, 104. 
 Duncan v. Thwaites, 253. 
 Dunham v. Lee, 404. 
 Dunston v. Peterson, 292, 309. 
 Durand v. HoUins, 9, 25. 
 Durgin v. Leighton, 109. 
 Dustin V. Covvdry, 401.
 
 XVlll 
 
 TABLE OF CASES CITED. 
 
 Dutcber v. Hinder, 310. 
 
 Dye V. Leathcrdall, 216, GIO, 613. 
 
 Dyer v. Cady, 543. 
 
 Dyer v. Smith. 93, 324. 
 
 Dygert v. Bradley, 4, 6. 
 
 Eames v. Johnson, 500. 
 
 Eanes v. The State, 291. 
 
 Earing v. Lansingh, 603. 
 
 Earl V. Camp, 431, 433, 528, 530. 
 
 Earl of Mauchester v. Vale, 83. 
 
 Earle v. Hall. 46. 
 
 Earle v. Holderness, 406. 
 
 Eastern R E. Co v. Broom, 102. 
 
 Eastman v. Curtis, 476. 
 
 Eastman v. Grant, 72, 73, 74. 
 
 Eastman v. Wright, 94. 
 
 Eaton V. Cooper, 472. 
 
 Eaton V. Ljmde, 359. 
 
 Eddie v. Davidson, 459. 
 
 Eddy V. Howard, 63. 
 
 Edgell V. Francis, 281, 343. 
 
 Edmondson v. Machell, 256. 
 
 Edwards v. Reach, 643. 
 
 Edwards v. Edwards, 525. 
 
 Edwards v. Ferris, 323. 
 
 Edwards v. Harben, 581. 
 
 Egginton's Case, 295 
 
 Elder v. Bemis, 42, 75, 76. 
 
 Elder v. Morrison, 25, 138. 
 
 Eliot V. Allen, l(i5, 118. 
 
 Elliot V. Kilburn, 217. 
 
 Elliott V. Brown, 129, 131, 133, 134, 260, 
 
 Eiliott V. Peirsol, 115. 
 
 Ellis V. Bitzer, 69. 
 
 Ellis V. Howard, 396, 631, 636. 
 
 Ellis V. Messervde, 631. 
 
 Ellis V. Short, 244. 
 
 Elwes V. I\law, 374. 
 
 Ely V. Ehle, 368, 381, 568, 570. 
 
 Ely V. Schumacher, 638. 
 
 Emanuel v. Cucke, 632. 
 
 Embrey v. Owen, 12. 
 
 Emerson v. Hyde, 580. 
 
 Emery v. Fowler, 97, 99. 
 
 Engle V. Jones, 637. 
 
 English V. Purser, 205, 221. 
 
 Eiisman v. Waters, 381. 
 
 Erwin v. Smaller, 190. 
 
 Esty V. Wilmot, 116, ir,2, 216. 
 
 Etchberry v. Levielle, 253, 255. 
 
 Evans v. Munkley, 607. 
 
 Everett v. Herriu, 472. 
 
 Everts v. Everts, 237. 
 
 Evertson v. Sutlon, 56. 
 
 Ewart V. Jones, 307. 
 
 E wings V. Walker, 597. 
 
 Fabrigas v. Mostyn, 117. 
 Factory v. McConihe, 505. 
 
 Falconer v. Freeman, 573. 
 
 Fales V. Stone, 261. 
 
 Farebrother v. Ansley, 67. 
 
 Fanner v. Hunt, 381. 
 
 Farmer's Loan and Trust Co. v. Hen- 
 
 drickson, 414, 415. 
 Farr v. Newman, 534. 
 Farrant v. Thompson, 373. 
 Farrel v. Colwell, 461, 638. 
 Farrell v. Calkins, 116. 
 Farrell v. Hildreth, 535. 
 Farrington v. Payne, 588, 600. 
 Farver v. State, 122. 
 Fai-well v. Warren, 251. 
 Fay V. O'Neill, 278. 
 Fellows V. Goodman, 352. 
 Feltham v. Cartwright, 111. 
 Felton V. Fuller, 6:^7, 639. 
 Fennell v. Ridler, .584. 
 Fennings v. Grenville, 564. 
 Fenwick v. Laycock, 534. 
 Ferguson v. Earl of Kinnoul, 8. 
 Ferguson v. Terry, 23. 
 Ferrers v. Arden, 98. 
 Ferrin v. Symonds, 475, 478. 
 Fetter v. Be:de, 97, 102, 249, 600. 
 Fields V. Law, 85. 
 Fiero v, lietts, 450, 459, 567. 
 Fiiliter v. Phippard, 9. 
 Finch V. Duddin, 39. 
 Findon v. Parker, 38. 
 Fink V. Albany &e. R. R. Co., 168. 
 Fink V. Hawks, 112. 
 Fisher v. Bridges, 217. 
 Fisher v. Clark, 10. 
 Fisher v. Cobb, 445. 
 Fisher v. Fellows, 268. 
 Fi-her v. Magnav, 336. 
 Fiske V. Small, 579, 621. 
 Fitch V. Rogers, 418. 
 Fitts V. Hall, 41. 
 Fitzherbert v. Shaw, 374. 
 Fitzpatrick v. Kellv, 302. 
 Flaggv. Willington, 621. 
 Flanagan v. Tin«i, 39, 202. 
 Flanagan v. Wood, 515, 574. 
 Flanders v. Cross, 499. 
 Fleet v. HoUeukemp, 252. 
 Fletcher v. Baxter, 309, 
 Fletcher v. Cole, 529. 
 Fletcher v. Peck, 19. 
 Flinn v. Anders, 205. 
 Flint v. Whitney, 306. 
 Folger v. Fields. 108, 593. 
 Folger V. Hinckley, 465. 
 Fonda v. Van Home, 568. 
 Foot v. New Haven & Northampton 
 
 Co., 161. 
 Foote v. Cincinnati, 52. 
 Foote V. Nichols, 251.
 
 TABLE OF CASES CITED. 
 
 XIX 
 
 Forbes v. Shattuck, 377, 56a, 5C4. 
 
 Ford V. Cobb, 369, 374. 
 
 Ford V. Jones, 235, 243. 
 
 Ford V. Monroe, 78. 
 
 Ford agst. Williams, 397. 
 
 Forde v. Skinner, 125. 
 
 Fornian v. Dawes. 615. 
 
 Fort V. Brown, 230. 
 
 Foss V. Stewart, 446. 
 
 Foster v. Hall, 631. 
 
 Foster v. Perkins, 535. 
 
 Foster v. Pettibone, 437. 
 
 Foster v. "Wiley, 441. 
 
 Fouldes V. Willoughby, 34. 
 
 Fox agst. Abel, 395. 
 
 Fox V. Hanbury, 459. 
 
 Fox V. Jackson, 23, 93. 
 
 Fox V. Northern Liberties, 368. 
 
 Fox V. Smith, 112. 
 
 Fox V. Wood, 433. 
 
 Foxhall V. Barnett, 353. 
 
 Francis v. Leach, 194. 
 
 Francisco v. State, 315. 
 
 Frantz v. Lenhart, 194. 
 
 Franz v. Hilterbnind, 637. 
 
 Fraser v. Berkeley, 337. 
 
 Frean v. Cruikshanks, 76. 
 
 Freeman v. Blewitt, 475. 
 
 Freeman v. Rankins, 513. 
 
 Freeman v. Rosher, 51. 
 
 Freethv v. Freethy, 453. 
 
 French v. Marstin, 17, 82, 311. 
 
 French v. White, 389. 
 
 Frisbee v. Langworthy, 463. 
 
 Frost V. Mott, 446. 
 
 Frost V. Shaw, 446. 
 
 Frost v. Thomas, 193. 
 
 Frothingham v. McKusick, 543. 
 
 Fry V. Caufield, 416, 446. 
 
 Fryatt v. Sullivan Co. 369. 
 
 Frye v. Hinklev, 69. 
 
 Fullam V. Stearns, 103, 465, 586. 
 
 Fuller V. Bean, 596. 
 
 Fuller V. Bowker, 353. 
 
 Fuller V. Chamberlin, 106. 
 
 Fuller V. Gould, 184. 
 
 Fuller V. Paige, 363. 
 
 Fuller V. Rounceville, 83, 605. 
 
 Ful on V. Staats, 193. 
 
 Furlong v. Bartlett, 385. 
 
 Gaffield v. Hapgood, 374. 
 
 Gage V. Currier, 494. 
 
 Gage V. Dauchy, 453. 
 
 Gahan v. Lafitte, 8. 
 
 Gaither v. Blowers, 317, 335. 
 
 Gale V. Daliymple, 218, 233. 
 
 Gale V. Ward, 373. 
 
 Galiiraore v. Ammerman, 339, 331. 
 
 Gallup V. Josselyn, 557. 
 
 Galvin v. Bacon, 569. 
 Gambling v. Prince, 518. 
 Games v. Robb, 611. 
 Gardner v. Adams, 37. 
 Gardner v. Campbell, 383, 475, 478. 
 Gardner v. Field, 108, 646. 
 Gardner v. Thomas, 199. 
 Garner v. Willis, 443. 
 Garrett v. Gwathmey, 613. 
 Garrity v. Haynes, 455. 
 Garvin v. Blocker, 335. 
 Gaskell v. Marshall, 534. 
 Gates V. Gates, 475. 
 Gates V. Lounsbury, 17, 139, 135. 
 Gates V. Miles, 3, 5, 7. 
 Gauche v. Mayer, 520. 
 Gauntlett v. King, 66. 
 Gay V. Smith, 116, 547, 553. 
 Gaylard v. Morris, 141. 
 Gearheart v. Smalhvood, 113. 
 Gelhaar v. Ross, 5 !r5, 636. 
 Gelston v. Hoyt, 115, 616. 
 Genner v. SpMrks, 314. 
 Gennings v. Fundeburg, 5. 
 Gibbon v. Pepper, 3, 126, 208. 
 Gibbs V. Chase, 3-32, 383, 462, 539. 
 Gibson v. Chillicothe Bank, 550. 
 Gibson v. Jenney, 446. 
 Gilbert v. Bartenshaw, 118. 
 Gilbert v. Dickerson, 563. 
 Gilbertson v. Richardson, 20. 
 Gilding v. Eyre, 2S6. 
 Gile V. Devens, 435. 
 Giles V. Simonds, 160. 
 Gillard v. Brittan, 4u6, 636. 
 Gillen v. Wilson, 114. 
 Gillerson v. Small, 111. 
 Gillet V. Mason, 358. 
 Gillett V. Ball, 557. 
 Gillett V. Thiebold, 325. 
 Gillis V. Pennsylv. R. R. Co., 5, 144, 178. 
 Gilman v. Emery, 595. 
 Gilman v. Hill, 456. 
 Gilman v. Sanborn, 385. 
 Gilmore v. Holt, 465. 
 Gilmore v. Wilbur, 586. 
 Gilpatrick v. Hunter, 63, 69. 
 Gilson V. Fisk, 58'). 
 Gilson V. Wood, 548. 
 Ginsberg v. Pohl, 510. 
 Gisborne v. Wyatt, 89, 6i2, 
 Gladwell v. Steggall, 248. 
 Glass Co. V. Wolcott, 586. 
 Glazer v. Clift, 608. 
 Gleason v. Edmunds, 83. 
 Glen V. Hodges, 196. 
 Glever v. Hynde, 308. 
 Glover v. Horton, 390. 
 Glover v. London & South Western R. 
 R. Co., 166.
 
 XX 
 
 TABLE OF CASES CITED. 
 
 Glover v. Whittenliall, 424. 
 
 G'.j'nn V. Houston, 273. 
 
 Gock V. Keneda, 5G5. 
 
 Goddard v Bolster, 363. 
 
 Goddard v. Grand Trunk R. R. 43. 
 
 Goets V. Ambs, 231. 
 
 GoflFv. Gt. North. R. R. Co., 163. 
 
 Goff V. Kilts, 358. 
 
 Goldsmith v. Stetson, 368. 
 
 Goodman v. Taylor, 3. 
 
 Goodrich v. Church, 445, 
 
 Goodrich v. Jones, 377, 586. 
 
 Goodrich v. Yale, 99. 
 
 Goodwin v. Avery, 136. 
 
 Goodwin v. Harrison, 331. 
 
 Gordon v. Clifford, 319. 
 
 Gordon v. Harper, 373, 513, 513. 
 
 Gordon v. Robinson, 54. 
 
 Gordon v. Rolt, 587. 
 
 Gordon v, Upham, 349. 
 
 Gore V. ChadAvick, 347, 359. 
 
 Gorrill v. Whittier, 116. 
 
 Gorton v. Falkner, 411. 
 
 Gorton v. Frizzell, 303. 
 
 Gosden v. Elfick, 383. 
 
 Goss Y. Emerson, 557. 
 
 Gould V. GoiJd, 296. 
 
 Goulet V. Asseler, 544. 
 
 Goupil V. Simouson, 287. 
 
 Graham v. McCreary, 575. 
 
 Granger v. Hill, 387, 313. 
 
 Grant v. Moser, 268, 384, 385, 393, 334. 
 
 Gray v. Ayi'es, 143. 
 
 Gray v. Waterman, 643. 
 
 Gray v. Young, 331. 
 
 Great Falls Co. v. Worster, 316, 613. 
 
 Green v. Bartram, 385. 
 
 Green v. Bedell, 330, 333. 
 
 Green v. Burke, 430. 
 
 Green v. Craig, 351. 
 
 Green v. Goddard, 140. 
 
 Green v. Kennedy, 394. 
 
 Green v. Morse, 309. 
 
 Greenfield Bank v. Leavitt. 639. 
 
 Greenwood v. Seymour, 163. 
 
 Greer v. Emerson, 43. 
 
 Gregg V. Wyman, 10. 
 
 Gregory v. Cotterell, 248. 
 
 Gregory v. Hill, 129, 135, 151, 210, 401. 
 
 Gregory v. Piper, 7. 
 
 Griffin v. Coleman, 124, 311, 316. 
 
 Griffith V. Wifliams, 87. 
 
 Griffiths V. Dimnett, 315. 
 
 Grinham v. Willey, 383. 
 
 Grinnell v. Cook, 552. 
 
 Grinnell v. Phillips, 51, 490. 
 
 Grinnell v. Stewart, 350. 
 
 Grisl>y v. Moffat, 233. 
 
 Griswold v. Sedgwick, 399. 
 
 Grumon v. Raymond, 59, 373, 299, 433. 
 
 Guernsey v. Morse, 338. 
 Guille V. Swan, 16, 63. 
 Gundry v. Feltham, 216. 
 Guy V. Livesey, 180. 
 Gyfford v. Woodgale, 819, 627. 
 Gyre v. Culver, 137. 
 
 Habberton v. Wakefield, 626. 
 
 Hadesden v. Gryssel, 356. 
 
 Hager v. Danforth, 154. 
 
 Haggerty v. Wilber, 420. 
 
 Hahn v.'Ritter, 85. 
 
 Hair v. Little, 105. 
 
 Hale V. Huntlev, 410, 476. 
 
 Haley v. Caller' 613. 
 
 Hall V. Booth, 270, 291. 
 
 Hall V. Davis, 336. 
 
 Hall V. Feamley, 83, 207. • 
 
 Hall V. Howd, 23, 300, 331. 
 
 Hall V. Parsons, 580. 
 
 Hall V. Pickard, 551. 
 
 Hall V. Planner, 368. 
 
 Hall V. Power, 178. 
 
 Hall V. Ray, 465, 645. 
 
 Hall V. Robinson, 37. 
 
 Hall V. Roijers, 339. 
 
 Hall V. Strvker, 573, 636. 
 
 Hallett V. Byrt, 437. 
 
 Hallett V. Novion, 198, 486. 
 
 Halsey v. Woodruff, 106, 114. 
 
 Hambly v. Trott, 533. 
 
 Hamilton v. Fulton, 63. 
 
 Hamilton v. Goding, 597. 
 
 Hamilton v. Hunt, 14. 
 
 Hamilton v. Rogers, 541. 
 
 Hamilton v. Russell, 581. 
 
 Hamilton v. Williams, 438. 
 
 Hammatt v. Russ, 77. 
 
 Hammer v. Pierce, 181. 
 
 Hammond v. Howell, 8. 
 
 Hammond v. Plimpton, 509. 
 
 Handcock v. Baker, 368. 
 
 Handy v. Johnson, 17, 133. 
 
 Hanks v. Deal, 41. 
 
 Hanly v. Levin, 110. 
 
 Hannier v. Wilsey, 401, 406, 408, 513, 
 
 545, 635, 636. 
 Hanna v. Steinberger, 449. 
 Hanuaford v. Hunn, 198. 
 Hannen v. Edes, 317, 320. 
 Hanuon y. The State, 541. 
 Hardage v. Cofi'nian, 25. 
 Hardcastle v. South Yorkshire &c. R. 
 
 R. Co., 144. 
 Hardenburgh v. Crary, 227. 
 Hardin v. Kennedy, 34. 
 Hardy v. Clendening, 383. 
 Harris v. Butterly, 94. 
 Harris v. Dignum, 383. 
 Harris v. Nicholas, 50.
 
 TABLE OF CASES CITED. 
 
 XXI 
 
 Harris V. Stevens, 170, 178. 
 
 Harrison v. Bulcock, 503. 
 
 Harrison v. Davis, 507, 607. 
 
 Harrison v. Dixon, 608, 609. 
 
 Harrison v. Mitcliell, 393. 
 
 Harrison v. Nichols, 426. 
 
 Harry v. Graham, 33. 
 
 Hart V. Fitzerald, 607. 
 
 Hart V. Hyde, 417, 446, 462, 518. 
 
 Hart V. Skinner, 649. 
 
 Hart V. Ten Eyck, 363. 
 
 Hartley v. Moxham, 383. 
 
 Harvey v. Sides &c. Co., 647. 
 
 Hasbrouck v. Lounsbuiy, 555. 
 
 Hasbrouck v. Vanclervoort, 190. 
 
 Haskell v. Sumner, 302, 428. 
 
 Haskill V. Andros, 425, 446. 
 
 Hathaway v.- Goodrich. 319, 627, 630. 
 
 Hathaway v. Rice, 133, 184, 211, 213, 
 
 214. 
 Havens v. Hartford & New Haven R. 
 
 R. Co., 204. 
 Hawes v. Dingley, 621. 
 Hawk V. Haman, 39. 
 Hawk V. Ridgway, 104. 
 Hawkins v. Hatton, 62. 
 Hawkins v. Johnson, 301. 
 Hawks V. Charlemont, 42. 
 Hawley v. Butler, 290. 
 Hay V. Kitchen, 209. 
 Hayden v. Shed, 277, 391, 435. 
 Hay ward Rubber Co. v. Duncklee, 518, 
 
 519 
 Hazel V. Clark, 235. 
 Head v. Briscoe, 38, 39. 
 Heady V. Wood, 130. 
 Heald v. Sargeant, 458. 
 Heath v. Milward, 608. 
 Heath v. M'Inroy, 648. 
 Heath v. West, 51*3, 540, 547. 
 Heermance v. Vernoy, 378. 
 Heitzman v. Divil, 644. 
 Hemdon v. Bartlett, 562. 
 Heminway v. Saxtou, 205. 
 Henderson v. Brown, 502. 
 Henderson v. Syles, 102. 
 Hendricks v. Decker, 508. 
 Henly v. Broad, 61, 62. 
 Henry v. Lowell, 344. 
 Henry v. Sargeant, 496, 497, 504. 
 Henry v. Sennett, 107. 
 Henry v. Tilson, 317, 319. 
 Plerring v. Hoppock, 555. 
 Herring v. Hudson. 9. 
 Hess V. Johnson, 25. 
 Hewett V. Swift, 165, 180. 
 Hewlins v. Shippam, 160. 
 Heydon v. Heydon, 423, 459. 
 Heydon's Case, 106, 107. 
 Heyer v. Burger, 56. 
 
 Heywood v. CoUinge, 287. 
 
 Hibbard v. N. Y. & Erie R. R. Co., 165. 
 
 Hibbard v. Stewart, 366. 
 
 Hickey v. Huse, 289, 290. 
 
 Hickok V. Coates, 443, 592. 
 
 Hickok V. Trustees of the Village of 
 
 Plattsburgh, 52. 
 Hicks V. Dorn, 483. 
 Hlgby V. Williams, 83, 93. 
 Higginbotham v. State. 122. 
 Higgins V. Hayward, 588. 
 Higgins V. Watervliet T. Co., 162. 
 Higgins V. Whitney, 401, 633, 636. 
 Higginson v. York, 15. 
 High V. Wilson, 439, 626. 
 Hill V. Bateman, 305. 
 Hill V. Davis, 586. 
 Hill V. Goodchild, 105, 107. 
 Hill V. Goodrich, 287. 
 Hill V. Morey, 47, 81. 
 Hill V. Rogers, 133. 
 Hill V. Yates, 347. 
 Hilliard v. Goold, 142, 175, 176. 
 Hillman v. Baumbach, 618. 
 Hiscox V. Greenwood, 358. 
 Hitchcock & Thurland's Case, 63. 
 Hitchen v. Teale, 94. 
 Hite V. Long, 591. 
 Hoar V. Clute, 96. 
 Hobart v. Hagget, 15. 
 Hobbs V. Brauscomb, 270, 291. 
 Hockless V. Mitchell, 631. 
 Hodgdon v. Waldron, 561. 
 Hodgeden v. Hubbard, 131, 401. 
 Hodges V. Nance, 240. 
 Hodgson V. Sidney, 509. 
 Hodsoll V. Stallebrass, 358. 
 Hogg V. Ward, 292. 
 Hogue V. Penn, 26. 
 Holbrook v. Pratt, 76. 
 Holbrook v. Wight. 78. 
 Holley V. Mix, 106, 270. 
 Hollister v. Goodale, 418. 
 Holloway v. Turner, 352, 644. 
 Holly V. "Brown, 77, 542. 
 Holly V. Huggeford, 514, 526, 527, 560. 
 Holmes v. Bagge, 213, 226. 
 Holmes v. Doane, 383. 
 Holmes v. Hodgson, 588. 
 Holmes v. Moore, 533. 
 Holmes v. Tremper, 374. 
 Holroyd v. Lancaster, 344. 
 Holro'yd v. Marshall, 541. 
 Holt V. Johnson, 366. 
 Holt V. Wilkes, 146. 
 Holtum V. Lotum, 330. 
 Holyoke v. Grand Trunk R. R., 248. 
 Homer v. Battyn, 314. 
 Hooker v. Smith, 129, 311. 
 Hooksett v. Amoskeag Manf Co. 31.
 
 XXll 
 
 TABLE OF CASES CITED. 
 
 Hooper v. Haskell, 251. 
 
 Hooper v. Lane, 295. 435. 
 
 Hoose V. Sherill, 56, 321. 
 
 Hopkins v. Atlantic & St. Lawrence R. 
 
 R. Co., 252. 
 Hopkins v. Ciowc, 2S3. 
 Hopkins v. Hopkins, 478,479. 
 Hopper V. Reeve, 125, 206. 592. 
 Hopple V. Higbee, 634, 637. 
 Horn V. Baker, 370. 
 Homer v. Battyn, 312. 
 Horton v. Auchmcody, 61. 
 Horton v. Hendershot, 432. 
 Horton v. Hensley, 23. 
 Hotchkiss V. McVickar, 423. 
 Houghton V. Bacbman, 484, 485. 
 Houlden v. Smith, 60. 
 Hounsell v. Smyth, 146. 
 Housatonic & Lee Banks v. Martin, 483. 
 Houston V. Howard, 576. 
 Howard v. Newton, 93. 
 Howard v. Peete, 206, 592. 
 Howard v. Williams, 446. 
 Howe V. Buffalo, N. Y. & E. R. R. Co., 
 
 29. 
 Howe V. Farrar, 517, 614. 
 Howe V. Keeler, 512, 548. 
 Howe V. Newmarch, 42. 
 Howe V. Reed, 621. 
 Howe V. Wilson, 91. 
 Howell V. City of Buffalo, 52. 
 Howell V. Jackson, 156. 
 Howell V. Ransom, 631. 
 Hoye V. Bush, 299. 
 Hoyt V. Chapin, 547. 
 Hoyt V. Gelston, 104, 507, 615, 648. 
 Hoyt V. Remick, 544. 
 Hoyt V. Van Alstjne, 446, 614. 
 Hubbard v. Hunt, 397, 398. 
 Hubbell V. Wheeler, 180. 
 Hubbert v. Collier, 77, 84. 
 Huckins v. City of Boston, 499. 
 Huckle V. Money, 117. 
 Hudson V. Howard, 283. 
 Hudson V. Warner, 541. 
 Huffer V. Allen, 286. 
 Huggins V. Toler, 271. 
 Hull V. Carnlev, 482, 544. 
 Hull V. Pickersgill. 27. 
 Hume V. Oldacre, 16. 
 Hume V. Tufts, 513. 
 Humphrey v. Douglass, 41. 
 Humphrey v. Mitchell, 295. 
 Humphries v. Johnson, 105. 
 Hunt V. Ballew, 441. 
 Hunt V. Bates, 601. 
 Hunt V. Douglass, 386. 
 Hunt Y. Haskell, G39. 
 Hunt V. Pratt, 33, 510. 
 Hunter v. Harris, 626. 
 
 Hunter v. Hudson River Iron Co., 50.. 
 
 Hunter v. Perry, 567. 
 
 Hunter v. Westbrook, 581. 
 
 Huntley v. Bacon, 104, 252, 539, 647. 
 
 Hurd V. Darling, 526. 
 
 Hurd V. Fleming, 547, 555. 
 
 Hurd V. West, 383, 484. 
 
 Hurlburt v. Green, 506. 
 
 Hurley v. Marsh, 196. 
 
 Hurst V. Gwenap, 569. 
 
 Hutchins v. Adams, 533. 
 
 Hutchinson V. Lord, 509. 
 
 Huxley v. Berg. 246. 
 
 Huzzey v. Field, 44. 
 
 Hyatt V. Adams, 201, 255. 
 
 Hyde v. Cookson, 365. 
 
 Hyde v. Cooper, 477, 394. 
 
 Hyde v. Noble, 569. 
 
 Hyde v. Stone, 563. 
 
 Hynes v. Jungren, 304. 
 
 Illinois &c. R. R. Co. v. Sutton, 169. 
 
 Hott V. Wilkes, 144. 
 
 Ilsley V. Nichols, 389, 
 
 Imason v. Coiie, 142. 
 
 Imlay v. Sage, 514. 
 
 Ingalls V. Sprague, 67. 
 
 Ingle V. Bell, 334. 
 
 Inglee v. Bosworth, 492. 
 
 Innes v. Wylie, 121. 
 
 Ireland v. Elliott, 236. 
 
 Ireland agst. Oswego, Hannibal & Ster- 
 ling Plank-road Co., 5. 
 
 Irish V. Cloyes, 633, 641. 
 
 Isaacs V. Third Ave. R. R. Co., 44, 164^ 
 190. 
 
 Isack V. Clarke, 383. 
 
 Ives V. Humphreys, 104. 
 
 Ivy V. Bamhartt,' 399. 
 
 Jacks V. Bell, 258. 
 
 Jackson v. Second Ave. R. R. Co., 162. 
 
 Jackson v. Wood, 98. 
 
 Jackson's Case, 124. 
 
 Jacobs V. Hoover, 221. 
 
 James v. Campbell, 125. 
 
 James v. Tait, 78. 
 
 Jamieson v. Millemann, 161. 
 
 Janes v. Martin, 399. 
 
 Jarmain v. Harper, 448, 
 
 Jarman v. Hooper, 396. 
 
 Jarratt v. Gwathmey, 477. 
 
 Jarvis v. Manlove, 238, 247. 
 
 Jarvis v. Rogers, 557. 
 
 Jay V. Almy, 104. 
 
 Jean v. Sandiford, 77, 103, 119. 
 
 Jeanes v. Davis, 201. 
 
 Jefferson v. Adams, 257. 
 
 Jelly V. Bradley, 150. 
 
 Jenings v. Florence, 286.
 
 TABLE OP CASES CITED. 
 
 XXlll 
 
 Jenks V. Colemiin, 167. 
 
 Jenner v. Sparks, 312. 
 
 Jennings v. Davis, 452. 
 
 Jewett V. Banning, 228, 235. 
 
 Jewett V, Goodall, 207. 
 
 Johns V. Dodsworth, 106. 
 
 Johnson v. Castleman, 34. 
 
 Johnson v. Dalton, 196. 
 
 Johnson v. Evans, 459. 
 
 Johnson v. Hannahan, 62. 
 
 Johnson v. Maxon, 265. 
 
 Johnson v. McK^e, 221, 231, 241. 
 
 Johnson v. Northwood, 210. 
 
 Johnson v. Packer, 110. 
 
 Johnson v. Parker, 636. 
 
 Johnson v. Patterson, 144. 
 
 Johnson v. PeiTy, 258. 
 
 Johnson v. Stone, 14, 27, 525, 628. 
 
 Johnson v. Sumner, 483, 639. 
 
 Johnson v. Terry, 227. 
 
 Johnson v. Thompson, 63. 
 
 Johnson v. Tompkins, 265. 
 
 Johnson v. Whitefield, 5. 
 
 Johnson v. Vutrick, 94. 
 
 Johnstcm v. Riley, 298. 
 
 Johnston v. Sutton, 265, 328. 
 
 Johnston v. Vanamringe, 300. 
 
 Jones V. Clay, 258. 
 
 Jones V. Hoar, 586. 
 
 Jones V. Lewis, 631. 
 
 Jones V. Lowell, 62, 79. 
 
 Jones V. McNeil, 368, 507, 601. 
 
 Jones v. Morrel, 24. 
 
 Jones V. Price, 200. 
 
 Jones V. Sparrow,- 259. 
 
 Joralimon v. Pierpont, 92. 
 
 Jordan v. Gallup, 475. 
 
 Jordan v. Gillen, 38. 
 
 Jordan v. Wyatt, 7. 
 
 Joslyn V. Tracy, 468. 
 
 Josselyn v. McAllister, 844, 850, 351. 
 
 Judson V. Cook, 23, 390. 
 
 Justice V. Mendell, 567. 
 
 Kaley v. Shed, 633, 635. 
 Karr v. Barstow, 599. 
 Kasson v. The People, 75, 396. 
 Keene v. Dilke, 644. 
 Kelley v. Noves, 504. 
 Kelley v. Taylor, 595. 
 Kellogg V. Schuyler, 34. 
 Kelly V. Breusing, 626. 
 Kelly V. Gilmau, 435. 
 Kelly V. Paris, 627. 
 Kelsey v. Henry, 259. 
 Kempton v. Cook, 107. 
 Kendall v. PoAvers, 58. 
 Kendall v. Stokes, 184. 
 Keniston v. Little, 428, 532. 
 Kennedy v. M'Arthur, 34. 
 
 Kennedy v. Terrill, 57. 
 
 Kennedy v. Waller, 554. 
 
 Kennedy v. Whitwell, 639, 642. 
 
 Kennersley v. Orpe, 98. 
 
 Kent V. Willey, 621, 624. 
 
 Kerbey v. Den by, 645. 
 
 Kerns v. Piper, 50. 
 
 Kerr v. Mouat, 432. 
 
 Kerr v. Mount, 391, 399, 590. 
 
 Kettler v. Johnson, 335. 
 
 Keyes v. Devlin, 131, 236. 
 
 Keyes v. Howe, 523. 
 
 Keyworth v. Hill, 39. 
 
 Kilbourn v. Waterous, 111. 
 
 Kilburn v. Demming, 411, 446. 
 
 Kimball v. Marshall, 543. 
 
 Kimball v Wilson, 94. 
 
 Kine v. Evershed, 282. 
 
 King v. Baker, 518. 
 
 King V. Chase, 98, 491.. 
 
 King V. Chilverscoton, 322, 
 
 King V. Danser, 431. 
 
 King V. Hoare, 601. 
 
 King V. Inhitbs. of Moor Critchell, 322. 
 
 King V. Orser, 438. 
 
 King V. Phillips, 562. 
 
 Kingsbury v. Collins, 218. 
 
 Kingsbury v. Pond, 455. 
 
 Kingsley v. Hall, 305. 
 
 Kinning v. Buchanan, 339. 
 
 Kirkpatrick v. Lockhart, 330. 
 
 Kirwan v. Latour, 374. 
 
 Kitchen v. Campbell, 100. 
 
 Kittredge v. Emerson, 56. 
 
 Kittredge v. Sumner, 525. 
 
 Kittredge v. Woods, 376, 377. 
 
 Klein v. Thompson, 228, 248. 
 
 Kline v. Central &c. R. R., 170. 
 
 Klingman v. Holmes, 257. 
 
 Knickerbacker v. Colver, 63, 107. 
 
 Knight V. Herrin, 465, 473, 636. 
 
 Knight V. Lillo, 114 
 
 Knot V. Barker, 408. 
 
 Knott V. Cunningham. 62. 
 
 Koenig v. Nott, 37, 181. 
 
 Kolb V. Bankhead, 24. 
 
 Koster v. Merritt, 581,582. 
 
 Kountz V. Brown, 252. 
 
 Kowing V. Manly, 38. 
 
 Kreger v. Osborn, 209, 390. 
 
 Kunkle v. State, 401. 
 
 Labar v. Koplin, 113. 
 Lacon v. Barnard, 600. 
 Ladbroke v. Crickett, 431. 
 Ladd V. Blunt, 567. 
 Ladd V. Hill, 458. 
 Ladd V. Thomas, 614. 
 Lair v. Abrams, 207. 
 Lake v. Billers. 439,626.
 
 XXIV 
 
 TABLE OF CASES CITED. 
 
 Lamb v. Day, 481, 640. 
 
 Lamb v. Palk, 4o. 
 
 Lambert v. Hodgson, 339. 
 
 Lambert v. Paulding, 423. 
 
 Lam})Son v. Fletcher, 440. . 
 
 Lancaster v. Lane, 60. 
 
 Lander v. Miles, 347. 
 
 Lander v. Randall, 185. 
 
 Lander v. Seaver, 184, 230, 
 
 Lane v. Gotten, 50. 
 
 Lane v. Hitchcock, 530. 
 
 Lane v. Jackson, 418. 
 
 Lane y. Wilcox, 104, 251, 637. 
 
 Lanfear v. Sumner, 527. 
 
 Langdon v. Bruce, 63. 
 
 Langstaif v. Rain, 39. 
 
 Lansing v. ]\Iontgomery, 82. 
 
 Lansingh v. Parker, 212. 
 
 La Roe v. Roeser, 325. 
 
 Lassell v. Reed, 377. 
 
 Latourette v. Clarke, 196. 
 
 Laughlin v. Eaton, 251. 
 
 Law v. Illinois A:c. R. R. Co. 169. 
 
 Lawrence v. Hedger, 291. 
 
 Lawton v. Law ton, 374. 
 
 Lawton v. Salmon, 374, 379. 
 
 Lay V. Bayless, 617. 
 
 Laj'more v. Hendrix, 105. 
 
 Leach v. Francis, 488, 571. 
 
 Leach v. Kimball, 544. 
 
 Leach v. Wilkinson, 96. 
 
 Leaird v. Davis, 405. 
 
 Leame v. Bray, 19. 
 
 Leavitt v. Holbrook, 410, 446. 
 
 Leavitt v. Metcalf, 416, 446. 
 
 Le Caux v. Eden, 485. 
 
 Ledbetter v. Blassingame, 516. 
 
 Ledwith v. Catchpole, 291. 
 
 Lee V. Atkinson, 404. 
 
 Lee V. Risdon, 373, 374. 
 
 Lee V. The Village of Sandy Hill, 52. 
 
 Lefebre v. Utter, 612. 
 
 Legate v. Potter, 483. 
 
 Leland v. Marsh, 329. 
 
 Leonard v. Stacy, 26. 
 
 Leroux's Case, 116. 
 
 Levy V. Edwards, 292. 
 
 Levy V. Moylan, 301. 
 
 Lewis V. Avery, 300, 326. 
 
 Lewis V. Caraaw, 445, 554. 
 
 Lewis V. Johns, 393. 
 
 Lewis V. Littlefield, 41. 
 
 Lewis V. Lyman, 377, 524. 
 
 Lewis V. Morse, 623. 
 
 Lewis V. Palmer, 57, 382, 430. 
 
 Lewis V. Truesdale, 200. 
 
 Lewis V. Welch, 584. 
 
 Jjcwis V. Whittemore, 456. ' 
 
 Leyfield's Case, 609. 
 
 Libby V. Burnham, 493. 
 
 Libby v. Cushman, 544. 
 
 Liford's Case, 370. 
 
 Limbert v. Fenn, 508. 
 
 Lindo V. Rodney, 485, 486. 
 
 Linford v. Lake, 241. 
 
 Linnen v. Cruger, 368. 
 
 Linsley v. Bushnell, 104, 248, 647. 
 
 Linsley v. Keys, 607. 
 
 Lister v. Wri'ght, 196. 
 
 Little v. Greenleaf, 329, 498. 
 
 Little V. Merrill, 329, 496. 
 
 Little V. N. P. Bank, 296. 
 
 Little V. Tingle, 194. 
 
 Littledale v. Scaith, 357. 
 
 Littlehale v. Dix, 244. 
 
 Lively v. Ballard, 9, 25. 
 
 Livingston v. Bishop, 63, 74, 75, 107, 
 
 109, 601. 
 Livor V. Orser, 544. 
 Lock V. Ashton, 277. 
 Lockwood V. Bull, 528. 
 Lockwood V. Younglove, 417. 
 Lofiand v. Jefl'erson, 304. 
 Loker v. Damon, 103. 
 Long V. Bledsoe, 521. 
 Long V. Chubb, 229. 
 Longendyke v. Longendyke, 189. 
 Longfellow v. Quimby, 639. 
 Look V. Dean, 269. 
 Looker v. Halcomb. 341. 
 Loomis V. Green, 364, 368, 623. 
 Loomis V. Teriy, 149. 
 Lord V. Chadboume, 10, 11, 596. 
 Loring v. Albora, 174, 220. 
 Lotan V. Cross, 520. 
 Lothrop V. Arnold, 447, 459, 565, 607. 
 Loubz V. Hafner, 7. 
 Louder v. Hinson, 252. 
 Lovejoy v. Jones, 397, 556. 
 Lovell V. Bnggs, 621. 
 Lovell V. Sabin, 443. 
 Lovier v. Gilpin, 632. 
 Loweth V. Smith, 88. 
 Lowry v. Walker, 420. 
 Ludden v. Hazen, 580. 
 Luddington v. Peck, 274, 328. 
 Lund V. Tyngsbnrough, 245. 
 Lunn V. Thornton, 541. 
 Lunt V. Brown, 513, 548. 
 Lupton V. White, 363. 
 Luttrell V. Hazen, 47. 
 Lyde v. Russell, 374. 
 Lyford v. Putnam, 586. 
 Lyman v. White River Bridge Co., 52. 
 Lynch v. Murdin, 146. 
 Lynd v. Picket. 446. 
 Lyon V. Rood, 418. 
 Lyon V. Yates, 391. 
 Lythgoe v. Vernon, 585. 
 Lytle V. Lee, 88.
 
 TABLE OF CASES CITED. 
 
 XXV 
 
 Macfadzen v. Olivant, 182. 
 
 Macfarland v. Dean, 318. 
 
 Mack V. Parks, 4.11, 417. 
 
 Mackalley's Case, 303. 
 
 Mackay v. Rinelander, 115. 
 
 Maggiidge v. Eveletli, 513. 
 
 Maher v. Ashmead, 371. 
 
 Main v. McCarty, 310. 
 
 Main v. Northeastern R. R. Co. 53. 
 
 Malcolm v. Spoor, 464, 479, 481. 
 
 Mali V. Lord, 45, 385. 
 
 Mallory v. Bryant, 309. 
 
 Mallory v. Merritt, 33. 
 
 Man V. Shiffner. 557. 
 
 Mandeville v. Guernsey, 370, 371, 396, 
 
 350. 
 Mann v. Locke, 586. 
 Mann v. Marsh, 80. 301. 
 Manning V. Monaghan, 544. 
 Maples V. N. Y. & New Haven R. R. Co., 
 
 168. 
 Marble v. Keyes, 638. 
 Marcy v. Darling, 378, 499. 
 Marker v. Miller, 338. 
 Markham v. Brown, 155. 
 Marsh v. Beriy, 63. 
 Marsh v. Lawrence, 544. 
 Marsh v. Pier, 97. 
 Marsh v. Potter, 190. 
 Marsh v. White, 384, 539, 580. 
 Marsh v. Williams, 336. 
 Marshall v, Davis, 386, 547, 568, 569. 
 Marshall v. Lloyd, 374. 
 Marshall v. Oakes, 39, 
 Martin v. Clark. 84. 
 Martin v. Mansfield, 503. 
 Martin v. Marshall, 59. 
 Martin v. Payne, 181. 
 Martini v. Coles, 554. 
 Martin's Case, 134. 
 Martyn v. Podger, 439, 636. 
 Mason v. Barker, 336, 341, 353. 
 Mason v. Hidden, 538. 
 Mason v. Keeling, 34. 
 Mason v. Waite, 361. 
 Mather v. Hood, 331. 
 Mathews v. Biddulph, 831. 
 Mathews v. Fiestel, 38. 
 Mathews v. Terrv, 186, 338, 240. 
 Matteson v. Curtis, 17. 
 Matteson v. N. Y. Cent. R. R. Co., 348. 
 Mattison v. Baucus, 544. 
 Maund v. Monmouthshire Canal Co., 531. 
 May v. Bliss, 384. 
 
 Mayor of Colchester v. JBrooke, 598. 
 Mayor of Hereford's Case, 334. 
 Mayor v. Knowler, 502. 
 McAuley v. State, 135. 
 McCall V. McDowell, 351. 
 McCaliis V. Hawes, 566. 
 
 M'Carron v. O'Connell, 93. 
 
 M'Carty v Vickery, 570. 
 
 McClelland v. Ray, 143. 
 
 McClure v. Phila. &c. R. R. Co, 168, 
 
 174. 
 McCombie v. Davies, .557. 
 McConaghy v. McMuUen, 238. 
 McConihe v. Sawyer, 101. 
 McCoy V. Curtice, 502. 
 McCoy V. Lemon, 263. 
 McCrea v. Marsh, 161. 
 McCullough V. Walton, 647. 
 McCuUy V. Malcom, 345. 
 M'Curday v. Driscoll, 211. 
 McDaniels v. Bucklin, 617. 
 McDonald v. Wilkie, 429. 
 McDougall v. Maguire, 339. 
 McElhenny v. Wylie, 37. 
 M'Farland" V. Smith, 513, 554. 
 McGahey v. Moore, 513. 
 McGehee v. Shafer, 62. 
 McGlynn v. Billings, 580. 
 McGuinty v. Herrick, 390. 
 McGuire v. Grant, 46. 
 Mclntyre v. Green, 64. 
 Mclntyre v. Trumbull, 490. 
 Mclvor V. McCabe, 196. 
 McKee v. Judd, 37, 591. 
 McKenzie v. Allen, 338, 344. 
 McKenzie v. Hackstati; 300, 303. 
 McKeon v. See, 9. 
 M'Keown v. Johnson, 39. 
 McKnight v. Ratcliff, 54. 
 McLain v. Matlock, 158. 
 McLaughlin v. Pryor, 93, 191. 
 McMahon v. Green, 300, 303, 311. 
 M'Manus v. Ciicket, 43. 
 McManus v. Lee, 67. 
 McMasters v. Cohen, 335. 
 McMichael v. Mason, 634. 
 McMurtrie v. Stewart, 33. 
 McNall V. Vehon, 571. 
 McNamara v. King, 347, 351, 353. 
 McNeeley v. Hunton, 390. . 
 McRaeny v. Johnson, 554. 
 Meader v. Stone, 131. 
 Meddowscroft v. Sutton, 368. 
 Meeds v. Carver, 396. 
 Megee v. Beirne, 549. 
 Mellen v. Baldwin, 533. 
 Mellen v. Thompson, 133, 309, 310, 317. 
 Melville v. Brown, 458, 459, 461, 565. 
 Melvin v. Fisher, 300. 
 Menderback v. Hopkins, 78. 
 Meredith's Case, 124. 
 Merest v. Harvey, 3. 
 Mericle v. Mulks, 635. 
 Meriton v. Coomlies, 142. 
 Merrill v. Near, 83, 390. 
 Merrill v. Sawyer, 419.
 
 XXVI 
 
 TABLE OF CASES CITED. 
 
 ilcrrills v. The Tarill" ^lauf. Co., 648. 
 
 Merrils v. Goodwin, 358. 
 
 Merriman v. Bryant, 309. 
 
 Merritt v. Miller, 139, 4U3. 
 
 Merritt v. Read, 59, 391. 
 
 Merryweatber v. Njxan, 28, 67. 
 
 Mersereau v. Norton. 460. 
 
 Messer v. Bailov, 628. 
 
 Metcalf V. Clai4c, 287. 
 
 Middlebrook v. Corwin, 377. 
 
 Middleton v. Price, 317, 607. 
 
 Middleton v. Robinson, 54. 
 
 Milburn v. Beach, 647. 
 
 Miiburn v. Oilman, 429. 
 
 Miles V. Weston, 349. 
 
 Milhouse v. Patrick, 34. 
 
 Millay v. Millay, 233. 
 
 Millen v. Sweitzer, 228. 
 
 Miller v. Baker, 373, 382, 387, 462, 490. 
 
 Miller v. Brinkerhoff, 391. 
 
 Miller v. Foley, 300. 
 
 Miller v. Grice, 326. 
 
 Miller v. Lincoln, 261. 
 
 Miller v. Plumb, 374. 
 
 Miller v. Shaw, 194. 
 
 Mills V. Camp. 575. 
 
 Mills V. Caqjenter, 229. 
 
 Mills V. Dawson, 396. 
 
 Mills V. Martin, 381. 
 
 Mills V. Warner, 515. 
 
 Mills V. Wooters, 401. 
 
 Milton V. Bragdon, 41. 
 
 Milwaukee &c. R. R. Co. v. Finney, 164. 
 
 Mitchell V. Billingsley, 104. 
 
 Mitchell V. Dubose, 890. 
 
 Mitchell V. Foster, 58. 
 
 Mitchell V. Hughes, 508. 
 
 Mitchell V. Lemon, 293. 
 
 Mtchell V. Libbev, 99. 
 
 Mitchell V. Milbaiik, 107, 115. 
 
 Mitchell V. Smith, 203, 263. 
 
 Mitchell V. State, 131. 
 
 Mitchell V. Stetson, 359, 362, 559. 
 
 Mobile &c. R. R. Co. v. McArthur, 169. 
 
 Mock V. Kennedy, 451. 
 
 Molony v. Dows, 196. 
 
 Monks V. Dykes, 226. 
 
 Monkton v. Ashly, 222. 
 
 Montague v. Richardson, 416. 
 
 Montgomery v. Wight, 427. 
 
 Moon V. Eldred, 97. 
 
 Moore v. Adam, 224. 246. 
 
 Moore v. Bowman, 365, 449. 
 
 Moore v. Erie R. R. Co., 365. 
 
 Moore v. Fitchburg R. R., 166, 167, 203. 
 
 Moore v. Pennell, 461. 
 
 Moore v. Robinson, 554. 
 
 Moore v. Schultz, 618. 
 
 Moore V. Taylor, 613. 
 
 Moore y. Watts, 272. 
 
 Moors y. Parker, 83, 610. 
 
 Moran y. Dawes, 180, 181. 
 
 Morely y. Dunbar, 237, 238, 
 
 Mores y. Conham, 557. 
 
 Morgan y. Bowman, 46. 
 
 Morgan y. Cox, 5. 
 
 Morgan y. Hughes. 59, 283. 
 
 Morgan v. Varick, 373, 374. 
 
 Morgans y. Bridges, 300. 
 
 Moriarty y. Brooks, 129, 156. 
 
 Moroney y. Old Colony «fec. R. R. Co., 
 
 168. 
 Morris v. Hyde, 481. 
 Morris y. Piatt, 130, 132. 
 Morris y. Van Voast, 463. 
 Morrison y. Bedell, 77. 
 Morrison y. Wright, 442. 
 Morrow y. Belcher, 83. 
 Morse y. Pike, 559. 
 Morse y. Presby, 116. 
 Mortimer y. Thomas, 350. 
 fviortin y. Shoppe, 122. 
 Morton's Case, 63. 
 Moses y. Dubois, 267. 
 Mosher y. The People, 272. 
 Mostyn y. Fabrigas, 196, 197, 198. 
 Moulton y. Norton, 491. 
 Moulton y. Robinson, 460, 547. 
 Mower y. Stickney, 439. 
 Mowrey y. Walsh, 567. 
 Mugford y. Richardson, 150. 
 Muggridge y. Eyeleth, 551. 
 Mullius y. Scott, 262. 
 Munger y. Baker, 19. 
 Murdock y. Gilford, 373. 
 Mure y. Kaye, 332. 
 Murphy y. Dart, 238. 
 Murphy y. Tripp, 616. 
 Murray y. Boyne, 122, 236. 
 Murray y. Ezell, 397. 
 Mussey y. Cummings, 479. 
 Mussey y. Scott, 401. 
 Mussina y. Belden, 1£6. 
 Myers y. Goodchild, 342. 
 Myrich y. Downer, 92, 93. 
 
 Nagle V. Mullison, 104, 600. 
 
 Nash y. Mosher, 386, 468, 547, 568, 569. 
 
 Nash y. Primm, 36. 
 
 Nason agst. Sewall, 302. 
 
 Naylor y. Dennie, 419. 
 
 Neate y. Harding, 395. 
 
 Neely y. McCormick, 534, 
 
 Neflfv. Thompson, 382, 549,550. 
 
 Nelson v. Bondurant, 186. 
 
 Nelson y. Brodhack, 212. 
 
 Nelson v. Burt, 586. 
 
 Nelson y. Chernll, 608. 
 
 Nensorn y. Anderson, 34. 
 
 Nestor y. Newcome, 83,
 
 TABLE OF CASES CITED. 
 
 XXVll 
 
 Nettleton v. Sikes, 160. 
 
 Newbould v. Coultman, 325. 
 
 Newcomb v. Ramer, 588. 
 
 Newhall v. Dunlap, 547. 
 
 Newman v. Bennett, 182, 186. 
 
 Newman v. Tiernan, 320. 
 
 New Orleans &c. R. R. Co. v. Allbritton, 
 
 246, 248. 
 New Orleans &c. R. R. Co. v. Statliam, 253. 
 Newton v. Adams, 420. 
 Newton v. Boodle, 345. 
 Newton v. Harland, 150. 
 Nicliol's Case, 124. 
 Nichols V. Thomas, 299, 302, 440. 
 Nichols V. Walker and Carter, 430. 
 Nickleson v. Stiyker, 181. 
 Nicklin v. Williams, 12. 
 Nicolls V. Ingersoll, 268. 
 Nightingale v. Scannell, G33, 646. 
 Niver v. Niver, 588. 
 Noble V. Holmes, 432. 
 Nodin V. Johnson, 211, 212. 
 Nolton V. Moses, 260. 
 Northern R. R. Co. v. Page, 171, 174. 
 Northrup agst. Brush & Isaacs, 203. 
 Norton v. Nye, 476. 
 Nossaman v. Rickert, 105. 
 Nowlen v. Colt, 563. 
 Noyes v. Ward, 248. 
 Nye V. Smith, 492. 
 
 Oakes v. Wood, 213. 
 Oakley v. Davis, 338, 
 Oakley v. Van Horn, 78. 
 Obier v. Neal, 133. 
 O'Brien v. Bround, 66. 
 Ockington v. Richey, 388. 
 Odiorne v. Colley, 507. 
 Ogden V. Gibbons, 91. 
 Ogle V. Barnes, 32. 
 O'Hara v. King, 154. 
 Okley V. Watts, 382. 
 O'Leary v. Rowan, 129, 246. 
 Oliet V. Bessey, 316. 
 Oliver v. Phelps, 606. 
 Orange v. Berry, 81. 
 Ordway v. Ferrin, 465, 505. 
 Orser v. Storms, 520. 
 Osborne v. Rogers, 81. 
 Osgood v. B^ake, 498, 499, 504. 
 Osgood V. Welch, 303, 305. 
 Osterhout v. Roberts, 601. 
 Otis V. Jones, 401, 633, 636. 
 Otis V. Sill, 541. 
 Otis V. Wood, 544. 
 Ously V. Hardin, 63, 104. 
 Outcalt V. Darling. 87, 507, 511. 
 Outlaw V. Davis, 392. 
 Owens V. Derby, 111. 
 Oystead v. Shed, 26. 
 
 Packard v. Packard, 5. 
 Page V. De Puy, 477. 
 Page V. Freeman, 62. 
 Page V. Mitchell, 351. 
 Paige V. Smith, 84, 130. 
 Palmer v. Allen, 326. 
 Palmer v. Skillinger, 224. 
 Pangburn v. Partridge, 381. 
 Parish v. Wilhelm, 448. 
 Parker v. Bailey, 182. 
 Parker v. Bidwell, 268. 
 Parker v. Hall, 381. 
 Parker v. Kendrick, 515. 
 Parker y. Patrick, 567. 
 Parker v. Pattee, 475. 
 Parker v. Redfield, 378. 
 Parker v. Smith, 429. 
 Parker v. Tirrell,416. 
 Parker v. Walrod, 428, 434, 439, 457, 626. 
 Parkerson v. Wightman, 391. 
 Parkhurst v. Pearsons, 273. 
 Parmlee v, Leonard, 444. 
 Parsons v. Brown, 227. 
 Parsons v. Camp, 375. 
 Parsons v. Dickinson, 389, 526. 
 Parsons v. Harper, 105, 351. 
 Parsons v. Lloyd, 304, 309, 391. 
 Parsons v. Monteath, 162. 
 Parsons v. Webb, 569. 
 Pasley v. Freeman, 287. 
 Passenger R. R. Co. v. Young, 162. 
 Pastorius v. Fisher, 252. 
 Patchen v. Wilson, 532. 
 Patcher v. Sprague, 609. 
 Patrick v. Greenway, 12. 
 Patten v Gumey, 607. 
 Patten v. Wilson, 37, 
 Patterson v. Perry, 626. 
 Patterson v. Prior, 315. 
 Paul V. Hayford, 537. 
 Paul V. Slason, 469. 
 Paxton V. Steckel, 462. 
 Payson v. Hall, 473. 
 Payson v. AVhitcomb, 29. 
 Peabody v. Mmot, 261. 
 Peak V. Lemon, 39, 40, 399. 
 Pearce v. Lodge, 615. 
 Pearce v. Torrence, 500. 
 Pearcy v. Walter, 83. 
 Pease v. Whitney, 329. 
 Peat V. Utterton, 346. 
 Peck V. Batchelder, 371, 
 Peck v.. Smith, 36. 
 Peddell v. Rutter, 389. 
 Pedley v. Davis, 325. 
 Peeler v. Stebbins, 473. 
 Pendleton v. Davis, 241, 247. 
 Penn v. Ward, 217, 236. 
 Pennsylvania &c. Canal Co. v. Graham^ 
 248.
 
 XXVlll 
 
 TABLE OF CASES CITED. 
 
 Penton v. Robart, 374, 379. 
 
 People V. Abbott, 243. 
 
 People V. Bransby, 134. 
 
 People V. Carpenter, 190. 
 
 People V. Gonl. Sess. of Genesee, 258. 
 
 People V. Hays, 124. 
 
 People V. Hubbard, 141. 
 
 People V. Jackson, 243. 
 
 People V. Schuyler, 463, 490. 
 
 People V. Warren, 432. 
 
 People V. White, 56. 
 
 People V. Willett, 383. 
 
 People V. Winters, 189. 
 
 Percival v. Hickev, 15, 35, 199. 
 
 Percival v. JoDes,'57, 390. 
 
 Percival v. Stamp, 295, 435. 
 
 Percy v. Clary, 28. 
 
 Perine v. Dunn, 38. 
 
 Perkins v. N. Y. Cent. R. R. Co., 162. 
 
 Perkins v. Proctor, 59. 
 
 Perkins v. Smith, 50. 
 
 Perkins v. Vaughan, 847. 
 
 Perkins v. Weston, 513, 531. 
 
 Perrin v. Claflin, 393. 
 
 Perrine v. Blanchard, 255. 
 
 Perry v. Buss, 329, 342. 
 
 Perry v. Carr, 377. 
 
 Perry v. Chandler, 539, 635. 
 
 Perry v. Perry, 189. 
 
 Peters v. Stanway, 284. 
 
 Petrie v. Lamont, 54. 
 
 Pettengill v. Bartlett, 459. 
 
 Peverly v. Sayles, 415. 
 
 Peyton v. Rogers, 221. 
 
 Pfeiffer v. Grossman, 33. 
 
 Phares v. Stewart, 19. 
 
 Phila. & Reading R. R. Co. v. Derbv, 
 
 50, 165. 
 Phila. & Reading R. R. Co. v. Hum- 
 
 mell, 5. 
 Philbrick v. Foster, 217. 
 Philips V. Biron, 304. 
 Phillips V. Bacon, 585. 
 Phillios V. Cook, 422. 
 Phillips V. Hall, 382, 463, 590. 
 Phillips V. Howgate. 221. 
 Phillips V. Kellv, 236, 241, 257. 
 Phillips V. Kenf, 110. 
 Phillips V. Trull, 268. 
 Phillips V. Willard, 522. 
 Phillips V. Wood, 273. 
 Pickard v. Collins, 18. 
 Pickering v. Coleman, 508. 
 Pickering v. Pickering, 607. 
 Pickering v. Trust, 406. 
 Pier V. Fmch, 171, 224. 
 Pierce v. Benjamin, 473, 504, 505, 632, 
 
 635,641. 
 Pierce v. Chipman, 574, 579. 
 Pierce v. Hicks. 152. 
 
 Pierce v. Hoffman, 229, 583. 
 
 Pierce v. Pickens, 78, 92. 
 
 Pierce v. Van Dyke, 381, 569. 
 
 Pierpont v. Shapland, 90. 
 
 Piggott V. Kemp, 216. 
 
 Pike V. Dilling, 251. 
 
 Pike V. Hanson, 312, 313. 
 
 Pillow V. Bushnell, 190. 
 
 Pilsbury v. Hubbard, 533. 
 
 Pitford V. Armstrong, 140. 
 
 Pitt V. Shew, 588. 
 
 Pitts V. Gaince, 554. 
 
 Pitts V. Meller, 39. 
 
 Plate V. N. Y. Cent. R. R. Co., 103. 
 
 Piatt V. Bryant, 365. 
 
 Piatt V. Miles, 328. 
 
 Playi'air v. Musgrove, 464. 
 
 Pleasants v. Heard, 262. 
 
 Plumb V. Ives, 618. 
 
 Plumer v. Plumer, 377. 
 
 Plummer v. Dennett, 308. 
 
 Plummer v. Webb, 187. 
 
 Pocock V. Moore, 314. 
 
 Poinsett v. Tavlor, 491. 
 
 Polkinhorn v. Wright, 140, 224. 
 
 Pollard V. Otter, llO. 
 
 Pollen V. Brewer, 150. 
 
 Pomeroy v. Smith, 536. 
 
 Pond V. Leman, 490. 
 
 Ponder v. Moseley, 450. 
 
 Poole V. Svmonds, 547. 
 
 Poole's Case, 374. 
 
 Poor V. Taggart, 317, 318, 337. 
 
 Porter v. N. Y. Cent. R. R. Co., 176. 
 
 Porter v. Purdy. 432. 
 
 Porter V. Seiler, 245, 252. 
 
 Post V. Munn, 34. 
 
 Potter V. Hall, 417. 
 
 Potter V. Mather, 576. 
 
 Potter V. Washburn, 507, 577. 
 
 Poucher v. HoUev, 296. 
 
 Poulk V. Slocum.' 57, 329. 
 
 Poulton V. Lend. & S, Western R. R. 
 
 Co., 44, 163. 
 Powell V. Bagg, 92. 
 Powell V. Hodgetts, 346. 
 Powell V. Monson, 373. 
 Powers V. David, 110. 
 Powers V. Dennison, 370, 380. 
 Powers V. Russell, 127. 
 Powers V. Wilson, 296. 
 Pozzoni V. Henderson, 22, 646. 
 Pratt V. Battels, 640. 
 Pratt V. Bunker, 51. 
 Pratt V. Farrar, 464. 
 Pratt V. Hill, 323. 
 Pratt V. Pratt, 610. 
 Prell V. McDonald, 293. 
 Prentice v. Harrison, 340. 
 Prentiss v. Shaw, 237, 349.
 
 TABLE OF CASES CITED. 
 
 XXIX 
 
 Prescott V. Bartlett, 361. 
 
 Preston v. Briggs, 374. 
 
 Preston v. Leighton, 541. 
 
 Prewitt V. Clayton, 34. 
 
 Price V. Graham, 274. 
 
 Price V. Helyar, 381. 
 
 Price V. Seeley, 268, 284, 334. 
 
 Price V. Severne, 354. 
 
 Prichard v. Campbell, 94, 115. 
 
 Prince v. Case, 378. 
 
 Prince v. Flynn, 393. 
 
 Pritchet v. Boevy, 353. 
 
 Props, of Kennebec v. Boulton, 107. 
 
 Prosser v. Secor, 272. 
 
 Pryce v. Foulkes, 114. 
 
 Pulver V. Harris, 229. 
 
 Purple V. Hudson River R. R., 37. 
 
 Purrington v. Loring, 465, 480, 627. 
 
 Puryear v. Thompson, 50. 
 
 Putnam v. Clark, 420. 
 
 Putnam v. Man, 115, 346, 629. 
 
 Putnam v. Wyley, 513, 550. 
 
 Pyle V. Pennock, 373. 
 
 Queen v. Read, 124. 
 Queen v. Soley, 36. 
 Quick V. Staines, 534. 
 
 Railroad Co. v. Hanning, 178. 
 
 Ramsden v. Boston &c. R. R. Co., 165. 
 
 Randall v. Rich, 29. 
 
 Ranger's Case, 33. 
 
 Rankin v. De Medina, 340. 
 
 Ransom v. Wetmore, 586. 
 
 Rappelyea v. Hulse, 190. 
 
 Ratcliffe v. Burton, 328. 
 
 Ratliflfv. Huntley, 619. 
 
 Rawlins v. Rounds, 516. 
 
 Ray V. Birdseye, 423. 
 
 Ray V. Harcourt, 421. 
 
 Read v. Burley, 410. 
 
 Read v. Coker, 122. 
 
 Reader v. Moody, 368. 
 
 Redington v. Chase, 565. 
 
 Redman v. Hendricks, 544. 
 
 Reece v. Griffiths, 342. 
 
 Reece v. Taylor, 88, 129, 217, 224, 285. 
 
 Reed v. Conway, 428. 
 
 Reed v. Davis, 250. 
 
 Reed v. Shepherdson, 460. 
 
 Reed v. Stoney, 632. 
 
 Reeder v. Purdy, 251. 
 
 Reese v. Bolton, 218, 230. 
 
 Reg. V. Case, 124. 
 
 Reg. V. Crowan, 322. 
 
 Reg. V. Johnson, 121. 
 
 Reg. V. Light, 292. 
 
 Reg. V. Lundie, 293. 
 
 Reg. V. Mann, 293. 
 
 Reg. V. Martin, 121. 
 
 Reg. V. Stockton, 322. 
 
 Reg. V. Tooley, 291. 
 
 Reg. V. Totness, 322. 
 
 Reg. V. Wheeler, 370. 
 
 Reinmiller v. Skidmore, 391. 
 
 Relyea v. Beaver, 92. 
 
 Rembert v. Kelly, 57. 
 
 Remington v. Cady, 458. 
 
 Renaudet v. Crocken, 77. 
 
 Reuck v. McGregor, 269, 351. 
 
 Rex v. Baker, 33. 
 
 Rex V. Biraie, 322. 
 
 Rex V. Fielding, 258. 
 
 Rex V. Harvey, 253. 
 
 Rex V. Newman, 299. 
 
 Rex V. Sparrow, 258. . 
 
 Rex V. Storr, 33. 
 
 Rex V. Topham, 17. 
 
 Rex V. Woodiall, 17. 
 
 Reynolds v. Church, 327. 
 
 Reynolds v. Corp, 278, 295. 
 
 Reynolds v. Moore, 502. 
 
 Reynolds v. Shuler, 374, 
 
 Rhine v. Montgomeiy, 212. 
 
 Rhodes v. Bunch, 238. 
 
 Rhodes v. Roberts, 85. 
 
 Rice V. Chase, 447. 
 
 Rice V. Courtis, 425, 574. 
 
 Rice V. Ferris, 373, 
 
 Rice V. Holleubeck, 635. 
 
 Rice V. Stone, 37. 
 
 Rice V. The Town of Montpelier, 5. 
 
 Rice V. Wadsworth, 504. 
 
 Rich V. Rich, 612. 
 
 Richards v. Symons, 405, 632. 
 
 Richards v. Turner, 346, 347. 
 
 Richardson v. Boright, 547. 
 
 Richardson v. Duncan, 286. 
 
 Richardson v. Eastman, 588. 
 
 Richardson v. Emerson, 67. 
 
 Richardson v. Hall, 013. 
 
 Richardson v. Mellish, 102. 
 
 Ricker v. Freeman, 19. 
 
 Ricker v. Kelly, 378. 
 
 Ricketts v. Salwey, 91. 
 
 Riddel v. Pakemau, 303. 
 
 Riddle v. Brown, 135. 
 
 Riddle v. Props, of Merrimack Locks & 
 
 Canal, 53. 
 Ridout V. Burton, 521. 
 Rigg V. Lonsdale, 356. 
 Rigney v. Smith, 366. 
 Rinchey v. Stryker, 571, 626. 
 Ring V. Grout, 500, 502. 
 Rising V. Granger, 79, 330. 
 Robert Mary's Case, 200. 
 Roberts v. Mason, 105, 248, 257. 
 Roberts v. Taylor, 213. 
 Roberts v. Thomas, 447. 
 Roberts v. Wentworth, 514, 623.
 
 XXX 
 
 TABLE or CASES CITED. 
 
 Roberts v. Wiffgin, 547. 
 
 Robertson v. Phillips, 513. 
 
 Robinson v. Austin, 515. 
 
 Robinson v. Dodge, 57. 
 
 Robinson v. Hawkins, 86, 634. 
 
 Robinson v. Leavitt, 540. 
 
 Robinson v. Mansfield, 444, 463, 639. 
 
 Robinson v. Vaughton, 68. 
 
 Robinson v. Wilson, 224. 
 
 Roche V. Milwaukee Gas Co., 3. 
 
 Rock wood V. CoUamer, 574. 
 
 Rodney v. Strode, 106. 
 
 Roe V. Birkenhead, 28. 
 
 Roffey V. Henderson, 161. 
 
 Rogers v. Arnold, 381. 
 
 Rogers v. Brown, 618. 
 
 Rogers v. Fales, 401, 450, 636. 
 
 Rogers v. Haines, 98. 
 
 Rogers v. Judd, 381. 
 
 Rogers v. Mulliner, 275. 
 
 Rogers v. Spence, 509. 
 
 Rogers v. Waite, 129. 
 
 Rogers v. Weir, 447. 
 
 Rogers v. Wilson, 346. 
 
 Romaine v. Norris, 617. 
 
 Roof V. StaflFord, 568. 
 
 Root V. Chandler, 393, 514, 520. 
 
 Root V. Fren-ih, 570. 
 
 Root V. Sherwood, 112. 
 
 Roper V. Harper, 92. 
 
 Rose V. Gallup, 365, 636 
 
 Rose V. Oliver, 63. 
 
 Rose V. Wilson, 285. 
 
 Rosinski's Case, 124. 
 
 Ross V. Fuller, 25, 487. 
 
 Ross V. Lapham, 244. 
 
 Ross V. Lown, 614. 
 
 Ross V. Philbrick, 468, 472, 479. 
 
 Roth V Smith, 17, 371. 
 
 Roth V. Wells, 430, 423, 433. 
 
 Rous V. Hazard, 485. 
 
 Routledge v. Abbot, 650. 
 
 Rowcliffe V. Murray, 207. 
 
 Rowe V. Bradley, 33. 
 
 Rowe agst. Smith, 40. 
 
 Rowland v. Veale, 301, 475, 607. 
 
 Rowles V. Senior, 390. 
 
 Rowley v. Bigelow, 571. 
 
 Rowley v. Rice, 464, 541. 
 
 Ruan V. Perry, 438. 
 
 RuflFner v. Williams, 371. 
 
 Ruggles V. Lesure, 160. 
 
 Rundle v. Little, 636, 633. 
 
 Russell V. Buchanan, 39. 
 
 Russell V. Butterfield, 544, 643. 
 
 Russell V. Come, 180. 
 
 Russell V. Dodds, 144. 
 
 Russell V. Gibbs, 421. 
 
 Russell V. Hanscomb, 475. 
 
 Russell V. Perry, 57. 
 
 Russen v. Lucas, 314. 
 Ryder v. Hathaway, 363, 365. 
 Ryer v. Atwater, 344. 
 RyghtmjTe v. Durham, 115.' 
 
 Sabin v. Long, 114. 
 
 Sage V. Keesecker, 84. 
 
 Sailly V. Smith, 483. 
 
 Salmon v. Orser, 615. 
 
 Saltus V. Everett, 368, 399. 
 
 Sampson v. Coy, 249. 
 
 Sampson v. Henry, 151, 205, 401. 
 
 Samuel v. Duke, 447. 
 
 Samuel v. Payne, 370, 291. 
 
 Sanborn v. Fellows, 56. 
 
 Sanders v. Vance, 539. 
 
 Sanderson v. Baker, 16. 
 
 Sanderson v. Caldwell, 601. 
 
 Sandford v. Eighth Av. R. R. Co., 163, 
 
 170. 
 Sandibrd v. Nichols, 399, 302, 440. 
 Sanford v. Dick, 498. 
 Sargent v, Oile, 556. 
 Saunder's Case, 124. 
 Saunderson v. Baker, 447. 
 Savacool v. Boughton, 303, 304, 344, 438, 
 
 431,433,502. 
 Savage v. Smith, 626. 
 Savin V. Long, 106. 
 Sawyer v. Goodwin. 77. 
 Sawyer V. Merrill, 96,116. 
 Sawyer v. Wilson, 466, 468, 536. 
 Sayre v. Rockford, 339. 
 Scammon v. Scammon, 628. 
 Schemerhorn v. Tripp, 57, 83, 96. 
 Schiudel v. Schindel, 368, 388. 
 Schlosser v. Fox, 240. 
 Schmidt v. Preil, 247. 
 Schuer v. Veeder, 34. 
 Scott V. Bay, 35. 
 Scott V. Dixon, 338. 
 Scott V. Ely, 299. 
 Scott V. Lord Sevmour, 196. 
 Scott V. Shepherd, 19, 21, 133. 
 Scott V. Sherman, 429. 
 Scott V. Watson, 41. 
 Scribner v. Beach, 139, 141, 143, 147. 
 Seaman v. Cuppledick, 141. 
 Searls v. Viets, 313. 
 Sears v. Lyons, 17. 
 Sears v. Shafer, 631. 
 Seavy v. Dearborn, 90,565,491. 
 Second Cong. Soc. v. Howard, 383. 
 Seddon v. futop, 99, 100. 
 Sedley v. Sutherland, 78, 93. 
 Seekins v. Goodale, 505. 
 Seeley v. Bird sail, 464. 
 Selby V. Platts, 892. 
 Selby V. Robinson, 114. 
 Selden v. Cushman, 649.
 
 TABLE OF CASES CITED. 
 
 XXXI 
 
 Sellers v. Zimmennau, 234. 
 Seneca R. Co. v. The Auburn & Roches- 
 ter R R Co., 13. 
 Setzar v. Butler, 587. 
 Severance v. Kimball, 286. 
 Sewell V. Harrington, 529. 
 Sexey v. Adkinson, (326. 
 Seymour v. Gi'eenvvood, 42. 
 Shadgett v. Clipson, 299. 
 Shapliigh V. Bellows, 38. 
 Sharp V. Gray, 601. 
 Shaw V. Davis, 439. 
 Shaw V. Dodge, 295. 
 Shaw V. Reed, 275. 
 Shaw V. Spooner, 287. 
 Sheldon v. Kibbe, 62, 74, 107, 202, 601. 
 Sheldon v. Lake, 203. 
 Shepardson v. Inhabs. of Colerain, 5. 
 Shepherd v. McQuilkin, 393. 
 Sheppard v. Fumiss, 330. 
 Sheppard v. Shelton, 459. 
 Shergold v. HoUowav, 306. 
 Sherley v. Billings, 233. 
 Sherman v. Braman, 465. 
 Sherman v. Dutch, 643. 
 Sherman v. Elder, 37, 591. 
 Sherman v. Kortright, 17. 
 Sherry v. Schuyler, 422, 633. 
 Shipler v. Isenhower, 77. 
 Shipman v. Clark, 437. 
 Shipman v. Horton, 401, 405. 
 Shloss V Cooper, 518. 
 Shorland v. Govett, 317. 
 Shorter v. The People, 124, 129, 286. 
 Shufelt V. Rowley, 181. 
 Shumway v. Rutter. 457. 
 Sikes V. Johnson, 193. 
 Silsbury v. McCoon, 361, 362, 365. 
 Silverman v. Foreman, 100, 259. 
 Simmons v. Miliingen, 285. 
 Simpson v. Hartopp, 410. 
 Simpson v. Morris, 142. 
 Simpson v. Nadeau. 486. 
 Simpson v. Perry, 105. 
 Simpson v. Watrus, 608, 626. 
 Sims V. Glazener, 646. 
 Sims V. Reed, 402. 
 Sinclair v. Tarbox, 387, 648. 
 Sisco V. Cheeney, 202. 
 Six Carpenters' Case, 478, 479. 
 Skiff V. Solace, 519, 544. 
 Skinner v. Oettinger, 626. 
 Skinner v. Stuart, 443. 
 Slater v. Sherman, 251. 
 Sleeper v. Pollard, 526. 
 Sleight V. Ogle, 277. 
 Slocum V. Wheeler, 59. 
 Slomer v. People, 442. 
 Smart v. Wolfe, 486. 
 Smith V. Atkins, 524. 
 
 Smith V. Bean, 583. 
 
 Smith V. Bouchier, 59, 273, 304. 
 
 Smith V. Bowker, 302, 438. 
 
 Smith V. Bull. 196. 
 
 Smith V. Burtis. 530. 
 
 Smith V. ChMpell, 452. 
 
 Smith V. Felt, 393. 
 
 Smith V. Gates, 465, 466. 
 
 Smith V. Goodwin, 585. 
 
 Smith V. Holcomb, 248, 249. 
 
 Smith V. Ishenhour, 433. 
 
 Smith V. Jenks, 635. 
 
 Smith V. Knowlton, 56, ll6. 
 
 Smith V. Miles, 430. 
 
 Smith V. Mills, 512, 513. 
 
 Smith V. Moore, 544. 
 
 Smith V. Newburyport Marine Ins. Co., 
 
 483. 
 Smith V. Orser, 461. 
 Smith V. Overby, 248. 
 Smith V. Rice, 56. 
 
 Smith V. Shaw, 317, 390, 391. 
 Smith V. Singleton, 263. 
 
 Smith V. Slocum, 153. 
 
 Smith V. Smith, 586. 
 
 Smith V. State, 265. 
 
 Smith V. Stokes, 459. 
 
 Smith V. Tankersley, 459. 
 
 Smith V. Thackerah, 9. 
 
 Smith V. Wilbur, 81. 
 
 Smithwick v. Ellison, 377. 
 
 Smithwick v. Ward, 243, 245. 
 
 Snedeker v. Warring, 371, 373, 375. 
 
 Snelling v. Watrous, 287. 
 
 Snider v. Croy, 603. 
 
 Snively v. Fahnestock, 103. 
 
 Snodgrass v. Hunt, 93. 
 
 Snow V. Chandler, 72, 73. 
 
 Snow V. Clark, 318. 
 
 Snow V. Cowles, 12. 
 
 Snyder v. Vaux, 362. 
 
 Soames v. Watts, 569. 
 
 Sodousky v. M'Gee, 107. 
 
 Solomon v. Waas, 39, 588. 
 
 Soper v. Sumner, 551. 
 
 Southerin v. Mendum, 557. 
 
 South Royalton Bank v. Suffolk Bank, 
 141. 
 
 Southwick V. Estes, 50. 
 
 Southwick V. Ward, 263. 
 
 Southworth v. Isham, 542. 
 
 Southworth agst. Packard, 201. 
 
 Sowell V. Champion, 113, 623, 645. 
 
 Spartz V. Lyons, 231. 
 
 Spaulding v. Preston, 10, 11. 
 
 Spencer v. Harrison, 96, 97. 
 
 Spencer v. Williams, 73, 74. 
 
 Spooner v. Fletcher, 411, 412, 446. 
 
 Spoor v. Holland, 643. 
 
 Spoor V. Spooner, 112, 267, 464.
 
 XXXll 
 
 TABLE OF CASES CITED. 
 
 Sprague v. Bircliard, 391, 434. 
 
 Sprague v. Ecclestoii, 'Si't. 
 
 Spraishts v. Hawlev, 508. 
 
 Squire v. lloUenlieck, 632, G35, 641. 
 
 Stacev V. Whitehurst, 66. 
 
 Stafford v. Mercer, 384. 
 
 Stafford's Case, 119. 
 
 Stallings v. Owens, 125. 
 
 Stammers v. Yearslev, 211, 334. 
 
 Stanley v. Gavlord, 384, 531, 591. 
 
 Stante v. Pricket, 221. 
 
 Stanton V. Hodges, 319, 420, 529, 637, 638. 
 
 Stanton v. Scliell, 60. 
 
 Stanton v. Seymour, 328, 330. 
 
 Staples V. Smith, 513. 523. 
 
 Starr v. Kent, 588. 
 
 StaiT V. Scott, 322. 
 
 State V. Baker, 124. 
 
 State V. Bradish, 80. 
 
 State V. Buchanan. 139, 141. 
 
 State V. Cherry, 123. 
 
 State V. Cole. 241. 
 
 State V. Da\-is, 129. 
 
 State T. Elliot, 142, 147, 148. 
 
 State V. Foster, 435. 
 
 State V. Fuller, 139. 
 
 State V. Gibson, 131. 
 
 State V. Guest. 304. 
 
 State V. Hamilton, 308. 
 
 State V. Hooker, 128. 
 
 State V. Hull & Webb, 188. 
 
 State V. Jennings. 438. 
 
 State V. .lowers, 236. 
 
 State V. Knotts, 23. 
 
 State Y. 3Ialcom, 121. 
 
 State V. :Mann,434. 
 
 State V. Miller, 139. 
 
 State V. Moore, 143, 144, 478. 
 
 State V. Morgan, 446. 
 
 State V. Pearman, 382. 
 
 State V. Pike. 615. 
 
 State V. Rawles, 1-24, 194. 
 
 State V. Richmond, 56. 
 
 State V. Sims, 122. 
 
 State V. Thompson. 329. 
 
 State V. Vannov, 122. 
 
 State V. Weed,'298, 428. 504. 
 
 State V. Wheeler, 33. 
 
 State V. Williams, 183. 
 
 State V. Woodward, 152. 
 
 Stearns v. Dillingham, 586. 
 
 Steams v. Sampson, 122. ' 
 
 Stebbins v. Copper, 615. 
 
 Steel agst. Fish, 428. 
 
 Stein V. Valkenliuvsen, 287. 
 
 Stephen v. Myers, 'l22, 124, 236. 
 
 Stephen v. Smith, 167, 175. 
 
 Stephens v. Ehvall, 280. 
 
 Stephens v. Wider, 117. 
 
 Stephens v. Wilkins, 500. 
 
 Stephenson v. Clark, 515. 
 
 Stephenson v. Little, 364. 
 
 Stetlar v. Nellis, 239. 
 
 Stetson V. Goldsmith, 390. 
 
 Stetson V. Kempton, 492, 494, 502. 
 
 Stetson V. Packer, 307. 
 
 Stevens v. Briggs. 359. 
 
 Stevens v. Somerindvke. 462, 589. 
 
 Stewart v. Martin, 640, 641. 
 
 Stewart v. Wallis, 89. 
 
 Stewart v. Wells, 462. 
 
 Stickney v. Davis, 456. 
 
 Stief V. Hart, 553. 
 
 Stiles V. Shumway, 515. 
 
 Stimpson v. Revnold«, 437. 
 
 St. John V. St. John's Church, 28, 29. 
 
 St. Louis, Alton & Chicago R. R. Co. 
 
 V. Dalby, 1G5. 
 Stockham v. Jones, 96. 
 Stockton v. Frey, 248. 
 Stockwell V. Campbell, 375. 
 Stockwell V. :Marks, 374. 
 Stoddard agst. Bird, 286. 
 Stone V, Chambers, 391. 
 Stone V. Dickinson, 74, 354. 
 Stone V. Hooker, 30. 
 Stone V. Knapp, 475. 
 Stone v. Matherly, 107. 
 Stone V. Proctor, 376. 
 Stonehouse v. Elliott, 283, 328. 
 Storer v. Hobbs, 63. 
 Storey v. Robinson, 411. 
 St'^rm V. Livingston, 568. 
 Storrs V. City of Utica, 52. 
 Stougliton V. Mott, 383, 395, 441, 473, 
 
 475, 476, 477. 
 Stoughton V. Taylor, 485. 
 Stout V. Prall, 252. 
 Stout V. Wren, 125. 
 Stow v. Scribner, 84. 
 Stowe V. Heywood, 289. 
 Stovel V. Lawrence, 304. 
 St. Peter's Church v. Beach, 104, 233. 
 Strasburger v. Barber, 639. 
 Stratton v. Xichols, 233. 
 Strode v. Hunt, 588. 
 Strohl V. Levan, 34, 42, 191, 192. 
 Strong v. Adams, 524, 549. 
 Strong V. Hobbs, 605. 
 Strout V. Gooch, 314. 
 Strutt V. Bovingdon, 98. 
 Stults V. Buckelew% 89. 
 Sturbridge v. AYinslow, 433. 
 Sturdevant v. Gains. 76. 
 Stiu-devant v. Murrell, 78. 
 Sturgenegger v. Taylor, 196. 
 Sturgis V. Warren, 544, 
 Sugg V. Pool, 346. 
 Suggs V. Anderson, 338. 
 Sullivan v. Jones, 57, 58, 271, 325.
 
 TABLE OF CASES CITED. 
 
 XXXlll 
 
 Sullivan v. Murphy, 5. 
 Sunbolf V. Alford, 410. 
 Sutliflf V. Gilbert, 111. 
 Sutton V. Beach, 467. 
 Sutton T. Moody, 357. 
 Suydam v. Jenkins, 643. 
 Suydara v. Keyes, 501, 502. 
 Swann v. Broome, 295. 
 Swift agst. Chamberlain, 432. 
 Swift V. Moseley, 550. 
 Swift V. Thompson, 373, 
 Swigert v. Thomas, 535. 
 Swinton v. Molloy, 198. 
 Swire v. Leach, 641. 
 Switzer v. Valentine, 190. 
 Symonds v. Hall, 570, 
 
 Taber v. Hutson, 248, 
 
 Taft V. Metcalf, 23, 51, 496. 
 
 Taggard v. Loring, 552. 
 
 Taggart v. Packard, 540. 
 
 Taintor v. Williams, 528. 
 
 Tait V. Harris, 92, 346. 
 
 Talbot V. Seaman, 92. 
 
 Tallman v. Torek, 570. 
 
 Talmadge v. Scudder, 399, 562, 568, 569 
 
 Tancred v. Allgood, 450. 
 
 Tanner v. Hague, 296. 
 
 Tapfield v. Hillman, 541. 
 
 Tarlton v. Fisher, 302. 
 
 Tatum V. Morris, 399. 
 
 Taunton v. Costar, 144. 
 
 Taylor v. Church, 252. 
 
 Taylor v. Clendening, 130. 
 
 Taylor v. Cole, 144, 214, 216, 613. 
 
 Taylor v. Jones, 54, 114, 455, 457, 480. 
 
 Taylor v. Owen, 329, 
 
 Taylor v. Seymour, 448. 
 
 Taylor v. Smith, 89, 231. 
 
 Taylor v. Townsend, 378, 879. 
 
 Taylor v. Trask, 390. 
 
 Taylor v. Whitaker, 39. 
 
 Tefft V. Ashbaugh, 429. 
 
 Tenbroeck v. Paige, 261. 
 
 Terpenning v. Gallup, 91. 
 
 Terwnlliger v. Wheeler, 530. 
 
 Thames Manf. Co. v. Lathrop, 23, 496. 
 
 Thames Steamboat Co. v. Housatonic 
 R. R Co., 43. 
 
 Tharpe v. Stallwood, 533. 
 
 Thax'ter v. Jones, 503. 
 
 Thayer v. Willet, 626. 
 
 Thomas v. Isett, 620, 
 
 Thomas v. Marsh, 81, 161, 613. 
 
 Thomas v. Phillips, 520, 
 
 Thomas v. Powell, 350. 
 
 Thomas v. Rumsey, 63. 
 
 Thomas v. Russell, 350, 
 
 Thomas v. Snyder, 560. 
 
 Thomas v. SorrcU, IGO. 
 Voi-. I.— C 
 
 Thompson v. Blanchard, 360. 
 
 Thompson v. Button, 381. 
 
 Thompson v. Hamilton, 552. 
 
 Thompson v. Hoskins, 79. 
 
 Thompson v. Marsh, 490. 
 
 Thompson v. Mumma, 236. 
 
 Thorp V. Burling, 488, 518, 531. 
 
 Thorpe v. Barber, 97. 
 
 Thrall v. Knapp, 240. 
 
 Thrower v. Vaughan, 440. 
 
 Thurman v. Wild, 98. 
 
 Thurst V. West, 368. 
 
 Thurston v. Blanchard, 537. 
 
 Thurtell v. Beaumont, 162. 
 
 Tibbs V. Chase, 406. 
 
 Tifft V. Culver, 104. 
 
 Tift V. Tift, 41. 
 
 Tillotson V. Cheetham, 104, 253. 
 
 Tillotson V. Smith, 13. 
 
 Timmons v. Broyles, 360. 
 
 Timothy v. Simpson, 152, 195, 334, 268. 
 
 285. 
 Titley V. Foxall, 210. 
 Tobey v. Webster, 379. 
 Toby V. Reed, 614. 
 
 Tonawanda R. R. Co. v. Munger, 144. 
 Tooker v Duke of Beaufort, 115. 
 Toulmin v. Anderson, 115. 
 Tourtellot v. Rosebrook, 127. 
 Tower v. Wilson, 490. 
 
 Towle V. Lovet, 533. 
 
 Townsend v. Phillips, 448. 
 
 Tracy v. Leland, 588. 
 
 Tracy v. Williams, 59. 
 
 Train v. Wellington, 4! 8, 493. 
 
 Trask v. Hartford & New Haven RR..86. 
 
 Treat v. Barber, 364, 456, 648. 
 
 Trelawuey v. Bishop of Winchester, 115. 
 
 Trevor v. Wall, 607. 
 
 Tribblev. Frame, 135. 
 
 Trieber v. Blocher, 451. 
 
 Tripp V. Riley, 503. 
 
 Trout V. Kennedy, 559, 646. 
 
 True V. Congdon, 79. 
 
 Trull V. Howland, 327. 
 
 Trustees of the Village df Jordan v. 
 Otis, 487. 
 
 Trye v. Sir Chaloner Ogle, 198. 
 
 Tubbs V. Lynch, 67. 
 
 Tubbs V. Tukey, 317. 
 
 Tubervil v. Stamp, 9. 
 
 Tufts V. Hayes, 447. 
 
 TuUay v. Reed, 140. 
 
 TuUidge v. Wade, 248, 352. 
 
 Turner v. Austin, 419. 
 
 Turner v. Hitchcock, 74. 
 
 Turner v. Jones, 28, 29. 
 
 Turner v. McCarthy, 114. 
 
 Turner v. North Beach R. R. Co., 359. 
 
 Turpin v. Remy, 365.
 
 XXXIV 
 
 TABLE OF CASES CITED. 
 
 Tuttle V. Cook, 490. 
 Tuttle V. Hunt, 639. 
 Twig!? V. Potts, 606. 
 Twitchell v. Shaw, 440. 
 Tyler v. Pomeroy, 288, 289. 
 Tyson v. Booth, 338. 
 Tyson v. Ewing, 34, 648. 
 
 Ullman v. Barnard, 545. 
 Underwood v. Campbell, 609. 
 Union Bank v. Emerson, ;374. 
 Upton V. Holden, 503. 
 Usher v. Bushell, 588. 
 Utley V. Smith, 434. 
 
 Vail V. Lewis, 394. 
 Van Brunt v., Sclienck, 396, 469, 470. 
 Vandenburgh v. Hendricks, 375. 
 Vandenburgli v. Truax, 14, 19. 
 Vanderbilt v. Richmond Turnpike Co., 
 
 44, 51, 490. 
 Vanderpoel v. Van Allen, 373. 
 Vandeventer v. N. Y. & New Plaven R. 
 
 R. Co., 196. 
 Van Hoozer v. Cory, 541, 543. 
 Van Ness v. Pacard, 374. 
 Van Rensselaer v. Kidd, 394. 
 Van Sandan v. Turner, 336. 
 Van Slyck v. Snell, 116. 
 Van Steenburgh v. Kortz, 434. 
 Van Wyck v. Vine, 431. 
 Vaughan v. Rhodes, 34. 
 Vinal V. Burrill, 553. 
 Vincent v. Cornell, 556. 
 Vincent v. Stinehour, 3, 4, 7. 
 Vine V. Saunders, 40. 
 Vivian v. Jenkin, 613. 
 Von Ketler v. Johnson, 331. 
 Von Latham v. Libby, 375, 376. 
 Voorhis v. Freeman, 373. 
 Vosburgh v. Monk, 23, 65. 
 Vosburgh v. Welch, 60, 391, 633. 
 Vose V. Stickney, 449. 
 Vredenburgh v. Hendricks, 372, 391. 
 
 Waddell v. Cook, 459, 461. 
 
 Wadleigh v. Jauvrin, 370, 374, 375, 586. 
 
 Wadsworth v. Treat, 341, 348, 349. 
 
 Waffle V. Dillenbeck, 360. 
 
 Wagener v. Bell, 613. 
 
 Wagener v. Bill, 39. 
 
 Waggoner v. Corlew, 518. 
 
 Wakefield v. Fairman, 140. 
 
 Wakeman v. Lindsey, 94. 
 
 Wakeman v. Robinson, 4, 137. 
 
 Walcot V. Pomeroy, 513, 531, 522. 
 
 Walden v. Davison, 490. 
 
 Waldron v. Hanpt, 581. 
 
 Waldron v. Hopper, 191. 
 
 Wales V. Hart. 83. 
 
 Walker v. Borland, 637. 
 
 Walker v. Brown, 336. 
 
 Walker v. Cochran, 497. 
 
 Walker v. Farnsworth, 601. 
 
 Walker v. Fitts, 151, 461. 
 
 Walker v. Foxcroft, 490, 492. 
 
 Walker v. Haskell, 492. 
 
 Walker v. Hitchcock, 83. 
 
 Walker v. Lovell, 474. 
 
 Walker v. Sawyer, 382. 
 
 Walker v. Sherman, 370, 586. 
 
 Walker v. Wilkinson, 518. 
 
 Walker V. Woolcott, 111. 
 
 Wall V. Lee, 158, 159. 
 
 Wall V. McNamara, 198, 289. 
 
 Wall V. Osborn, 24. 
 
 Wallace v. Barker, 412. 
 
 Wallace v. Brown, 100. 
 
 Walley v. M'Connell, 275. 
 
 Wallis V. Truesdell, 388, 624. 
 
 Wallsworth v. McCullough, 57, 335. 
 
 Walrath v. Barton, 81. 
 
 Walsby v. Oakley, 219. 
 
 Walsh v. Adams, 459. 
 
 Walsh V. Bishop, 106. 
 
 Ward V. Eyre, 363. 
 
 Ward V. Green, 302. 
 
 Ward V. Henry, 641. 
 
 Ward V. Macauley, 512, 513, 551. 
 
 Ward V. State, 244. 
 
 VYarden v. Bailej', 198. 
 
 Ward's Case, 126. 
 
 Warfield v. Waiter, 639. 
 
 Warner v. Bacon, 79. 
 
 Warner v. Ostrander, 639. 
 
 Warner v. Riddiford, 283. 
 
 Warner v. Shed, 300. 
 
 Warner v. Stockwell, 306. 
 
 AVarren v. State, 122. 
 
 Warwick v. Foulkes, 353. 
 
 Washburn v. Hale, 201. 
 
 Wasson v. Canfield, 339, 332, 347. 
 
 Waterbury agst. Lockwood, 473. 
 
 Waterbury agst. WesLervelt, 402. 
 
 Waterman v. Hall, 33. 
 
 Waters v. Daines, 503. 
 
 Watkins v. Gaston, 235, 238. 
 
 Watrous v. Steel, 153. 
 
 Watry v. Ferber, 242. 
 
 Watson V. Bodell, 316. 
 
 Watson V. Christie, 240, 262. 
 
 Watson V. Watson, 328, 433. 
 
 Weathrell v Howard, 214. 
 
 Weaver v. Bush, 140, 141, 147. 
 
 Weaver v. Ward, 3. 
 
 Webb V. Allen, 110. 
 
 Webb V. Beavan, 17. 
 
 Webb V. Bulger, 261. 
 
 Webb V. Paternoster, 38, 381. 
 
 Webb V. Portland Manf. Co., 13.
 
 TABLE OF CASES CITED. 
 
 XXXV 
 
 Webb V. Steele, 94. 
 
 Webber v. Gray, 430, 432. 
 
 Webber v. Kenny, 354. 
 
 Webber v. Liversuch, 317. 
 
 Weber v. Ferris, 400. 
 
 Webster v. Watts,''156, 218. 
 
 Weed V. The Panama R. R. Co.. 42. 
 
 Weekly v. Persons, 231. 
 
 Weet V. Trustees of the Village of 
 
 Brockport, 52. 
 Wehleagst. Butler, 85, 391, 396. 407, 633. 
 Wehle V. Haviland, 633. 
 Weitzel v. Marr, 515. 
 Welch V. Clark, 458, 562. 
 Welch V. Durand, 7. 
 Welch V. Whittemore, 537, 544. 
 Weld V. Oliver, 458, 639. 
 Weller v. Goyton, 94. 
 Wellington v. Drew, 385. 
 Wellington v. Sedgwick, 457, 
 Wells V. Banister, 378. 
 Wells V. Battelle, 502. 
 Wells V. Howell, 33. 
 Wells V. Jackson, 298. 
 Wells V. The Steam Nav. Co.. 162. 
 Welsh V. Cooper, 23. 
 Wentworth v. Bullen, 327. 
 West V. Baxendale, 270, 348, 350. 
 West V. Bolton, 403. 
 West V. Brock, 261. 
 West V. Nibl^s, 613. 
 West V. Rousseau, 223. 
 West V. Shocklv, 392. 
 West V. Smallwood, 275, 2S3, :S?2. 
 Westervelt v. Pinckney, 420 
 Westfall V: Preston, 495, 498. 
 West River Bank v. Gorham, 411. 
 Westwood V. Cov»'ne, 79, 330. 
 Wetherbee v. Ellison, 376. 
 Wetmore v. Campbell, 463. 
 Wetzell v. Waters, 397. 
 Whatley v. Murrell, 248. 
 Wheat V. Croom, 84. 
 Wheat V. Lowe, 247. 
 Wheeler v. Lampman, 629. 
 Wheeler v. McFarland, 462. 
 Wheeler v. Moore, 2. 
 Wheeler v. Whiting, 141, 282, 28:5. 383. 
 Wheelock v. Archer, 26. 
 Wheelwright v. Depeyster, 399. 
 Whelan v. Whelan, 631. 
 Whitaker v. English, 63. 
 Whitcomb v. Cook, 54, 273, SI"). 
 Whitcomb v. Tower, 523. 
 White V. x\rnclt, 374. 
 White v. Brooks, 586. 
 White V. Chadbonrn(!, 583. 
 White V. IIill, 93, 96. 
 White V. Morris, 440. 
 White V. Morton, 459. 
 
 White V. Mosely, 85. 
 
 White V. Phelps, 460. 
 
 White V. Philbrick, 98, 601. 
 
 White V. Webb, 539, 642. 
 
 Whitehouse v. Atkinson, 646, 
 
 White Water Valley Canal Co. v. Dow. 
 
 618. 
 Whitfield V. Johnston, 434. 
 Whiting V. Brastow, 374. 
 Whiting V. Johnson, 590. 
 Whitmore v. Bowman, 588, 616. 
 Whitmore v. Delano, 38, 116. 
 Whitney v. Farwell, 445. 
 Whitney v. Hitchcock, 256, 257. 
 Whitney v. Ladd, 402. 
 Whitney v. Lynde, 577. 
 Whitney v. Whitney, 453. 
 Whiten V. Chicago &c. R. R. Co., 55, 201. 
 Whittemore v. Gibbs, 557. 
 Whittier v. Varney, 621. 
 Wickliffe v. Saunders, 390. 
 Wies agst. Fanning, 85. 
 Wiffln V. Kincard, 1 25. 
 Wiggin V. CofEn, 253. 
 Wilbraham v. Snow, 79, 511. 
 Wilcox V. Sherwin, 52, 503, 605. 
 Wilcox V. Smith, 488. 502. 
 Wilderman v. Sandusky, 111. 
 Wildman v. Norton, 609. 
 Wilds V. Blanchard, 409. 
 Wiley V. Yale, 75. 
 Wilford v. Grant, 42. 
 Wilkes V. Dinsman, 184. 
 Wilkes V. Jackson, 63. 
 Wilkins v. Gilmore, 104. 
 Willard v. Baker, 32. 
 Willard v. Kimball, 437. 
 Willard v. Lull, 578. 
 Willard v. Rice, 362, 365. 
 Williams v. Bacon, 287, 
 Williams v. Brace, 23, 57. 
 Williams v. Crosswell, 280. 
 Williams v. Currie, 117. 
 Williams v. Gaines, 230. 
 Williams v. Ives, 105, 475, 627, 644. 
 Williams v. Ivey, 329, 
 Williams v, Jones, 125, 312. 
 Williams agst. Levris, 520. 
 Williams v. Miller, 448. 
 Williams v. Millington, 554. 
 Williams v. Mostyn, 13. 
 Williams v. Powell, 464. 
 Williams v. Price, 87. 
 Williams v. Sheldon, 65. 
 Williams v. Smith, 304 
 Williamson v, Dow, 505, 
 Williamson v, Fischer, 66. 
 Willis V. Forrest, 238. 
 Wills V. Whittier, 322. 
 Wilmarth v. Burt, 302, 307, 440.
 
 XXXVl 
 
 TABLE OF CASES CITED. 
 
 Wilson V. Barker, 28, 67, 88G, 511, 567. 
 
 Wilson V. Franklin. 26. 
 
 Wilson V. Gamble, 79. 
 
 Wilson V. Hooper, 401, 575. 
 
 Wilson V. Johnson, 589. 
 
 Wilson V. Mnckcnzie, 199. 
 
 Wilson V. Miickreth, 36, 513. 
 
 Wilson V. Martin, 551, 5G1. 
 
 Wilson V. The Mayor &c.,.184. 
 
 Wilson V. McElroy, 637. 
 
 Wilson V. Middleton. 257. 
 
 Wilson v. Mower, 94. 
 
 Wilson V. Seavey, 477. 
 
 Wilson V. Smith, 35. 
 
 Wilson V. Tummon, 28, 393. 
 
 Wilson V. Wentworth, 382. 
 
 Wilson V. Wilson, 35, 542. 
 
 Wilson V. Young, 237, 238. 
 
 Wilton Manf. Co. v. Butler, 432, 438, 
 
 439, 468. 
 Wingate v. Smith, 362. 
 Winship v. Ncale, 514. 
 Winslow V. Merchants' Ins. Co., 371, 372. 
 Winstow's case, 370. 
 Winter v. Peterson, 252. 
 Winterburn y. Brooks, 216. 
 Wintei-mute v. Light, 374. 
 Wintringham v. Lafoy, 12, 382, 462. 
 Wise V. Hodsoll, 209. 
 Wise V. Withers, 433, 501. 
 Withers v. Henley, 317. 
 
 Withers v. Parker, 310. 
 
 Witherspoon v. Woody, 631. 
 
 Withington v. Eveleth, 496. 
 
 Wolcott T. Root, 482. 
 
 Wolff V. C«hen, 224, 241, 257. 
 
 Wood V. Kinsman, 308. 
 
 Wood V. Lane, 313. 
 
 Wood V. Leadbitter, 161. 
 
 Wood V. Morcwood, 618. 
 
 Woodall V. McMillan, 843. 
 
 Woodbridge v. Conner, 390, 624. 
 
 Woodham'v. Gelston, 638. 
 
 Wooding V. Oxley, 282. 
 
 Woodman v. Howell, 152. 
 
 Woodman v. Tufts, 12. 
 
 Woodruff V. Halsey, 408, 513, 535, 53^ 
 
 586. 
 Woodruff V. Woodruff, 122. 
 Woods V. Hanks, 586. 
 Woods V. Davis, 309. 
 Woodward v. Gates, 427. 
 Woodwaid v. Walton, 180, 182. 
 Woolen V. Wright, 27, 393. 
 Wooley V. Carter, 636. 
 Wooley V. Edson, 608. 
 Wooisey v. Seely, 570. 
 Wooster agst. Parsons, 302. 
 Wort V. Jenkins, 104. 
 Worth V. Terrington, 88, 89, 337. 
 Wright V. Court, 124. 
 Wright V. Lathrop, 62. 
 Wright V. The State, 515. 
 Wright V. Wilcox, 44. 
 Wright V. Wilson. 266. 
 Wright T. Woolen, 511. 
 Wylie V. Smithmerman, 647. 
 Wyraan v. Dorr, 548. 
 Wynne v. Anderson, 62. 94. 
 
 Yale V. Dederer, 190. 
 Yale V. Saunders, 640. 
 Yale V. Seely, 378. 
 Yates V. Camsew, 569. 
 Yates V. Joyce, 530. 
 Yates V. Lansing, 320. 
 Yates v. Wormell, 457. 
 Yost V. Ditch. 231. 
 Young V. Edwards, 293. 
 Young V. Higliland, 219. 
 Young V. Hitchen, 357. 
 Young V. Hyde, 496. 
 Young V. Mertens, 636. 
 Young V. Rummell, 85. 
 Young V. Spencer, 13. 
 Young V. Walker, 445. 
 
 Zimmerman v. Chrisman, 200. 
 Zimmerman v. Hekar, 617.
 
 BOOK I. 
 
 TRESPASS IN GENEEAL. 
 
 CHAPTER I. 
 
 DEFINITION AND NATURE OF TRESPASS. 
 
 1. Trespass defined. 
 
 2. Acts which may or may not constitute trespass, 
 
 3. Infringement of right without specific injury. 
 
 4. Motive or intention. 
 
 5. Liability for consequences of wrongful act. 
 
 6. Inciting or aiding the commission of trespass. 
 
 7. Ratification and adoption of wrongful act. 
 
 8. Indemnity of innocent wrong-doer. 
 
 1. Trespass defined. 
 
 § 1. Trespass, in its broader sense, signifies the voluntary 
 transgression of any divine law or command ; — the violation 
 of any rule of rectitude to the injury of another. Literally, 
 it means to pass beyond ; hence, to enter unlawfully upon 
 the land of another.^ In its usual legal acceptation, it is 
 a wrong done with force, to the absolute rights of personal 
 liberty and security, and to those of property corporeal. It 
 sometimes includes injuries to the relative rights of persons ; 
 as beating, wounding, or imprisoning a wife or servant.^ 
 
 § 2. Trespass is also the name of an action for the recov- 
 
 ^ery of damages for a wrong committed with immediate force, 
 
 as distinguished from trespass on the case which lies where 
 
 the injury is consequential, and not committed with direct 
 
 ' Webster's Diet. ^ Bouv. L. Diet. 
 
 Vol. I.— 1
 
 2 DEFINITION AND NATURE OF TRESPASS. §§ 3, 4. 
 
 force.^ * The force may he actual, as by an attack ; or im- 
 plied, as by a wrongful, tbougli peaceable entry on land.^ 
 
 2. Acts which may or may not constitute trespass. 
 
 § 3. Mere words cannot constitute a trespass.^ But 
 words or acts of provocation may have the effect of a breach 
 of the peace when they tend immediately thereto.^ And 
 proof of the language of the defendant, while committing a 
 trespass, is proper to qualify the act, and to show with what 
 spirit it is done.^ We shall hereafter have occasion to show 
 the important bearing which words often have in determining 
 the character of the alleged wrong. A single example must 
 suffice for the present. In Merest v. Harvey,^ the defendant, 
 in trespassing upon the plaintiff's land, used very intem- 
 perate language, threatening, in his capacity of magistrate, to 
 commit the plaintiff, and defying him to bring an action. 
 The witnesses described his conduct as being that of a 
 drunken or insane person. The plaintiff behaved with cool- 
 ness and propriety. A verdict having been found for the 
 plaintiff for 500/., Avhich was the Avhole amount of damages 
 claimed in the declaration, the court refused, on motion, to 
 set it aside for excess. 
 
 § 4. If a person entirely deprived of the command of 
 his actions causes an injuiy, he is not accountable therefor. 
 As if, from motives of self preservation, he should jump out 
 of the window of a house on fire and fall against another ; or 
 if, in endeavoring to save another from inevitable destruction, 
 he should run against some one ; or if he were deprived of all 
 control over his will by idiocy or insanity, and should injure 
 
 ' IbkL ; Dale Manf. Co. v. Grant, 84 N. J. Ul 
 
 " Bnoom's Com. on Com. L. 4th cd. p. 135. 
 
 ' Wbeeler v. Moore, W^rigbt's R. 408 ; post, ^ 145. 
 
 " Boyleston v. Kerr, 2 Daly, 220. 
 
 ' Adaxns v. Rivers, 11 Barb. 390. " 5 Taunt. 442. 
 
 * In Delaware, the revised code, 379, abolishes the common law distinction 
 between trespass and trespass on the case, in respect to the question whether the 
 injury complained of is immediate or consequential (iiailey v. Wiggins, 1 Hous- 
 ton, 299), See pest. § 71, note.
 
 §^ 5, G. ACTS WHICH JIAY OR MAY NOT CONSTITUTR. 3 
 
 another, it would be deemed an involuntary trespass, for 
 w^hich no recovery could be had.^ But where it is claimed 
 that there was a necessity for an act wdiich would otherwise 
 be illegal, it must, of course, be proved that such necessity 
 existed at the time, and that every possible care ^vas taken 
 to avoid the doing of injury.^ 
 
 § 5, The grounds of exemption from liability are not 
 confined to the extreme cases we have mentioned; but are 
 equally applicable to every instance of unavoidable accident 
 in the prosecution of a lawful act, where no blame is im- 
 putable to the person doing the injury.^ In Goodman v. 
 Taylor,* which w^as an action of trespass for an injury done 
 to a horse by a pony and chaise running against it, it was 
 proved, on the part of the defendant, that his w^ife was hold- 
 ing the pony by the bridle, when a punch and judy show 
 came by and frightened the pony, which ran off with the 
 chaise. It was held that, if true, this was a good defense. 
 The same was held in an action by a gas company, for injury 
 to tbeir lamp-posts set up along the streets of a city ; it 
 being j^roved that the defendant was driving with proper 
 care, and that the injury was caused by the crowded, slip- 
 pery, and uneven condition of the street.^ * ^ 
 
 § 6. Unavoidable accident, in legal phraseology, does 
 
 ' Vincent v. Sfcinehour, 7 Vt. 63; l)ut see Gates v. Miles, 3 Conn. 64. 
 - Burton v. M'Clellan, 2 Scam. 434. 
 
 ' Com. Dig Battery, A ; Davis v. Saunders, 2 Chit. R. 639 ; Brown v. Ken- 
 dall, 6 Cush. 292. 
 
 '' 5 Car. & P. 410; and see Gibbons v. Pepper, 4 Mod. 405. 
 
 * Roche V. Milwaukee Gas Co. 5 Wis. 55. 
 
 * In Roche v. Milwaukee Gas Co., supra, the court alluded to anotlier circum- 
 stance in favor of the defendant, which was, that he was a mere passenp^er in the 
 waj^on, havin.LC no interest whatever in it, or in the horse, and neither aiding nor 
 in any manner consenting to the occirrv^'uce. 
 
 In Weaver v. Ward, Hob. 13t, which w is an action for assault ami battery, 
 the defendant pleaded that he was a soldier, that he and the plaintiff were 
 under one captain, and that in must'jring be dischnrged his gun, \\\\\chcns>fa,lit'')\ 
 et per iiifortu Ilium:, et routni rohinfdtiiu kkoih, did liurt the plaintiff. Ir wa; held 
 that if the defendant had plead-d tlnit he; coukl not have avoided it, or that the 
 plaintiff had ran across the gun when it was discharged, or had set forth the cir- 
 cumstances, so that it might appear to the court to be inevitable, such a plea 
 would have been a sufficient justification.
 
 4 DEFINITION AND NATURE OF TRESPASS. § 6. 
 
 not mean an accident winch it was physically impossible, in 
 the natnre of thinos, for the defendant to have prevented. 
 All that is meant is, that it was not occasioned in any degree, 
 either remotely or dii-ectly, by the want of such care or skill 
 as the law holds every man bonnd to exercise.^ In Vincent 
 V. Stinehoiu',^ which was an action for trespass for driving 
 against and over the plaintiff with a horse and carriage, the 
 following instructions to the jury, in the court below, were 
 held correct : " Every man in pursuing his lawful business, 
 must use the prudence of the most prudent kind of men ; and 
 if there Avas any want of the exercise of this prudence on the 
 part of the defendant, either in using an unsafe horse, or in 
 ■the manner of driving and using the horse, whereby the 
 event happened, the defendant must be answerable, and the 
 jury w411 assess the damages ; but if the jury are convinced 
 that there was no such neglect or want of prudence, but that 
 it was the result of unavoidable accident on the part of the 
 defendant, they will find for the defendant." The rule was 
 well illustrated in Wakeman v. Robinson.^ The defendant's 
 horse was young and spirited, and he drove him without a 
 curb, in consequence of which he \vas less easily managed ; 
 in that, there was negligence. The defendant, in his alarm, 
 pulled the wrong rein ; in that, there was want of skill. On 
 either, or both these o-rounds, the defendant was liable for 
 the consequences. But if his horse had been properly har- 
 nessed and skilfully managed, and the accident to the 
 plaintiif had still occurred, it would have been held inevit- 
 able ; although the defendant had the physical power to have 
 guarded against it, eithei' by entirely stopping his horse the 
 moment he saw the plaintiiTs wagon, or by driving at a very 
 Slow and moderate pace. But this is a degree of caution 
 which the law does not exact.'" 
 
 ' Dygert v. Bradley, 8 Wend. 469. 
 
 " 7 Vt. 62. ' 1 Bing. 213. 
 
 * Neither the highway oflScers of the towns, nor the directors of plank-road 
 companies, are required to grade the whole space within the limits of the high- 
 way, so tjiat a traveler can safely drive his carriage over every part of it. In 
 ordinary cases, if they provide a pathway for carriages of suitable width, and so
 
 § 7. ACTS WHICH MAY OR MAY KOT CONSTITUTE. 5 
 
 § 7. If any blame be imputable to the defendant, though 
 he did not mean to injure the plaintiff, or any other per- 
 son, lie is liaVjlc for the damages sustained, as in the case of 
 the accidental discharge of a gun which a person has in his 
 liaud,^ a great degree of care being demanded in the use of 
 of such a weapon ; or the falling against a stove, and thereby 
 causing hot water to scald another, by a person who is 
 intoxicated.^ '"* 
 
 define it as that there shall be no reasonal)le danger of its being mistaken, they 
 will not be in fault if a traveler chooses to try an experiment upon the part 
 which is not thus prepared for traveling. Where a road is so constructed or 
 altered, as to present at one point two paths, both of which exhibit the appsai"- 
 auce of having been used l)y travelers, and one of them leads to a dangerous 
 precipice, v.hiic the otiier is quite safe, it is the duty of those having charge of 
 the road to imiicate in a manner not to be mistaken, hy day or by niglit, that 
 the unsafe path is to be avoided ; and if it cannot be otherwise done, to ()ut up 
 suc!i an obstruction as will turn the traveler from the wrong track (Johnson v. 
 Whitefield, 6 Shepl. 280; Packard v. Packard, 16 Pick. 191; Shepardson v. In- 
 h:ibs. of Colerain, 13'Metc. 55; Rice v. The Town of Montpelier, 19 Vt. 470; 
 Ireland agst. Oswego. Hannibal and Sterling Plank R. Co. 13 N. Y. 52(3). 
 
 "I am bound to iiave the approach to my house sufficient for ail visitors on busi- 
 ness or otherwise. Bu.t if a crowd gathers upon it to witness a passing parade, 
 and it Ijreaks down, thougli it may be shown not to have been sufficient even for 
 its ordinaiT use, I am not liable to one of the crowd. I owe no duty to him. If 
 a traveler by foot, on the open track of a railroad crosses a bridge, which ought 
 to be, but is not. in its ordinary use, strong enough to bear a locomotive and 
 train of cars, and a decayed board breaks down under him, the company are not 
 liable to him, for thev owe him no dutv " (Sharswood, J., in Gillis v. Pennsyl. 
 R. R. Co. 59 Peun. St. R. 129j. 
 
 In Phila. and Reading R. R. Co. v, Huramell, 44 Penn. St. R. 375, the 
 plaintiff below was a boy of tender years to whom no contributory negligence 
 could be imputed. He was on the track of a railroad, not at a crossing. It was 
 held that the railroad company as to persons so on the track, were not bound to 
 give any warning at starting. Strong, J., remarked that there was "as perfect 
 a duty to guard against an accidental injury to a night intruder into one's bed 
 chamber, as there is to look out for trespassers upon a railroad, where the public 
 has no right i(j be." 
 
 ' Morgan v. Cox, 22 i\Io. 373; Gennings v. Fundeburg, 4 McCord, 161. 
 
 '■' Sullivan v. Murphy, 2 Miles, 298. 
 
 * Gates agst." Miles, 3 Conn. 04, was an action of trespass for injuring the 
 plaintiff's sloop by running into her with another vessel. It appeared that the 
 (ielendant was })roceeding with tlie sloop Susan through Long Island Sound to 
 New Haven, and that the plaintift' was navigating the sloop Mary, in an opposite 
 din'c;ion. to New York. When distant from each other about thirty rods, the 
 defendant connu'inded the man at the helm of the Susan to h/^ff'; in obedience to 
 which the hebnsman suddenlv luffed and turned the Susan to windward, and in 
 consecjuence of tlie direction thus given, she directly struck the larboard quarter 
 of the Mary with great violence, and caused the injury for which the action was 
 brought. It was held that trespass was the proper remedy, whether the act com- 
 plained of was wilful or resulted from want of skill and care. A verdict having 
 been directed for the defendant in the court below, on the ground that the 
 plaintiff, in bringing an action on the case, had misconceived his remedy, the 
 Supreme Court, in denying a motion for anew trial, said: "If it had appeared
 
 G DEFINITION AND NATURE OF TRESPASS. § 8. 
 
 . § S. If a person commit a voluntary act winch Le is 
 nr.der no obligation to do, lie is liable for any injury that 
 
 lb;it the wimls and waves baffled the defindant's purjiose, and counteracted his 
 eliorts. the motion woidd have presented a case ver}' difterent from the one be- 
 fore the court. On this subject tliere is a total silence; and had a fact so im- 
 jiortant been made to api>ear. it would not liave been omitted in tiie statement 
 made for tlie purpose of reviewing the former decision. Tlie damage then was 
 efleeted by a stroke from the Susan : the immediate result of force originally and 
 unintermittingly applied by the defendant. Exclude from consideration the 
 possible eti'ect of the winds and waves, and bear constantly in mind that the 
 elements Titither counteracted the exertions of the defendant, nor operated 
 otherwise than in entire subserviency to his will, and what is the result { — that 
 the helm and the sails, the winds and the waves, were all his instruments obedient 
 to his wishes, and that the Susan was directed by him in the course which ho 
 thought most eligible. From the moment t! e liclm. I)y the defendant's direc- 
 tion, turned the Susan into that path in which the injury was accomplished, 
 there was no intermediate agent which varied the course intentionally pursued. 
 "Were it said that a person turned his horse, and, in ]iursuanfe of the direction 
 given, ran over a child and broke his arm, there would exist no doubt whether 
 the damr.ge was imputable to his act. If the misfortune resulted from the 
 impracticability of controlling the horse, it would change the nature of the case. 
 On these facts I am extremely clear that tlie only legal remedy is tresspass ci et 
 armis.''^ Chapman, J., diiis'ntaig. 
 
 Dygert v. Bradley, 8 Wend. 469. was an action of trespass against the master 
 of a canal-boat for running his boat against the boat of the plaintifi", wherein' 
 the side of the ph\intif}''s boat was broken in, and goods on board damaged. 
 The plaintifY's boat was lying to, on the heel-path side of the canal. The boat 
 of the defendant ^^as a large lake-boat, and heavily laden. It appeared that al- 
 though the canal was not quite as wide where the plaintiff's boat lay as it was 
 some distance below, yet that several b(nits had passed her while in that place. 
 It was proved that there was not room for the boat of the defendant to pass that 
 of the ]ilaintiff at the place where it lay, with the depth of water then in the 
 canal; but that neither the plaintitl nor defendant was aware of that fact. At 
 the trial at the circuit, the judge charged that the plaintift', when he stopped 
 his boat uprn the canal, was bound to select, as his station, a safe place, and 
 such an one as would admit the passage of other boats, and if he selected a 
 hazardfius one, and an injury was sustained l)y him in consequence of his exposed 
 ^taticn, he must bear the loss; that if tlie juiy believed that the defendant had 
 been guilty of negligence, or that he intended to run his boat against the plaint- 
 itl "s, they should tind ftr the plaintiff: but that if the defendant, in endeavoring 
 to pass, managed his boat in a skilful manner, and the injury arose from the ex- 
 posed situation of the plaintitl', or from mere accident, then they ought to find 
 for the defendant. A verdict having been found for the defendant, a new trial 
 was granted, because the circuit judge, in his charge, excluded from the consid- 
 eration of the jury, or. at all events, omitted to present to them, the question 
 whether the defendant was not bound to know, under all the circumstances of 
 the case, that his boat could not pass without hazard, and, if he was, whether 
 he ought not to have proceeded more cautiously. Sutherland, J., in delivering 
 the opnuion of the Suiireme Court, said: " No actual fault seems to be imputable 
 to the defendant, and if lie is to be held responsible, it must be on the ground 
 that the accident was not inevitable, inasmuch as the power by which the boat 
 was propelled was entirely under his control, and he was bound to know or 
 ascertain whether he could pass with safety before he made the attempt. The 
 liability of the defendant, in the case at bar. appears to me to depend upon the 
 question whether he was not bound to know that from the state of the water in 
 the canal at that time, and from the size of his boat, and her being heavily 
 laden, lie could not pass the plaintiff's boat without hazard; if so, it was his
 
 § 8. ACTS WHICH MAY OR MAY NOT CONSTITUTE. 7 
 
 may happen to another, even tlirongh accident. The casen 
 of a man turning I'ound and knocking down another whom 
 he did not see, and the shooting of an arrow at a mark, which 
 glanced, are of this class ; the acts being purely voluntary.^ 
 Where a master directed his servant to lay some ruljbish 
 near his neighbor's wall, but so that it might not touch the 
 wall, and the servant exercised Qrdinary care in obeying the 
 orders of his master, but some of the ruljbish fell against the 
 wall, it was held that the master was liable as a trespasser.^ 
 A., with B.'s consent, cut wood on B.'s land, and left it lying 
 there, and B., in order to clear up another part of his land, 
 and with no intention of burning A.'s wood, set fire to some 
 brush, and the fire escaped from B.'s control and ran on t<> 
 the land where the wood of A. was, and consumed it. It 
 was held that an action of trespass might be maintained by 
 A. against B. for the injury.*^ * 
 
 duty, either not to have nifide the attempt to pass, or to have proceeded so 
 slowly and cautiously that no injury could have been produced from the col- 
 lision. The defendant had the entire control of the speed of his boat, and, al- 
 though it appears that her motion was not rapid, it was not as slow as it might 
 and ought to have been, if he was bound to know that the attempt to pass was 
 hazardous. Tlie case, I think, should have been put to the jury upon these prin- 
 ciples." 
 
 ' Vincent v. Stinehour, 7 Vt. 63; Gates v. Miles, 3 Conn. 64, and cases cited ; 
 Loubz V. Hafner, 1 Dev. 185. 
 
 •■' Gregory v. Pi])er, 9 B. & C. 591 ; and see Welch v. Durand, 3G Conn. 183. 
 
 = Jordan v. Wyatt, 4 Gratt. 151. 
 
 * In Brown v. Neal, 36 Maine, 407. which was an action of trespass qiwre 
 clausum committed in the construction of a road, the court, per Shepley, C. .J., 
 in overruling exce])tions to the verdict, said : "When is a trespass to be re- 
 garded as involuntary or by negligence or mistake ? It may be involuntary or 
 committed l)y mistake, when a person believes that he is doing an act upon his 
 own land, or upon the land of another by permission, wdien he in fact is not, but 
 is doing it upon land on which he had no right to enter. It may be committed 
 througli negligence, when a person designs to do an act upon land on which he 
 might lawfully do it, and from want of proper care or attention, he passes on to 
 the land of another, claiming no right, and having no intention to do so. It 
 cannot be involuntary or by mistake, when one knowingly enters upon the laud 
 of another, claiming right to do so. If there be neglect, or mistake in such 
 case, it must arise from want of care to ascertain whether he had any legal rigiit 
 to do so, or from a mistake of the law respecting it." Hathaway, J., did not 
 concur in the foregoing remarks of the Chief Justice, but submitted his views as 
 follows : " If a man get over the line between him and his neighbor by mistake, 
 and cut a tree, sup|)osing he is on his own land — or if he suppose he has permis- 
 sion, when in fact he has not, the act is voluntary; the trespass is involuntary. 
 He did not intend to do wrong. In this case, the defendant made the road, 
 supposing he had lawful permission. He was mistaken. True, he neglected 
 to inform liimself that the road was not legally made out ; and so, the man
 
 8 DEFINITION AND NATURE OF TRESPASS. §§ 9, 10. 
 
 § 9. An authority in law affords a justification for all 
 acts and trespasses committed in the exercise of it, so long 
 as the authority has not been abused or exceeded. An ac- 
 tion will not therefore lie against a judge for a wrongful 
 commitment or an erroneous judgment, nor for any act done 
 by him in his judicial capacity ; nor against a grand juryman 
 for wrongfully presenting and finding a bill of indictment ; nor 
 against a petty juryman for a wrong verdict ; nor against a 
 coroner, who is a judicial officer, for any matter done by him 
 in the exercise of his judicial functions. The general rule as 
 respects judges and judicial officers is, that if they do any act 
 beyond the limit of theii' authority causing injury to another, 
 they thereby subject themselves to an action for damages ; 
 but if the act done be within the limit of their authority, 
 through an erroneous or mistaken judgment, they are not 
 liable to an action.^ 
 
 § 10. Where persons do not act judicially, but have only 
 a discretion confided to them, an erroneous exercise of that 
 discretion will not make them liable, if they have due legal 
 authority and power to act in the matter.^ Consequently, if 
 an order has been made in a cause in court over which the 
 court has a general jurisdiction, the ministerial officer who 
 executes it, is not responsible ; and the clerk of the court is 
 likewise protected so long as he confines himself to the min- 
 isterial duties of his office.^ * For the same reason, it is a 
 
 who got over the line neglected to inform himself where the line was. and he 
 who cut without permission, supposing he hud one, neglected to ascertain the 
 fact. There is a distinction in the cases, but too shadowj'. I think, to make a 
 difference.'' 
 
 In North Carolina, where a person occupying land, trespassed on the adjoin- 
 ing premises through ignorance of the true boundar\-, hut disclaimed title, and 
 tendered reasonable amends before action brought, it was lield that the tres- 
 passer was protected under the statute (Rev. bts. ch. '61, §83; Blackburn v. 
 Bowman, 1 Jones* Law, N. C. 441). 
 
 ' Hammond v. How-ell, 1 Mod. 184; 2 Mod. 218; Doswell v. Impev, 1 B. & 
 'C. 163 ; Gahan v. Lafitte, 5 Moore P. P. C. 382. 
 
 ^ Ferguson v. Earl Kinnoul, 9 CI. & Fin. 290. 
 
 = Andrews v. Harris, 1 Q. B. 3; Dews v. Riley. 11 C. B. 434. 
 
 * Where a writ of haheas corpus, issued at the instance of a person in custody, 
 is afterwards countermanded by him without the knowledge of the officer who 
 executes it, the officer will not be liable. Action for assaulting the plaintiff and
 
 § 11. ACTS WHICH MAY OR MAY NOT CONSTITUTE. 9 
 
 justification of the acts of a United States officer that they 
 were done under hiwful public orders ; ^ but not where the 
 orders were given without authority.^ 
 
 § 11. The lawful character of an occupation, or the care 
 with w^hich it is carried on, will not defeat a right of action 
 by those whose enjoyment of life and property is disturbed 
 in consequence of the mode or means of conducting such 
 occupation. The right, for instance, to use a steam engine 
 on one's own premises, does not depend upon its utility and 
 lawfulness, or the purpose for which such use is resorted to, 
 nor upon the final results of the use. The intermediate in- 
 jury before such results are obtained, may make the use un- 
 lawful.^ An act may be lawful in itself, and continue to be 
 so until injury has been inflicted, when it immediately 
 becomes unlawful, and an action will lie therefor ; as w^here 
 a person sinks mines, and digs in his own land, or kindles a 
 fire thereon, doino; no damag;e in the first instance to his 
 neighbor, but afterward causing his neighbor's land to slide 
 into the artificial hollow, or the neighbor's house to be 
 burned by the unexpected spreading of the fire,'* Where the 
 plaintifi' and defendant, who were porters on the custom- 
 house quay, had each small boxes in a hut on the quay for 
 
 compelling him to go to the Arches Court. Plea that the defendant was keeper 
 of tlie queen's prison, and the plaintiff a prisoner there; that a Avrit of habeas 
 corpus issued, commanding tlie defendant to have the body of the plaintiff at the 
 Arches Court ; that the plaintiff refused to go, wherefore the defendant com- 
 pelled him, &c. Keplication, that the writ issued at the instance of the plaintiff, 
 and no other person, as the defendant w^ell knew, and that the plaintiff gave 
 notice to the defendant not to execute. Rejoinder, that the defendant did 
 not know that the writ issued at the instance of the plaintiff, and no other per- 
 son. It was held that this issue was not supported \>j evidence that the plaint- 
 iff's agent informed a person, wlio was clerk of tlie papers and deputy keeper of 
 the prison, that the writ was issued by the plaintiff, and that he was not to be 
 taken before the Court of Arclies, the writ itself not containing on the face of it 
 the name of the party at whose instance it was sued out (Herring v. Hudson, 
 :i Exch. 107; 18 L. J. Exch. 2.S). 
 
 An action of trespass cannot be maintained for injury committed under orders 
 of a military officer in a case of extreme necessity (Barrow v. Page, 5 Hayw. 97). 
 
 ' Durand v. Hollins, 4 Blatchf. C. C. 451. 
 
 " Lively v. Ballard, 2 W. Va. 49G. = .McKeon v. See, 4 Robertson, 449. 
 
 * Bonoini v. Backhouse, Ell. Bl. & Ell. 022; 28 L. J. Q. B. 378: Smitii v. 
 Tliackerah, L. R. 1 C. P. 564; Filliter v. Phip;)ird, 11 Q. B. 347; Tai)ervil v. 
 Stamp, 1 Salk. 13; Clark v. Foot, 8 Johns. 421.
 
 10 DEFINITION AND NATURE OF TRESPASS. § 12. 
 
 storing small parcels of goods until they could be put on 
 l)oard of ship, and the plaintiff placed some goods in the hut 
 in such a manner that the defendant could not get to his box 
 without removing them, ^Yhich he accordingly did, but forgot 
 to put them back again, and the goods were lost, it was held 
 that, althouo-h the defendant had a rio-ht to remove the o;oods, 
 yet, as he had not returned them to the place where he found 
 them, there might be ground for an action of trespass in med- 
 dling with them.^ " / 
 
 § 12. The law will afford no aid to a party whose claims 
 can be successfully enforced only ])y a violation of its princi- 
 ples, or in direct contravention of a statute. It has been 
 held that if the owner of a horse knowingly lets him on Sun- 
 day to be driven to a particular place, but not from any pur- 
 pose of necessity or charity, and the hirer injures the horse 
 by immoderate driving, an action cannot be maintained 
 against him for such injury, although it is occasioned in 
 going to a different place, and beyond the limits specified in 
 the contract.^ If a gang of counterfeiters should quarrel 
 about the division of their stock or tools, and one should 
 take the whole, in violation of the laws by whiek such asso- 
 ciations subsist, a court of justice would not interfere, it 
 beingf deemed a scandal that such matters should be dis- 
 cussed or adjusted. One who sets himself deliberately to 
 work to contiavene the fundamental laws of civil govern- 
 ment, forfeits his own right to protection in tkose respects 
 wkerein he was endeavoring to infringe tke rights of others.^ 
 Consequently, the prevention of an unlawful act, does not 
 constitute a valid cause of action on the part of the would-be 
 offender who is interfered with in the commission of his "in- 
 
 ' Bushel V. Miller, 1 Str. 129. 
 
 ^ Lord V. Chadbourne, 42 Maine, 429 ; Gregg v. Wyman, 4 Cush. 322. 
 
 = Spaulding v. Preston, 21 Vt. 9. 
 
 * The right of a person to use his property as he pleases is unlimited and un- 
 qualified up to the point where the particular use becomes a nuisance (Fisher v. 
 Clark, 41 Barb. 329).
 
 § 12. ACTS WHICH MAY OR MAY NOT CONSTITUTE. 11 
 
 tended offense.^* The general principle involved in tlie 
 cases is, that the law distinguishes between rights acquired 
 in conformity" with, and arising under its provisions, and 
 claims originating in their clear and palpable violation ; that 
 it will not enforce claims made in contravention of its man- 
 dates, nor protect property held against, and being used for 
 the deliberate purpose of disobeying its enactments.^ 
 
 ' Bangor &c. E. R. Co. v. Smith, 49 Maine, 9. 
 
 ^ Lord V. Chadbourne, 42 Maine, 439. 
 
 * " Governments, upon the most obvious principles of necessity, exercise more 
 or less of preventive force. All sanitary cordons, and preventive re^rulations, 
 everything in regard to the police of our cities and large towns, prohil)itious of 
 lotteries, gambling-houses, brothels and disorderly taverns, whether done l)y 
 general statutes, or mere police regulations, come under the right of preventing 
 more serious injuries. This must, of course, somewhat interfere with the natural 
 rights of individuals. One infected with contagion is instantly removed beyond 
 the reach of contact. A ship or cargo coming from an infected port is subjected 
 to long delay and great expense, to prevent the possibility of spreading pesti- 
 lence. This may. in some instances, endanger the lives and health of the indi- 
 viduals concerned, and must always more or less affect property, and abridge 
 personal liberty. And it is often done without any special law, and may always 
 be so done, — as iu the case of cholera suddenly breaking out in some remote in- 
 land town. What would be thought of an action for assault and battery brought 
 against a health officer who removed the plaintiff from a town or village to pre- 
 vent contagion ; or against the peace officer wdio laid his hand upon one under 
 an honest belief that he was insane; or against the sheriff who, by direction of 
 the prosecuting attorney, detains counterfeit coin, or those partly finished ? We 
 find no such actions in the books; and the want of precedent shows the general 
 sense upon the subject, when it is notorious that the public officers in our cities 
 subject persons suspected of crime, and every species of engine and material 
 with which it is even suspected they intend to operate, to just such restrictions 
 as they deem proper, and this without regard to any speciid provision of law. 
 The same is true, also, of those suspected of infection. And with regard to un- 
 wholesome iirovisions, if found to be so in a dangerous degree, they may even be 
 destroyed. So, too, of books and prints, and of all other devices to corrupt the 
 public morals. So, likewise, certain trades are considered common nuisances in 
 places of great public resort or concourse — like the smelting of metals, slaughtering 
 animals, &c., which would be likely to endanger the public health. And gam- 
 blingdiouses and brothels have i)een regarded as common nuisances in the cities. 
 Society, in these cases, and many others, has the right to anticipate, in order 
 that it may prevent the injury which is thus threatened. If it were not so, men 
 in a social condition would be far more powerless for purposes of defense than 
 in a natural state " (Redfield, J., in Spalding v. Preston, 21 Vt. 9). 
 
 The police power extends to the search, seizure, and destruction of property. 
 Nuisances may be abated in the most summary manner; dogs fount! chasing 
 sheep may be shot down; gambling implements be dcstroyea ; lottery tickets 
 and obscene prints prohibited; and, under the quarantine laws, the health officer 
 of a city, to prevent the spread of infection or contagion, may destroy bedding 
 or clothing, or any part of the cargo of a vessel. Gunpowder kept in improper 
 places may be seized and confiscated. The exercise of this authority is a power 
 of prevention, highly conservative in its character, and essential to the well- 
 being of the body politic, and ought not to be characterized as arbitrary or 
 despotic.
 
 12 definitio:n and nature of trespass. § 13. 
 
 3. Infringement of riglit witJwut specific injury. 
 § 13. Whenever a person establishes a legal riglit or title 
 in himself, which has been invaded, weakened, or destroyed 
 by the unlawful act of another, which act would be evidence 
 in future in favor of the wrong-doer, an action for damages 
 may be maintained, althougli no pecuniary loss can be 
 proved.^ Therefore, ^vhere a person has a right to a stream 
 flowing through bis land, he may maintain an action for the 
 diversion of the water, thougli he has not used and does not 
 want to use it.^ So, likewise, when it was suggested by the 
 defendant, in an action for overflowing land which the plaint- 
 iff owned in fee, that the injurious acts Avere continued but 
 a short time, and that instead of being an injury they were 
 a benefit to the land, the court replied that no infringement 
 of the rights of another could be justified on the ground that 
 the act was a benefit to the owner, if it was done against his 
 vvill.^ Again, the court refused to set aside a verdict for the 
 plain tifi^, in an action for trespassing upon his several fishery, 
 though the defendant caught no fish, on the ground that the 
 act of fishing was not only an infringement of the plaintift"'s 
 right, but would be evidence of using and exercising the 
 right by the defendant, if the act were overlooked.** And 
 
 • Embrey v. Owen. 6 Exch. 353; Canal Co. v. King, 14 Q. B. 122; Webb v. 
 Portland Manf. Co. 3 Snmuer, 197; Woodman v. Tults, 9 N. Ilamp. 88; Snow 
 V. Cowies, 2 Post. 302 ; Cowles v. Kidder, 4 lb. 379 ; Basset v. Salisbury Muuf. 
 Co. 8 lb. 455; Nicklin v. Williams. 10 Excli. 259; Wintringbam v. Lafov, 7 
 Cowen, 735; Cadwell v. Farrell, 28 111. 438. 
 
 ' Embrey v. Owen, suyra. ^ Tillotson v. Smith, 32 N. Hamp. 90. 
 
 ■* Patrick v. Greenway, 1 Wnis. Saund. 346, iwte 2. 
 
 * The maxim de minimis non curat lex is "never ap})lied to the positive and 
 wrongful invasion of another's property. ' To warrant an action in such a 
 case,' says a learned writer, 'some temporal damage, be it more or less, must 
 actually have resulted, or must be likely to ensue. The degree is wholly imma- 
 terial; nor does the law upon every occasion require distinct proof that an incon- 
 venience has l)een sustained. For example, if the hand of A. touch the person 
 of B., who shall declare that pain has or has not ensued? The only mode to 
 render B. secure is to infer that the inconvenience has actually resulted ' (Ham- 
 monds N. P. 39). 'Where a new market is erected near an ancient one, the 
 owner of the ancient market may have an action, and yet perhaps the cattle that 
 would have come to the old market might not have been sold, and so no toll 
 would have been gained, and consequently there would have been no real dam- 
 age; but there is a possibility of damage' (2 Ld. Raym. 948). In Ashby v. 
 White, wherein Powell, J., laid down this rule as to the market, it was held 
 finally by the house of Lords, that to hinder a burgess from voting for a member
 
 § 14. MOTIVE OR INTENTION. 13 
 
 it lias been lielcl that wliere a tenant makes material altera- 
 tions in property let to liira, by opening new doors, erectin;j; 
 new buildings, removing partitions, or changing the form 
 and appearance of a house, without the consent of the land- 
 lord, he is lialile in damages, although the premises may 
 have been enhanced in value by the alterations.^ * 
 
 4, Motive or intention. 
 § 14. It is a general rule, "that when one does an illegal 
 or mischievous act which is likely to prove injurious to 
 others, and when he does a legal act in such a careless and 
 improper manner that injury to third persons may probal)]y 
 ensue, he is answerable, in some form of action, for all the 
 consequences which may directly and naturally result from 
 his conduct ; and, in many cases, he is answerable criminally 
 as well as civilly. It is not necessary that he should intend 
 to do the particular injury which follows, nor indeed any 
 injury at all. If a man, without just cause, aim a blow at 
 his enemy, which, missing him, falls upon his friend, it is a 
 trespass upon the friend, and may be murder if a deadly 
 weapon was used and death ensued. Or, if in attempting to 
 steal or destroy the property of another, he unfortunately 
 wound the owner or a third person, he must answer for the 
 consequences, although he did not intend that particular mis- 
 
 of the House of Commons was a good ground of action. Ko one could say tliat 
 he had been actunlly injured, or would be; so far from it, the hindrance might 
 have benefited him. But his franchise had been violated" (Cowen, J., in Seneca 
 E. Co. V. Tlie Auburn & Rochester E. R. Co. 5 Hill, 170). 
 
 ' Cole V. Green, 1 Lev. 309. 
 
 * The English courts seem inclined to break up tlie whole system of giving 
 verd'cts when no actual injury has been done, unless there be some right in 
 question which it was important for the plaintiff to establish. In Williams v. 
 Mostyn, 4 M. & W. 145, where case was brought for tlie voluntary escape of one 
 Laugford taken on mesne process^ and it was admitted that tlie plaintiff had sus- 
 tained no actual damage or delay, the defendant having returned to tlie custody 
 of the plaintiff, a verdict was found for the plaintiff for nominal damages. But, 
 on motion, the court directed a nonsuit to be entered, saying that there had 
 been no damage in fact or in law. So, in a suit brought by the owner of a house 
 against a lessee, for opening a door without leave, the premises not being in any 
 way weakened or injured by the opening, the court refused to allow nominal 
 damages, and remitted the case to the jury to say whether the plaintiff's rever- 
 sionary interest liad, in point of fact, been prejudiced (Young v. Spencer, 10 B. 
 «fc C. 145; 21 Eng. C. L. 47).
 
 14 DEFINITION AND NATURE OF TRESPASS. §15. 
 
 chief. And althoiigli no mischief of any kind may he 
 intended, yet if a man do an act whicli is dangerous to the 
 persons or property of others, and Avhich shows a reckless 
 disrec^ard of consequences, he will be answerable civilly, and 
 in luauY cases criminally, for the injuries which may follow 
 
 as if he discharge a gun, or let loose a ferocious or mad 
 
 animal in a multitude of people, or throw a stone from the 
 house-top into a street where many are passing, or keep a 
 laro-e quantity of gunpowder near tlie dwelling of another. 
 In these and similar cases, he must answer for any injuries 
 which may result from his misconduct to the persons or 
 property of others." ^ 
 
 8 15. It IS the duty of every one who assumes to inter- 
 fere with the property of a third person, to ascertain whether 
 he is acting under due autliority, and he cannot excuse him- 
 self to any one wbo has been injured l)y his conduct by the 
 suo:gestion that lie supposed he was acting under proper au- 
 thoi'ity. His suppositions are not matters of defense.^ A. 
 havinc/- sold to B. a steer running at large on a prairie, pointed 
 out, ])y mistake, the steer of another person, which B. killed. 
 It was held that trespass would lie against both jointly ; but 
 not if the steer had been pointed out by a stranger.^ * And 
 where, in an action of trespass for taking an ox belonging to 
 the plaintiff, it was proved that the defendant met the plaint- 
 iff in the street, and bought of the latter an ox, which the 
 j)laiutiff* directed him to go and take out of his inclosure, 
 and that by mistake he took the wrong ox, it was held that 
 the defendant was liable. The court reasoned thus: "The 
 taking of the plaintiff' 's ox was the deliberate and voluntary 
 
 ' Vandenburgh v. Truax, 4 Deiiio, 40-1. per Bronson. Cii. J. : post, §§ 111, 282. 
 
 ^ Johuson V. Stoue, 40 X. H-.iuip. 19T; Aiiiick v. Ollara, G Blackf. 258; Dex- 
 ter V. Cole, G Yvis. BlU. 
 
 = Hamilton v. Hunt, 14 III. 472. 
 
 * Where a license lias been obtained under a mistake and niisunderstanding 
 between the parties, without fraud, the license wdll be a nullity, but the misun- 
 derstanding will go iu reduction of damages in an action for the unintentional 
 trt'soass (Biidges v. Blancliard, 1 Ad. & E. 5;]0 ; see Davies v. Marshall, 10 C. B. 
 N. S. 697).
 
 § IG. MOTIVE OR INTENTION. 15 
 
 act of the defencljmt. He raiglit not have intended to commit 
 a trespass in so doing. Neither does the officer, when on a 
 precept against A. he takes, by mistake, the property of B., 
 intend to commit a trespass ; nor does he intend to become a 
 trespasser who, believing that he is cutting timber on his 
 own land, by mistaking the line of division cuts on his neigh- 
 bor's land ; and yet, in both cases, the law would hold them 
 as trespassers." ^ '^' 
 
 § 16. In civil trespasses, tlie law considers the damage 
 actually inflicted upon the party wronged, rather than the 
 intent or malice of him who is the wrong-doer ; though the 
 QUO animo is sometimes shown in mitio-ation or ao;2:i'avation 
 of damages. To maintain the action, it is not necessary to 
 prove that the act was done with any wrongful intent ; it 
 being sufficient, if it was without any justifiable cause orpur- 
 
 ^ Hobaft V. Hagget, 12 Maine, 67; and see Basely v. Clarkson, 3 Lev. 37; 
 Higginson v. York, 5 Mass. 341. 
 
 * As a man may be guilty of a high crime if he rashly and recklessly, ■without 
 proper precaution, does an act which injures another, although he does not in- 
 tend to commit the crime or actually know that he is doiui? so, a fortiori he 
 may l>e guilty of a trespass (Com. v. Cornish, G Bin. 249). '"If the law were 
 otlierwise, farmers and people in villages, where cattle are allowed to run at 
 large, would be exposed to great trouble and expense in regaining their cattle 
 driven oft' l>y the agents and servants of drovers, because in the action of trover, 
 if they were driven to that, the measure of damages would be the value of the 
 goods and chattels at the time of demand, with interest, which would be no 
 compensation for the loss of time, expense and trouble in pursuing cattle 
 to a great distance" (Coulter, ,T., Brooks v. Olmstead, 17 Penn. St. R. 24). 
 
 In Percival v. Hickey, 18 Johns. 257, which was an action of trespass by the 
 master of the American schooner Mary against the commander of the British 
 schooner Atlanta, it was insisted that the defendant and those on board the 
 cruiser believed the Mary to be a French vessel; that she was pursued as such, 
 will) tlie intention to capture her as prize of war; and altiiough it turned out 
 .she was not a French but an American vessel and a neutral, jet the acts of the 
 de[endant were done with the intention to capture her, and that, therefore, the 
 question was one of prize or no priz.e, and of admiralty jurisdiction. The Su- 
 preme Court, per Spencer, Ch. J., in taking a contrary view, said: "I cannot 
 assent to this conclusion. The intention to capture the Mary as a prize depended 
 altogether on the supposition that she was a French vessel. It did not exist if 
 she was in fact an American vessel. It was, therefore, a conditional intention, 
 depending on the event. As the character of the Mary during the chase was 
 uncertain, the defendant was "bound to conduct himself in such a manner that 
 his acts siiould be justified by the event. The intention, in a given event, to 
 make her a ])rize, did not constitute the actual pursuit of a prize. There is 
 nothing in the whole course of the transaction to show that, in point of fact, the 
 defendant treated the Mary as a prize, or that when her national character was 
 discovered he would have detained her as a i)rize, or for any violation of neu- 
 trality. I cannot, therefore, consider tlie injury received by the Mary in any 
 otlier light than as a marine trespass."
 
 IG DEFINITION AND NATURE OF TRESPASS. ^ 17. 
 
 pose.^ In Guille v. Swaii,^ Swan brought an action of tres- 
 pass in a justice's court against Guille for injury to his garden. 
 It appeared that Guille, having ascended in a balloon, came 
 down in Swan's garden, followed by a large number of per- 
 sons to Avhom, being in a perilous situation as he descended, 
 he called out for help, and that some damage was done to 
 the garden by the balloon, but much more l)y the crowd in 
 treading down vegetables and flowers. The justice charged 
 the jury that the defendant was liable for the whole damage, 
 and a verdict having been found accordingly, it was held 
 correct.* A similar decision was rendered in England, where 
 the defendant followed hounds, accompanied by a large con- 
 coiu'se of persons on foot and on horseback, over the plaintiff's 
 land, destroying the fences and injuring the crops,^ 
 
 § 17. But although, as we have already stated, the inten- 
 tion with which the wrong was committed is not in general 
 
 ' 2 Greenlf. Ev. § 022; Broom's Leg. Max. 221; Sanderson v. Baker, 2 W. 
 Blk. 882; Gate v. Gate, 44 N. Hamp. 211. 
 
 ^ 19 Johns. 381. • ' Hume v. Oldacre, 1 Stark. 351. 
 
 * In Guille v. Swan, svprn^ the Supreme Court, in affirming the judgment, said : 
 "The counsel for the plaintiff in error supposes that the injury committed by 
 his client was involuntary, and that that done by the crowd was voluntary, and 
 that therefore there was no union of intent; and that upon the same principle 
 Mhich would render Guille answerable for the acts of the crowd in treading 
 down and destroying the vegetables and flowers of Swan, he would be respon- 
 sible for a battery "or a mm-der committed on the owner of the premises. The 
 intent wnth which an act is done is by no means the test of the liability of a 
 party to an action of trespass. If the act cause the immediate injury, whether it 
 was intentional or unintentional, trespass is the proper action to redress the 
 ■wrong. I will not say that ascending in a balloon is an unlawful act, for it is 
 not so. But it is certain tliat the aeronaut has no control over its motion hori- 
 zontally. He is at tlie sport of the winds, and is to descend when and how he 
 can. His reaching the earth is a matter of hazard. He did descend on the 
 premises of the plaintiff below, at a short distance from the place wiiere he as- 
 cended. Now, if his descent under such circumstances would ordinarily and 
 naturally draw a crowd of people about him, either from curiosity or for the pur- 
 pose of rescuing him from a perilous situation, all this he ought to have foreseen, 
 and must be responsible for. Whether the crowd heard his call for help or not 
 is immaterial, lie had put himself in a situation to invite help, and they rushed 
 forward, impelled, ])erhaps, l)y the double motive of rendering aid and gratify- 
 ing a curiosity which he had excited. Can it be doubted that if the plaintiff in 
 error had beckoned to the crowd to come to his assistance that he would be 
 liable for their trespass in entering the inclosure ? I think not. In that case, 
 they would have been cotrespassers, and we must consider the situation in 
 which he placed himself voluntarily and designedly as equivalent to a direct 
 request to the crowd to follow him. In the present case, he did call for help, 
 and may have been heard by the crowd. He is, therefore, undoubtedly liable 
 for all the injury sustained " (see 4 Denio, 467).
 
 § 18. MOTIVE OR INTENTION. 17 
 
 material, yet there are Diany instances in whicli the character 
 of an act depends entirely upon the motive.^ The intent to 
 seduce a wife or daughter would greatly aggravate a trespass.'^ 
 On the other hand, proof that the defendant entered the 
 plaintiff's premises for the purpose of viewing a horse be- 
 longing to him which had l^een recently stolen, and was then 
 there, would almost amount to a justification.^ An unlawful 
 act done wilfully and purposely to the injury of another, is 
 as against that person, malicious; and if he do not justify or 
 excuse it, the law will imply a bad intent. But he may 
 prove that his intentions were good, — that he w^as actuated 
 by no ill will against the plaintiff, — and that his demeanor 
 was that of a person who meant no wrong.* Such evidence, 
 however, as already intimated, will only bear upon the ques- 
 tion of damages, and will not in any way tend to defeat the 
 plaintiff's right to recover.^ 
 
 § 18. When an act is legally done, it cannot be made 
 illegal ah initio unless by some positive act incompatible 
 with the exercise of the legal right to do the first act. The 
 mere intention to do a subsequent illegal act, being from its 
 nature mutalde, cannot be substituted for the act itself. 
 This obviously correct principle was illustrated in Gates v. 
 Lounsbury,^ which was an action for assault and battery. 
 The defendant i^leaded that he laid his hands upon the 
 plaintiff to prevent him from taking away the defendant's 
 horse. The plaintiff replied that the horse was wrongfully 
 on his land doing damage, and he was leading him off of the 
 land towards a certain pound with intent to impound him as 
 
 ' 1 Chit. PI. 377; 1 Saund. PI. & Ev. 343; 1 Wms. Saund. 243, n. 2; Archb. 
 Civ. PI. 205; Gates v, Lounsbuiy, 20 Johns. 427; French v. Marstin, 4 Fost. 440. 
 ' Matteson v. Curtis, 11 Wis. 424. 
 » Webb V. Beavan, 7 Scott N. R. 93G; 6 Man. & G. 1055. 
 
 * Sears v. Lyons, 2 Stark. 317; Rex v. Woodfall, 5 Burr. 2667; Rex v. Top- 
 ham, 4 T. R. 194; Com. v. Snclling, 15 Pick. 321; Colby v. Jackson, 12 N. 
 Ilamp. 520; Handy v. Johnson, 5 Md. 450; Roth v. Smith, 41 111. 314. 
 
 ' Sherman v. Kortright, 52 Barb. 267; Bruch v. Carter, 3 Vroora, 554. 
 
 • 20 Johns. 427. 
 
 Vol. I.— 2
 
 18 DEFINITION AND NATURE OF TRESPASS. §19. 
 
 .'I distress, when the assault and battery was committed. 
 Kejoinder that the plaintiff w^as leading the horse towards 
 the pound with intent to impound him as a distress before 
 he had made application to the fence viewers of the town, to 
 ascertain and appraise the damage, whereupon the plaintiff 
 ^vas a trespasser from the beginning. Held, on demurrer, 
 that the rejoinder was bad.'^ 
 
 S 19. Bad motives in doing; a thino- which does not vio- 
 late the legal rights of another, cannot be made a ground of 
 action. Where, therefore, it was alleged that the defendant, 
 contriving and wrongfully intending to annoy and injure the 
 plaintiff in the use of his dwelling-house, erected, or caused 
 to be erected, on the defendant's premises, immediately ad- 
 joining the plaintiff's dwelling-house, and before his windows 
 and doors, a board fence of from eight to ten feet high, and 
 covered it with gas tar, and permitted it to remain so, by 
 means of which offensive and unwholesome smells arose and 
 came into and upon the premises of the plaintiff, and an- 
 noyed him, and rendered his said dwelling-house unhealthy 
 and unfit for habitation ; it was held that there was no cause 
 of action.^ f 
 
 ' Pickard v. Collins, 23 Barb. 444. 
 
 * In the above case, Spencer, Ch. J., in delivering the opinion of the Supreme 
 Court, said: " The rejoinder attem]its to put in issue a fact not triable, the in- 
 tent of the plaintiff' to impound the horse in the pound of the town, or public 
 pound, before application was made to the fence viewers to ascertain and ap- 
 praise the damage. If that intent had actually existed at the time of taking the 
 iiorse, it was revocable. The plaintiff had a jierfect right to change his inten- 
 tion at any time before the liorse was actually placed in the public pound. The 
 taking the horse is admitted by the replication to have been lawful. The ille- 
 ,'ality of that act depended on the subsequent conduct of the plaintiff" in putting 
 the horse in a public pound before the damages were appraised." 
 
 t In Pickard v. Collins, sujn'a, the judge at the circuit charged the jury that 
 the defendant had no right " to build a fence in an ur.usual manner, materially 
 to injure and annoy his neighbor, and deprive him of the use of his lot, for a 
 man is bound so to use his own as to do no needless injury to his neighbor; " and, 
 further, '' if you find the defendant put this fence there, or covered it with gas 
 tar, as stated by the witness, for the purpose of injuring or annoying the plaintiff, 
 and rendering the use and enjoyment of his premises uncomfortable, or unhealthy, 
 and it had that effect, that would be an unreasonable use of his property, and he 
 must be responsible for any damages or injury done thereby." Judgment hav- 
 ing been rendered for the plaintiff, the General Term of the Supreme Court, in 
 reversing it for error in the charge, said: "The instruction in question, if sus- 
 tained, would carry the doctrine so far, and make the owner of land liable for
 
 § 20. LIABILITY FOR CONSEQUENCES OF WRONGFUL ACT. 19 
 
 5. Liability for consequences of wrongful act. 
 
 § 20. The rule is well settled, that a party doing or 
 causing an illegal act to he committed, is liable for all tlie 
 consequences w^hicli flow immediately therefrom ; ^ and the 
 liability is not varied by the fact that the consequences of 
 the injurious act might have been prevented by the care and 
 skill of the injured person.^ A. seized the arm of B. in the 
 hall of a school-house, swung him violently around, and then 
 let him go. B. struck against C, who pushed him off, and 
 B. hit against a hook in the wall and was injured. In an 
 action of trespass by B. against A. therefor, it was hekl that 
 the plaintiff was entitled to recover.^ 
 
 In an action for running into the plaintiff's carriage with 
 the defendant's wagon, it was objected that the injury being 
 consequential, trespass could not be maintained. It was 
 held, however, that as the consequence was immediate, the 
 defendant was to be deemed the active doer of all that 
 directly followed, and a trespasser.* 
 
 Vandenburgh v. Truax^ was an action of trespass for 
 
 such acts, if done with a bad motive. * * * g^cb a principle would be 
 highly dangerous to the security of the enjoyment of real property. As to vari- 
 ous modes of enjoyment, the lawfulness or unlawfulness of them would depend 
 on the views of others as to the intentions of the owner. The fallacy of this 
 doctrine consists in its overlooking a fatal defect in such a case — the absence of 
 any legal injury." 
 
 In Bartlett v. Kinsley et ah 15 Conn. 327, the question arose whether, when 
 the proceedings of a corporate meeting appear regular an;l legal, and within the 
 legitimate powers of the body, persons are to be adjudged tresjDassers who, in 
 the proper discharge of duty, assist in carrying them into effect, because the 
 real purpose of a majority of voters, either open or concealed, was to effect an 
 illegal object. The court, in holding the negative, said: "We have no doubts 
 upon this question, and should have none, though it could be proved that tiiese 
 defendants participated in such unauthorized purpose. The intention of a cor- 
 poration can only be learned by the language of its recorded acts; and neither 
 the private views, nor the public declarations of individual members of such cor- 
 poration, are for tliis purpose to be inquired after " (citing Fletcher v. Peck, 6 
 Oranch, 87). 
 
 * Burton v. McClellan, 2 Scam. 434. 
 
 " Phares v. Stewart, 9 Port. 330; Hunger v. Baker, 1 Thompson & Cook N. 
 Y. Supm. Ct. R. 122. 
 
 ^ Rickcr v. Freeman, 50 N. Ham p. 420. 
 
 * Burdick v. Worrall, 4 Barb. 59G, citing Scott v. Sheplierd, 2 W. Black. 892; 
 Leame v. Bray, 3 East, 593^ 
 
 ' 4 Denio, 464. ^
 
 20 DEFINITION AND NATURE OF TRESPASS. § 20. 
 
 "svllfully driving a colored boy behind the counter in the 
 plaintiff's store, whereby a fjiucet was knocked from a barrel 
 of port wine, and the wine destroyed. It appeared that the 
 boy, who was sixteen or eighteen years of age, was seen in 
 the street, near the plaintiff's store, approaching the defend- 
 ant, wdth a stone in his hand ; that the defendant took hold 
 of the boy, and told him to throw the stone down ; that the 
 boy got away from the defendant, who pursued him with a 
 pickaxe into the plaintiif 's store ; and that the boy, running 
 behind the counter to save himself from the pickaxe, did the 
 mischief complained of At the trial of the case before a 
 justice of the peace, judgment was rendered for the plaintiff, 
 which was affirmed by the Common Pleas and afterward by 
 the Supreme Court. 
 
 A.'s carriao'e was driven as^ainst the wheel of B.'s chaise. 
 The collision threw a person who was in the chaise upon the 
 dashino;-board. The dashino;-board fell on the back of tlie 
 horse, and caused him to kick, and thereby the chaise was 
 injured. It w^as held that B. was entitled to recover in tres- 
 pass against A. damages commensurate with the whole of 
 the injury sustained.^ 
 
 The following somewhat familiar case is a good illustra- 
 tion of the responsibility of a person who is the first, though 
 not the immediate agent in causing the injury. Shepheivl 
 threw a lighted squib, composed of gunpowder, into a market- 
 house, wdiere a large number of people were assembled. It 
 fell on the standing of A., and, to prevent injury, it was 
 thrown off his standing across the market, when it fell on 
 another standing; from thence, to save the goods of the 
 owner, it was thrown to another part of the market-house, 
 and in so throwing it, it struck the plaintiff in the face, and 
 bursting, put out one of his eyes. Three of the judges 
 against one held that Shepherd was answerable in an action 
 of trespass and assault and battery. De Grey, Cl^. J., re- 
 marked that throwing the squib was an unlawful act ; and 
 
 ' Gilbertson v. Richardson, 5 C. B. 502; 13 Jur. 292; 17 L. J. 112.
 
 § 21. LIABILITY FOR CONSEQUENCES OF WRONGFUL ACT. 21 
 
 that whatever mischief followed, the person throwing it was 
 the author of the mischief. All that was clone subsequent 
 to the original throwing was a continuation of the first force 
 and the first act. Any innocent person removing the danger 
 fi-om himself was justifiable ; the blame lights upon the first 
 thrower; the ne^v^ direction and new force flow out of the 
 first force. He laid it down as a principle, that every one 
 who does an unlawful act is considered as the doer of all 
 that follows.^ * 
 
 8 21. Where the wTono-ful act of the defendant was the 
 proximate cause of the injury to the plaintiff, which would 
 not have occurred but for that, the defendant is liable, al- 
 though other causes for which he was not in fault might 
 have contributed to the result.^ Therefore, executing a bond 
 
 ' Scott V. Shepherd, 2 W. Blk. 892; s. c. 3 Wils. 403. 
 
 ' Hooksett V. Amoskeag Manf. Co. 44 N. Hamp. 105. 
 
 * The party injured, either in his person or property, by the discharge of a 
 gun, even when the act is lawful, as at a military muster and. parade, and under 
 the orders of a commanding ofhcer, is entitled to redress in a civil action to the 
 extent of his damage. And where the act is unnecessary — a matter of idle 
 sport and negligence— and, still more, when the act is accompanied with pur- 
 poses of wanton or deliberate mischief, and any hurt or damage ensues, the 
 guilty party is liable, not only in a civil action, but as an otfeuder against the 
 public peace and security. Cole v. Fisher, 11 Mass. 137, was an action of tres- 
 pass, for causing a horse to run away with a carriage. It appeared that the de- 
 fendant, after washing out his gun, in order to dry it, tired it otf from his shop 
 door, which was about a rod from the highway. The j^laintilf's horse and 
 chaise were on the opposite side of the highway, the horse being fastened to the 
 fence by his bridle. The horse being terrified by the firing of the gun, ran away 
 with the chaise, which was thereby broken. Sewall, C. J., in delivering the 
 opinion of the court, said: "In the case at bar, it does not appear, from the 
 facts stated, how near the place where the horse was fastened was to the door of 
 the shop, the place where the gun was fired. If the horse and chaise were in 
 plain sight, and near enough to be supposed to excite any attention or caution 
 on the part of the defendant; or if it was in evidence that he had noticed their 
 being there, exposed to the consequences of his firing the gun, and the distance 
 was such that, by common experience, there might be a reasonable apprehension 
 of frightening tlie horse by the discharge of the gun, I should think the de- 
 fendant, although no purpose of mischief was proved, and even if it was not a 
 case of very gross negligence, liable in an action of trespass. On the other 
 hand, if tlie plaintiff's horse and chaise were out of his sight, and had not been 
 noticed by the defendant, and the distance was such as that no reaspnable appre- 
 hension of frightening the horse could arise, supposing the horse and chaise to 
 have l)een observed by tiie defendant, the injury is hardly to be considered as 
 sufficiently immediate upon the act of the defendant to render him liable in this 
 form of action; although undoubtedly liable in an action upon the case to the 
 extent of the damage actually sustained by the plaintiff."
 
 22 DEFINITION ANT) NATURE OF TRESPASS. §§ 22, 23. 
 
 whicli provides for a levy upou particular property not be- 
 longing to the judgment debtor, will make the obligor a 
 trespasser.^ But the defendant will not be liable if the 
 cause of the injury be remote. Where, fgr instance, the 
 clerk of a school district gave a certificate to tbe assessor of 
 the town that at a meeting legally and duly organized (Vjut 
 which it afterwards appeared was not legally called), it was 
 voted to raise a certain sum of money ; and thereupon the 
 assessors proceeded to assess the same, and cause it to be 
 collected ; it was held that the act of the clerk, being only 
 the remote cause of the injury complained of, trespass would 
 not lie against him.^ 
 
 § 22. The rule under consideration is equally applicable, 
 although the damage was not sustained until some time sub- 
 sequent to the commission of the wrongful act. In an action 
 for entering the plaintiff's close, and undermining a bank 
 near a dam that had been built across the river, whereby 
 the water of the river three weeks afterwards carried away 
 three acres of the plaintiff's land, it was objected, in behalf 
 of the defendant, that the action was misconceived, inasmucli 
 as the damage did not follow immediately and directly from 
 the original act of digging into tlie bank, which act was ad- 
 mitted to have been a trespass. But a verdict having been 
 found for the plaintiff for the full amount of damage sus- 
 tained by Mm, judgment was entered on it by direction of 
 the court.^ * 
 
 6. Inciting or aiding the commission of trespass. 
 
 § 23. All who with full knowledoje of the facts, aid, 
 command, advise or countenance the commission of a tort by 
 
 ' Pozzoai V. Henderson, 2 E. D. Smith, 146. 
 
 ^ Taft V. Metcalf, 11 Pick. 456; and see Barnes v. Hurd, 11 Mass. 59. 
 
 » Dickinson v. Boyle, 17 Pick. 78; post, §g 112, 278. 
 
 * Where one who owned a mill dam, in order that it might not be broken by 
 a flood, severed it at one end, whereby injury was caused to a highway near, it 
 was held that as the cutting of the dam away was the proximate cause of the 
 injury, he was liable (The State v. Knotts, 2 Speers, 692).
 
 § 23. INCITING OR AIDING THE COMMISSION OF TRESPASS. 23 
 
 another, are equally liable with him who commits it.^ ^' No 
 one is allowed to incite another to a wrong, and after its 
 commission to give his want of influence in evidence in bar 
 of an action. A. directed a police officer to take B. into cus- 
 tody on a charge of embezzlement, and the officer having 
 done so, the officer and A. went together to a box of B., and 
 the officer, in the presence of A., searched the box, and took 
 from it a sovereign. In an action by B. against A. for the 
 
 ' .Judson V. Cook, 11 Barb. 642; Clark v. Bales, 15 Ark. 452; McMurtrie v. 
 Stewart, 21 Penn. St. R. 322; Horton v. Hensley, 1 Iredell, 168; Ferguson v. 
 Terry, 1 B. Mou. 96; Fox v. Jackson, 8 Barij. 355; Adams v. Freeman, 9 Johns. 
 117; Collins v. Ferris, 14 Johns. 246; Mallory v. Merritt, 17 Conn. 178; Hall v. 
 Howd, 10 Conn. 514; Williams v. Brace, 5 lb. 190; Thames Manf, Co. y. 
 Lathrop, 7 lb. 550; Welsh v. Cooper, 8 Penn. St. R. 217; Bell v. Miller, 5 Ham. 
 250; see pod, §§ 61, et seq., and §§ 212-290. 
 
 * In Vosburgh v. Moak, 1 Cash. 453, all the defendants were engaged in a 
 game of wicket on a pui)lic highway of four rods in width. The plaintiff was 
 traveling on the highway in a wagon with his wife, and while passing was 
 struck in the pit of the stomach and much injured, by the ijall v.hich the play- 
 ers were using. It appeared that the ball being wet, sli'pped in the hand of the 
 thrower, and was thus turned from the intended direction, and struck the 
 plaintiff as already stated. At the trial in the Court of Conmion Pleas, the 
 liability of the thrower of the ball was not disputed; but the judge was asked 
 to instruct the jury as to tiie other defendants, that, under a certain state of facts 
 assumed by the defenciant's counsel, they ought not to be held responsible. The 
 judge charged as follows : "If the defend;uits were all engaged in the game of 
 ■wicket on the public highway, and if, from the situation of the road, the num- 
 ber of persons passing, or other cause, the game there was of such a character as 
 to endanger or expose to injury the persons traveling along the road, or their 
 property, and the injuiT was received by the ])laintiff while traveling along the 
 road, without any fault on his part, the defendants would all be liable in this 
 action, provided the party who tlirew the ball was acting in the usual manner 
 of persons engaged in the game, although his object was merely to return the 
 ball, and it took a different direction from that intended by slipping in his hand 
 and taking a direction towards the plaintiff." Dewey, J., in delivering the 
 opinion of the Supreme Court, said : "The limits of this road, the amount of 
 travel thereon, the nature of the game, and the circumstances under which the 
 plaintiff received the injury, show a clear case of liability on the part of the per- 
 son by whose immediate agency the injury was occasioned. The injury was 
 direct, and was properly the subject of an action for trespass. The further in- 
 quiry then is, were all the associates in this game of wicket jointly liable for 
 this trespass ? If liable at all, they were liable in trespass, as they were present 
 and engaged in tiie game when the injury was inflicted. The ground taken in 
 defense is, that if this injury resulted from an accidental misdirection of the 
 ball in the hands of one of the players, the others ought not to be responsible 
 therefor. It may be difficult in some cases to define the line with entire satis- 
 faction as to cases where an association or many persons are engaged in a com- 
 mon object, and an injury is inflicted by one individual without intentional con- 
 currence on the part of the others, or even without intention on the part of the 
 individual who inflicts the injury, and yet. the whole number, engaged in the 
 common object, be liable jointly for the damages sustained by the injured party. 
 However that may be. we tliink no difficulty exists in the present case. The rule 
 as stated by the presiding judge, was stated with entire accuracy and under 
 proper limitations."
 
 24 DEFINITION AND NATURE OF TRESPASS. § 24. 
 
 trespass, in opening the box and taking the sovereign, it was 
 hehl that proof of these facts was evidence to go to the jury 
 of A.'s participation in the wrong.^ Wall v. Osborn^ was 
 an action of trespass for entering upon the plaintiff's land 
 and taking down and carrying away a mill standing thereon. 
 It appeared that the defendant sold the mill to one C, telling 
 him that if he w^anted help in taking down and removing 
 the mill, he would have a man to assist him. The mill was 
 afterwards taken down by C, but whether or not the de- 
 fendant furnished any aid was not shown. The jury were 
 instructed by the Chief Justice of the New York Superior 
 Court, in which the case was tried, that the sale of the mill 
 to C, and the offer of the defendant to help him in taking it 
 away, w^as not such a participation in the act of removal as 
 to make the defendant a trespasser. A judgment having 
 been found for the defendant, the Supreme Court, in setting 
 it aside, said: "The defendant in this case, by undertaking 
 to sell the plaintiffs property, was the moving cause of the 
 injury sustained by the plaintiff. On the supposition that 
 the purchaser is perfectly responsible, the plaintiffs have 
 been put to trouble and expense for which the defendant 
 should be lial:)le. If the law were otherwise, and if in such 
 case a purchaser was irresponsible, the owner might lose his 
 property altogether." * 
 
 § 24. The principle that in trespass all are liable who 
 participate in the act, will sometimes subject a person as a 
 trespasser who has merely delegated an authority to be ex- 
 ecuted for his benefit. This is the ground upon which the 
 real party to a suit is usually made responsible for the acts 
 
 ' Joues V. Morrell, 1 Car. & K. 266. " 12 Wend. 39. 
 
 * Where the owner of land wilfully suffers a nuisance to be created or con- 
 tinued by another on or adjacent to his premises in the carrying on of a business 
 for his benefit, and under his authoritj', he is liable for any injury to third per- 
 sons resulting therefrom (Clark v. Fry, 8 Ohio, N. S. '358). 
 
 A person who, while professing to sell his own trees, points out to the buyer 
 timljer growing on the land of the adjacent proprietor, is liable to such pro- 
 prietor in damages, for the trees which the buyer is thereby induced to cut and 
 carry away (Kolb v. Bankhead, 18 Texas, 228).
 
 § 25. INCITING OR AIDING THE COMMISSION OF TRESPASS. 
 
 lii) 
 
 of liis attorney or ministerial officers employed by him.^ So 
 completely is the person who gives directions to an officel* 
 identified ^vith the acts of the officer, that he is frequently 
 responsible, where the officer is excused. Such is the case in 
 the familiar instances of an arrest, or a levy upon goods at 
 the request of a party upon an execution in his favor, valid 
 on its face, but unauthorized by a judgment.^ 
 
 § 25. Whenever an officer has power to execute process 
 in a particular manner, his authority is a justification of all 
 who come in his aid."^ But if his authority is not sufficient 
 to justify him, neither can it justify those who aid him. He 
 has no power to command others to do an unlawful act. 
 They are not bound to obey him ; and if they do, it is at 
 their peril. The only hardship in the case is, that they are 
 bound to know the law. But that obligation is universal.^ f 
 Where a lieutenant and private in the United States army, 
 
 ' Ross V. Fuller, 12 Vt. 265. ' Coats v. Darby, 2 N. Y. 517. 
 
 ' Elder v. Morrison, 10 Wend. 128; post, § 160. 
 
 * The defendant maj' show that the act was done under the orders of any- 
 civil or military officer of the State, or of the United States, to aid in suppress- 
 ing rebellion (Hess v. Johnson, '^ W. Va. 645 ; Durand v. Hollins, 4 Blatchf. C. 
 C. 451. 
 
 Where in an action of trespass against a soldier, the defendant pleads in jus- 
 tification that he acted under the command of his superior officer, he need not 
 give in evidence the commission of the officer, but may prove that the latter was 
 in command of a military force, that he assumed to command as an officer, and 
 was recognized as such (Hardage v. Coffinan, 24 Ark. 256). 
 
 t If a militia officer issues a paper purporting to be a warrant, but which is 
 void, directing the clerk of the company to seize the property, or arrest the body 
 of a delinquent soldier, the clerk is under no obligation to obey it as a precept. 
 It is, however, a command, and is as imperative, at least, as any verbal com- 
 mand or request made to an individual to commit a trespass. Neither command 
 need be obeyed. And if the trespass be committed in either case, the person 
 directing it, and the agent, are alike liable (Batchelder v. Whitcher, 9 N. Hamp. 
 239). 
 
 It is not a defense that the trespass was committed by order of the authorities, 
 and in pursuance of the law of a State engaged in rebellion (Lively v. Ballard, 2 
 W. Va.'496). Where, however, the owner of land despoiled by the army of the 
 late confederate States, brought an action of trespass against certain citizens for 
 aiding in the spoliation, it was proved that such assistance was rendered under 
 a military requisition, and the evidence tended to show, that the plaintiff being 
 told by the commanding officer that all damages should be paid, acquiesced ; the 
 damages were assessed, but whether they were ever paid, did not appear; it was 
 held that the defendants were not liable (Baker v. Wright, 1 Bush, Ky. 500). 
 
 In order to establish the defense of duress, the defendant must show that he 
 liad no reasonable means of escaping from the force or fear before the trespass 
 was committed (Cunningham v. Pitzer, 2 W. Ya. 264).
 
 26 DEFINITION AND NATURE OF TRESPASS. §§ 2G, 27. 
 
 acting under orders of their captain, took from a person two 
 horses, it was hehl that they were trespassers.^ In Leonard 
 V. Stacy,' the defendant pleaded in justification of a trespass 
 that the goods were taken by an officer by virtue of a writ 
 of replevin, and that he assisted the officer. The plaintiff 
 replied that before the goods were taken away, he claimed 
 property in them, and gave notice thereof to the defendant ; 
 and the fact being so found by the jury, the plaintiff had 
 judgment. There the fault was the taking away the goods, 
 after such a claim of property, without a writ de 'proiJrietate 
 probanda / and no question was made whether the defendant 
 was acquainted with the course prescribed by law in such a 
 case. It was considered that as the act of the officer was 
 unlawful, all concerned with him in that act were liable to 
 the action of the parties aggrieved. 
 
 § 26. If a strano'er comes in aid of an officer in executing^ 
 legal process, and the officer afterwards omits to return the 
 writ, or by any other subsequent abuse of his authority be- 
 comes a trespasser ab initio^ this shall not prejudice the 
 stranger, nor make him a trespasser. The same principle 
 applies to bailiffs who serve a writ by virtue of a precept 
 from the sheriff. If such a WTit be not duly returned by 
 the sheriff, he is a trespasser, but the bailiff is not punish- 
 able.^ 
 
 § 27. A creditor or other assistant of an officer, acting^ in 
 good faith, and intending only to discharge a legal duty, will 
 not involve himself in any responsibility for illegal and un- 
 authorized acts of the officer in which he took no part, and 
 to which he did not assent. If, for instance, the creditor 
 should go T\dtli the officer for the puipose of assisting him 
 to levy on property for the payment of his debt, and he 
 should direct the levy to be made on certain property alone, 
 but do not assent to, or approve of, anything that is done 
 
 ' Wilson V. Franklin, 63 N. C. 259 ; and see Hogue v. Penn, 3 Bush, Ky. 663. 
 ' 6 Mod. 69. 
 
 ' Ovstead v. Shed, 13 Mass. 505 ; s. c. 13 lb. 520 ; Wheelock v. Archer, 26 
 Vt. 380.
 
 § 28. RATIFICATION AND ADOPTION OF WRONGFUL ACT. 27 
 
 by the officer relative to other property, be will not be 
 responsible for tbe officer's conduct in relation to the latter.^ 
 But any abuse by tbe party, especially if be intermeddle 
 officiously, will make bim a trespasser. One wbo unneces- 
 sarily accompanied a deputy sberiff, to assist bim in seizing 
 goods under an execution, and wbo, at a late bour of tbe 
 nigbt, and against tbe will of tbe party rigbtfully in posses- 
 sion of goods, entered bis bouse witbout tbe command of tbe 
 deputy, aroused, alarmed, and insulted bis family, and forci- 
 bly took bis goods away, was beld to bave committed a tres- 
 pass witbout justification or excuse.^ 
 
 7. Ratification and adoption of tcrorigfid act. 
 
 § 28. A tbing done for anotber by a person not assum- 
 ing to act for bimself, but for sucb otber person, tbougb 
 witbout any precedent autbority whatever, becomes tbe act 
 of tbe principal, if subsequently ratified by bim. In tbat 
 case, tbe principal is bound by tbe act, wbetber it be to bis 
 detriment or advantao;e, and wbetber it be founded on a tort 
 or a contract, to tbe same extent, and witb all tbe conse- 
 quences wbicb follow from tbe same act if done by bis 
 previous autbority. Sir Edward Coke^ says: "He tbat re- 
 ceivetb a trespasser and agrees to a trespass after it is done, 
 is no trespasser, unless tbe trespass was done for bis use, or 
 for bis benefit, and tben bis agreement subsequent amountetb 
 to a precedent commandment." Sucb was the precise dis- 
 tinction taken in the Year Book,^ wbere it was beld that if 
 a bailiff took a beriot, claiming property in it bimself, tbe 
 subsequent agreement of tbe lord would not amount to a 
 ratification of bis autbority as bailiff at tbe time; but if be 
 took it at tbe time, as bailiff of tbe lord, and not for bimself, 
 witbout bowever any command of tbe lord, yet the subse- 
 quent ratification by the lord made bim bailiff at the time.^ 
 
 ' Johnson v. Stone, 40 N. Hamp. 197. 
 
 » McElhenny v. Wylie, 3 Strobli. 284. 
 
 * 4 Inst. 317. * Hen. 4, foi. 35. 
 
 " Hull V. Pickersgill, 1 B. & B. 83; Woolen v. Wright, 1 II. & C. 554.
 
 28 DEFINITION AND NATURE OF TRESPASS. §§ 29, 30. 
 
 But ill order to make a person a trespasser, by the I'atifica- 
 tiou and adoption of a wrong committed in his name and 
 for bis benefit, it must be proved that tlie act was ratified 
 and adopted by him with full knowledge of its being a tres- 
 [)ass, or of its being tortious ; or it must be shown that in 
 ratifying and taking the benefit of the act, he meant to take 
 upon himself, without inquiry, the risk of any irregularity 
 which mio-ht have been committed.^ Whether the assent to 
 a trespass after it has been committed will make the party 
 assenting a trespasser ah initio, in cases of mere personal tort, 
 has been doubted. It certainly w^ould not have that effect 
 unless the assent were clear and explicit, and founded on full 
 knowledge of the previous trespass.^ 
 
 8. Indemnity of innocent lorong-doer. 
 
 § 29. Courts will not lend their aid to a person who 
 founds his cause of action upon an immoral or illegal act. 
 It is a general doctrine of the common law that there can be 
 no reimbursement or contribution in such a case, whether 
 the parties are principals or agents.* Thus, if A. recover in 
 tort against two defendants, and levy the w^hole damages on 
 one, that one cannot recover a moiety against the other for 
 his contribution.^ 
 
 § 30. The distinction taken between promises of indem- 
 nity that are and those which are not void is, that if the act 
 directed or agreed to be done is known at the time to be a 
 trespass, a promise to indemnify will be illegal and void; 
 but that if it be not known at the time to be a trespass, such 
 promise is valid, whether express or implied.* f Where a 
 
 ' Roe V. Birkenhead, 7 Exch. 36 ; Wilson v. Barker, 1 Nev. & M. 409 ; Wilson 
 V. Tummou, 12 L. J. C. P. 307. 
 
 - Adams V. Freeman, 9 Johns. 117. 
 
 = St. John V. St. John's Church, 15 Barb. 346. 
 
 '' Merryweather v. Nixan, 8 T. R. 186; Coventry v. Barton, 17 Johns. 142 ; 
 Turner v. Jones, 1 Lansing, 147. 
 
 * It is otherwise as to fees paid to counsel (Percy v. Clary, 32 Md. 245). 
 
 t There seems to be some conflict of authority as to whether, in such case, 
 the agent having followed the directions of his principal, the law will imply a
 
 § 31. INDEMNITY OF INNOCENT WKONG-DOER. 29 
 
 mastor directed his servant to enter on the land, claimina; 
 and declaring it to be his own ; and the servant, relying on 
 the truth of the declaration, entered ; but, in fact, the land 
 belonged to another person ; it was held that the act of the 
 servant was a good consideration for the promise to indeni- 
 mfy} And where an agent, acting under the instructions of 
 his principal, cut timber by mistake, on land that did not 
 belong to his principal, and the latter received it, it was held 
 that the agent might I'ecover of his principal what he had 
 been obliged to pay for tlie trespass.^ 
 
 § 31. If A. make a valid promise to indemnify B. against 
 
 promise of indemnity. In Dunlap's Paley on Agency, lo3, it is said that, al- 
 though it was not at the time known to be a trespass, yet if it eventually turns 
 out to be so, a promise of indemnity will not be implied. The author, in this 
 proposition, excludes any question of misrepresentation or fraud by the prin- 
 cipal, by which the agent was innocently drawn into the commission of the act. 
 On the other hand, in Story on Agency, § 33!), it is said that "there is no differ- 
 ence whether there is a promise of indemnity or not; for the law will not en- 
 force a contract of indemnity against a known and meditated wrong. Where the 
 agent acts innocently and without notice of the wrong, the law will imply a 
 promise on the part of the principal to indemnify him." The cases cited by 
 Judge Story are those where the conduct and representations of the principal 
 were calculated to induce the agent to believe that he was acting innocently, 
 while the principal knew he was not. Many of them are cases where an auc- 
 tioneer has sold goods which were in the possession of the principal, and which 
 he represents as belonging to him, knowing it to be otherwise, when afterward 
 it turns out that he had no title, and the agent is sued, and a judgment obtained 
 against him for their value. In these cases the principal would be permitted to 
 practice a fraud upon the agent were he not held liable, if the law did not re- 
 quire him to make indemnity. In Adamson v. Jarvis. 4 Bing. 6G, Best, Ch. J., 
 said ; " From reason, justice, and sound policy, the rule that wrong-doers cannot 
 have redress or contribution against each other, is confined to cases where the 
 person seeking redress must be presumed to have known that he was doing an 
 unlawful act. In Turner v. Jones, 1 Lansing, 147, Marvin, P. J., referring to 
 Coventry v. Barton, supra, said: "In that case, the evidence tended to show an 
 express promise ; but the learned judge does not notice any distinction between 
 an express and implied promise. It is a rule that Avhere there is an express 
 j)romise, the law will not imply one. The parties have chosen to fix the terms 
 of liability. But in the absence of an express promise, I understand it to be a 
 general principle to imply a promise, if the facts are such as, in equity and good 
 conscience, to require a promise. * * * What can be more equitable and 
 just than that he who claims a riglit to a thing, or to do an act, and employs 
 another to take the thing or do the act — such person believing that it was need- 
 ful thus to .serve his employer — should indemnify the person employed, in case 
 it should turn out that his employer could not defend him successfully in an 
 action brought by a third person ? " (Referring to St. John v. St. John's Church, 
 15 Barb. 34(5; Howe v. Bufialo, N. Y. & E. R. R. Co. 38 Barb. 124; s. c. 37 N. 
 Y. R. 297; and see note to Paley on Agency, p. 153). 
 
 ' Allaire v. Ouland, 2 Johns. Cas. 53. 
 
 " Randall v. Rich, 11 Mass. 494; Payson v. Whitcomb, 15 Pick. 212; Drum- 
 mond v. Humphreys, 39 Maine, 347.
 
 30 DEFINITION AND NATURE OF TRESPASS. § 31. 
 
 a trespass, and B. employ others to act for him in the trans- 
 action, and B. is compelled to pay his employees damages 
 recovered against them for the trespass, A. will be liable to 
 B. therefor.^ * 
 
 ' Stone V. Hooker, 9 Cowen, 154. 
 
 * The above case was an action on a promise to indemnify the plaintiff in 
 taking possession of a fishing ground belonging to one Mason. It was proved 
 that tlie plaintiff was employed bj' the defendant to take possession; that he en- 
 gaged a number of persons under iiiin ; that possession Avas taken in a peaceable 
 manner by drawing a seine around it ; and that no damage was done to any 
 person or property; that after they had taken possession, Mason came and 
 attempted to cut their ropes; and that they resisted and prevented him from 
 destroying their seine. Evidence was introduced to show that one Hounsfield 
 was tiie reputed owner, and the defendant the reputed agent, and that the 
 plaintiff' so considered him. But the promise was express by the defendant 
 tliat he would indemnify; and general reputation alone was relied upon to prove 
 the agency. Mason sued Staten and Winch, two of tlie persons employed by 
 the plaintiff, and recovered. Staten sued the plaintiff, and recovered on his 
 (the plaintiff's) promise of indemnity; which judgment the plaintiff paid, 
 ilason also obtained a judgment by confession against E. Sawyer and E. Sawyer, 
 junior, for the same cause. Objection was made to this judgment, on the 
 ground that it was by confession. It was proved that the defendant had notice 
 of the causes, and was asked to defend them, but did not. Two questions were 
 presented for the consideration of the court: 1. Whether tlie promise was to 
 indemnify against an unlawful act. If not, then 2. Whether tlie defendant 
 was liable, in consequence of the recovery of the judgment of Mason against 
 the Sawyers — that judgment having be obtained by confession. A verdict hav- 
 ing been found for the plaintiff in the court below, the Supreme Court. refused 
 to disturb it.
 
 CHAPTEH 11. 
 
 TRESPASS A3 A RE^MEDY. 
 
 1. When the action will lie. 
 
 2. Action for wrong committed I)y married woman. 
 
 3. Redress for the wrongful acts of minors. 
 
 4. Liability of master for wrongful acts of servant. 
 
 5. Liability of principal for wrongful acts of agent. 
 
 6. Responsibility of sheriff for the wrongful acts of his deputy. 
 
 7. Action against corporations. 
 
 8. Liability of partners. 
 
 9. Action by and against executors. 
 
 10. Liability of persons whose authority is derived from statute. 
 IL Action in the case of joint wrong-doers. 
 
 12. Settlement of claim for damages. 
 
 13. When party confined to remedy given by statute. 
 
 14. Declaration. 
 
 15. Plea. 
 
 16. Replication. 
 
 17. New assignment. 
 
 18. Right to open and close. 
 
 19. Evidence. 
 
 20. Damages. 
 
 21. Costs. 
 
 22. Verdict. 
 
 23. Amendment after verdict. 
 
 24. Judgment. 
 
 25. Writ of error. 
 
 26. New trial. 
 
 1. Whe7i the action id ill lie. 
 
 § 32. To maintaiu the action, there must not only have 
 been unlawful force, but the injury complained of must have 
 been the immediate consequence of the unlawful act.^ * 
 
 ' Barber v. Barnes, 2 Brevard, 491 ; Adams v. Hemmenway, 1 Mass. 145 ; 
 antey § 2. 
 
 * Blackstone (3 Com. 123) says: " It is a settled distinction, that, where an 
 act is done which is in itself an immediate injury to another's person or property, 
 there the remedy is usually by an action of trespass vi et armis ; but where there 
 is no act done, but only a cul])able omission, or where the act is not immediately 
 injurious, but only by consequence and collaterally, there no action of trespass 
 vi et armis will lie, l)ut an action on the special case for the damages consequent 
 upon such omission or act." 
 
 "Though time has softened down the differences between the actions of tres- 
 pass and trover, or other actions of the case, yet, looking back upon them, we 
 find that they are in their natures, as tlie pleaders phrase it, essentially distinct. 
 The one being for a wrong committed by the direct force of the malfeasor, in-
 
 32 TRESPASS AS A REMEDY. § 32. 
 
 When the injury is directly and forcibly inflicted, — as where 
 a blow is given to a person, or violence done to his beast or 
 other property, — the party aggrieved has generally no choice 
 of actions, and trespass is his only remedy. But the neces- 
 sity of suing in trespass extends no further, though the injury 
 may have followed the forcible act without the intervention 
 of any voluntary and responsible agency. Where he has 
 sustained a forcible injury, effected by means flowing from 
 the act of the defendant, but not operating by the very force 
 and impulse of that act, he may sue in trespass, constructively 
 treating those means as attached to, and forming part of, the 
 defendant's act, and thus brino-ino- that act into immediate 
 connection with the injury ; or, waiving all artificial views of 
 the matter, he may adopt the other form of action, and treat 
 the injury as consequential.^ * 
 
 eluded not only redress to the jjlaiutiff. l>ut punishment to the defendant; and 
 tlie judgment was a ccqnatm% ujjon wliich the person of the defendant was taken 
 and imprisoned until he paid a tine. Upon tiie other hand, when a party was 
 suljjected upon a tort not committed with force, as in trover or other actions 
 upon the case, the judgment was a misericordia, and the defendant was amerced, 
 that is, subjected to a nominal fine merely. This difference in the nature of the 
 actions, though there is now neither fine nor amercement, in legal idea so sejja- 
 rates them, tliat counts in trespass and trover cannot be joined in the same decla- 
 ration, as counts in actions of the same nature may be. If it should be said to 
 be, at this day, theoretical ratlier than practical, it distinctly marks the bound- 
 ary between cliff'erent kinds of wrong and the different remedies appropriate to 
 them " (Ames, C. J., in Hunt v. Pratt, 7 R. I. 283). 
 
 In Massachusetts, according to the new practice, there is no action of Ires- 
 pass in terras; but the action of tort embraces all actions of trespass (Willard v. 
 Baker. 2 Gray, 336; Sts. of Mass. of 1852, ch. 312, § 1). 
 
 In Virginia, it was held in an early case, that tlie fraudulently opening of cer- 
 tain packages in the care of A. and belonging to B., and taking therefrom a part 
 of their contents, was a trespass only (Cook v. Darby, 4 Munf. 444), 
 
 ' Waterman v. liall, 17 Vt. 128. 
 
 * In Waterman v. Hall, supra, the injury complained of consisted in driving 
 the plaintiff 's mare upon a log fence, whereby she was so much injured that she 
 died, and it was held tliat either trespass or case would lie. 
 
 Ogle et al. v. Barnes et al. 8 Term. R. 188, was an action of trespass on the 
 case for an injury done by the incautious and negligent steering of the defend- 
 ant's ship, whereby she sailed against the ship of the plaintiffs. The plaintifls 
 having obtained a verdict, the defendants moved in arrest of judgment that the 
 action was misconceived. The rule was, however, discharged. It did not ap- 
 pear that the injury resulted from the personal acts of the defendants, or that 
 they were on board the ship at the time; and altliough it was said that they had 
 the care, direction and management of the vessel, this might have been through 
 the medium of other persons. Grose, J., remarked that every presumption was 
 to be made in favor of the verdict ; that, at least, nothing was to be presumed 
 against it. And on the same principle, Lawrence, J., said : " The negligent 
 and imprudent management of the defendant's ship does not imply that any act
 
 § 33. WHEN THE ACTION WILL LIE. 33 
 
 § 33. It would scarcely serve any useful purpose to at- 
 tempt, in this place, a summary of all the numerous inva- 
 sions of right entitling the party aggrieved to this species of 
 redress. Each will be discussed hereafter under its appro- 
 priate head. A few miscellaneous examples may be enumer- 
 ated as follows: Every unwarrantable entry on another's 
 land ; ^ casting stones, rubbish or materials of any kind there- 
 on ; throwing water out of a pail into another man's yard ; 
 fixing a spout so as to discharge water upon another's land ; 
 suffering filth to ooze through a boundary wall, and to run 
 
 was done by them ; after having been guilty of the negligence which led to the 
 mischief, they may have done everything in their power to avoid the mischief; 
 and then, the running against the plaintiff's vessel may have been owing to the 
 wind and tide. If it had appeared in evidence that the defendants had wilfully 
 ' done, the act, the plaintiff must have been nonsuited." 
 
 The distinction between those trespasses for which there is a private remedy 
 only and those for which there may be a public prosecution, is not laid down in 
 the books with much accuracy or precision. It seems, however, to be clear, 
 that though every trespass which is a disturbance of the peace is indictable, a 
 mere trespass, which is the subject of a civil action, cannot be converted into an 
 indictable offense. It appears to be the doctrine of Kex v. Storr, 3 Burr. 1698, 
 and of Rex v. Baker, 3 Burr, 1731, that no indictment lies at common law for a 
 trespass committed to land or goods unless there be a riot, or a forcible entry... 
 According to those cases, a mere invasion of private property, without a dis- 
 turbance of the peace, does not concern the public, but is a private injury only 
 for which an action of trespass lies. In England, the killing or maiming cattle 
 belonging to another from motives of malice or revenge to the owner, is made 
 penal by statute. In Ranger's Case, 2 East's P. C. 1074, which was an indict- 
 ment at common law for unlawfully, with force and arms, and against the peace, 
 maiming a horse, it was held that the indictment contained no indictable offense, 
 for, if the offense was not within the statute, the act in itself was only a trespass. . 
 
 It would hardly do to act upon the distinction between actual and implied 
 force, and to hold that every trespass to property where there is actual force is ; 
 indictable. Such a doctrine would make almost every trespass or injury to pri^ 
 vate property the subject of an indictment, and would give to the courts a fear- 
 ful and alarming jurisdiction, which could be exercised in general to little other 
 purpose than vexation and oppression. In exercising criminal jurisdiction in 
 common law cases, courts should be under the guidance and restraint of estab- 
 lished principles and precedents, and should not allow themselves to go beyond 
 them. An undefined jurisdiction, or an unlimited discretion in criminal cases, 
 is an arbitrary and dangerous power incompatible with civil liberty, and ouo-hfc 
 never to be assumed or exercised; and unless an act is mude criminal by some 
 statute, or is clearly defined to be an offense by the connnon law, it ought not to 
 be treated or punislied as such. The civil remedy which the law affords for tres- 
 passes to property is, in ordinary cases, a sufficient corrective (State v. Wheeler 
 a Vt. 344). 
 
 Where one is deceived by a trespasser through a pretense of legal authority, 
 his consent to it will not deprive him of his legal remedy (Bagwell v. Jamison, 
 Cheves, 349). 
 
 ' 3 Blk. Com. 209; 3 Selwyn's N. P. 1101; Wells v. Howell, 19 Johns. 385; 
 Pfeiffer V. Grossman, 10 III. 53; Rowe v. Bradley, 12 Cal. 226; Harry v. Gra- 
 ham, 6 Jones' Law, N. C. 400. 
 Vol. L— 3
 
 M TRESPASS AS A REMEDY. § 34. 
 
 over the adjoining premises;'^ standing on one's own ground, 
 or in the street, and with missiles breaking another's house ; ^ 
 the holding over and claiming title by a tenant ; ^ scratching 
 the panel of another's carriage ; * unlawfully holding to 
 bail ; ^ the refusal of the collector of the revenue to deliver 
 goods after a tender of the duties;^ taking away one's 
 child ; ^ enticing away or driving off slaves, though the de- 
 fendant did not touch theni;^ harboring and concealing a 
 a runaway slave.^ ''^ 
 
 § 34. An action of trespass is proper, where the injury 
 is by the direct act of the party, though done negligently ; ^^ 
 and in such cases the person aggrieved may usually resort 
 either to trespass or to an action on the case." Trespass will 
 lie for cutting down trees on one's own premises whereby 
 one of them accidentally falls on his neighbor's land, though 
 there be no grass or vegetables growing thereon ; ^^ for injury 
 to a canal-boat by being run foul of by a steamboat ; ^'^ against 
 the master of a vessel for damaging a fishing net;^^ against 
 the captain of a steamboat for injmy to the person of another 
 by the discharge of a gun on board by his command, and in 
 
 ' Cox V. Burbridge, 13 C. B. N. S. 430; Mason v. Keeling, 1 Ld. Raym. 606. 
 
 ^ Prewitt V. Clayton, 5 Monr. 4. ^ Milhouse v. Patrick, 6 Rich. 350. 
 
 ' Fouldes V. Willoughby, 8 M. & W. 540. 
 
 ' Clay V. Sweet, 1 A. K. Marsh. 194. " Conard v. Pacific Ins. Co. 6 Pet. 362. 
 
 ' Vaughan v. Rhodes, 2 McCord, 227. 
 
 « Tyson v. Ewiug, 3 J. J. Marsh. 185; Glees v. Sikes, 1 Jones' L. N. C. 310. 
 
 ^ Kennedy v. M'Arthur, 5 Ala. 151. 
 
 '" Strohl V. Levan. 39 Penn. St. R. 177; Schuer v. Veeder, 7 Blackf. 342; 
 Hardin v. Kennedy, 2 M'Cord, 277; Johnson v. Castleman, 2 Dana, 377; Case v. 
 Mark, 2 Ham. 169. 
 
 ^' Brennau v. Carpenter, 1 R. I. 474; Blin v. Campbell, 14 Johns. 432. 
 
 '^ Nensorn v. Anderson, 2 Iredell, 42. 
 
 '' Case V. Mark, 2 Ham. 169. " Post v. Munu, 1 South. 61. 
 
 * The locating of a railroad through land so as greatly to injure the part not 
 taken, does not constitute trespass — it not appearing that the road could have 
 been so well located in any other way (Cleveland &c. R. R. Co. v. Stackhouse, 10 
 Ohio, N. S. 567). 
 
 A cause of action in trespass is not a debt within the contemplation of the 
 bankrupt act, and is not afl:ected by a bankrupt discharge. Tiie fact that a 
 verdict has been rendered, does not alter the case. Until judgment rendered 
 there is no debt whicli is reached by the discliarge. This has been repeatedly 
 held in the English courts, and these cases have been followed here (Kellogg v. 
 Schuyler. 2 Denio, 73, referring to Crouch v. Gridley, 6 Hill, 250),
 
 § 34. WHEN THE ACTION WILL LIE. 35 
 
 liis presence, though the injury resulted from a want of care 
 merely ; ^ but not in behalf of the owners of a vessel for the 
 shooting of the captain, whereby the voyage was delayed.^ 
 Where, during a war between England and France, a British 
 -cruiser chased an American schooner, supposing her to be 
 French, and upon overhauling her, through negligence, ran 
 into and sunk her, — the schooner having previously hove to, 
 — it was held that an action of trespass lay at common law, 
 at the suit of the master of the schooner against the com- 
 mander of the British vessel.^ When the negligence is gross, 
 trespass is alone appropriate. Therefore, where quarries 
 were worked, and rocks blasted in such a way that large 
 quantities of rocks and stones were thrown upon the dwell- 
 ing-house and premises of the plaintiff, breaking the doors 
 and windows, it was held that the remedy was trespass, and 
 not an action on the case.* When visible, tangible, corporeal 
 property is injured, if the injury be direct, immediate and 
 wilful, trespass is the j^i'oper form of action, although such 
 property be connected with, or be the means by which an in- 
 corporeal right is enjoyed.^* 
 
 " Rhodes v. Roberts, 1 Stew. 145. ^ Adams v. Hemmenway, 1 Mass. 145. 
 
 = Percival v. Hickey, 18 Johns. 257. * Scott v. Bay, 3 Md. 431. 
 
 ' Wilson V. Smith, 10 Wend. 324 ; Wilson v. Wilson, 2 Vt. 68. 
 
 * In Wilson v. Smith, supra, the plaintiff declared in case for wilfully cutting 
 and removing a part of the timbers and other materials composing the plaintiff's 
 dam across the Genessee river. At the circuit, the plaintiff* was nonsuited on 
 the ground that he ought to have brought trespass and not case. The Supreme 
 Court, in refusing a new trial, said: ''The ground on which the form of the 
 action was endeavored to be maintaiued at the trial, and also upon the argu- 
 ment at bar, was, that the right to erect the dam, for an injury to which the 
 action was brought, was a franchise, an incorporeal hereditament; and that for 
 an injury to property or right of that description, tresj^ass will not lie. The 
 principle here adverted to does not apply to the case. The right to erect the 
 dam is a franchise. It is, conferred by the Legislature, the sovereign power. It 
 is an incorporeal right. But the dam itself is not a franchise; nor is it incorpo- 
 real. The right to keep a ferry, or to erect a bridge, or to navigate a particular 
 river or lake by steam, may be a franchise. But the bridge itself, or the boats 
 and machinery employed in the ferry, or the navigation of the river, may, not- 
 withstanding, be the sujjjects of trespass." 
 
 Althougli as a general rule, for an injury to an incorporeal right case only 
 will lie, yet it does not follow that because a right is metaphj'sical, everything 
 acquired and used in its exercise must necessarily partake of the same unsub- 
 stantial nature. The distinction was taken and illustrated by Sutherland, J., in 
 Wilson V. Smith, 10 Wend. 324. The result of his argument is, that where the 
 property injured is tangible, though the right to use it in a particular way be a
 
 36 TRESPASS AS A REMEDY. §§ 35, 36. 
 
 § 35. One may maintain trespass for an act wliich lie 
 has no right to do himself. As, if I grant to a man a private 
 right of way over my land, and he should dig a ditch across 
 the place where the right of way is granted, I can maintain 
 trespass against him for the injury done to the land, though 
 I have no right to dig the same ditch, because it would ob- 
 struct his way. Again, suppose I let to a man a meadow to 
 cut and carry away the grass ; if he should plow it up, I can 
 maintain trespass against him ; yet I have no right to plow 
 up the meadow myself, for that would destroy the grass to 
 which he has a right. Indeed, in all cases where easements 
 exist, or where different persons have different rights to 
 occupy the same land, there will be certain acts which vio- 
 late coexisting rights which neither party may do, and for 
 which each has his remedy.^ 
 
 § 36. The fact that the trespass was committed with a 
 felonious intent does not take away the civil remedy.^ In 
 England, the- civil right to sue for injuries occasioned by 
 felonies is not merged or destroyed, but suspended until con- 
 viction or acquittal. It is there said to be the duty of the 
 party injured to bring the offender to justice, or to make 
 some effort thereto, and that until that duty is performed, he 
 
 franchise, the person entitled to the use not only may, but must bring trespass, 
 if the injury be direct. In The Queen v. Soley, 2 Sal'k. 594; s. c. 11 Mod. 115, 
 it was said that if the exercise of a corporate franchise of voting for officers be 
 hindered by noise and clamor, it is a trespass ; and several old books were cited, 
 ■which show that the violent disturbance of another in the use of any franchise 
 may be redressed by an action of trespass. In the Year Book, 2 H. 4, 11, it is 
 said of a man having a private way. if another disturb him by a" sword, club, or 
 other weapon, he may declare in trespass. In Woolr. on Ways, p. 58, this case 
 is cited with approbation. A man's cattle are driven from a common; trespass 
 lies (1 Chit. PI. 141). In Wilson v. Mi\ckreth, 3 Burr. 1824, the defendant hav- 
 ing dug and carried away turf and peat which the plaintiff had an exclusive 
 right to dig for his own use, in the soil of another within certain boundaries, 
 marked by mere stones, the plaintiff brought trespass quare clausum /regit. It 
 was objected that case alone would lie. Lord Manstield observed that there 
 •wanted nothing to answer the objection, but to state the case. He said the 
 plaintiff's right was separate, butted, and bounded ; a separate right of property 
 to take the profit of the turf, and to dig it for that purpose. It was exclusive 
 of all others, and the defendant had disturbed him. 
 
 ' Peck V. Smith, 1 Conn. 103. 
 
 » Cannon v. Burris, 1 Hill, S. C. 372; Nash v. Primm, 1 Mo. 178.
 
 § 37. WHEN THE ACTION WILL LIE. 37 
 
 cannot maintain an action.^ In New York, it is provided by- 
 statute ^ that the right of action of any person injured by 
 any felony shall not, in any case, be merged in such felony, 
 or be in any manner affected thereby,^ 
 
 § 37. With respect to the assignment of a claim for a tort, 
 it has been held, in New York, that although mere personal 
 actions which die with the person are not assignable ; yet 
 that torts for taking and converting personal property, or for 
 injury to personal property, and it seems, generally, all such 
 rights of action for a tort as would survive to the personal 
 representatives, may be assigned so as to pass an interest to 
 an assignee, which he can now assert under the Code in a 
 civil action in his own name, as he might formerly at com- 
 mon law assert in the name of the assignor.* * Substantially 
 the same rule has been adopted in Massachusetts.^ In Pennsyl- 
 vania, it has been held that an action for unliquidated damages 
 sounding in tort, before verdict, is not capable of assignment 
 so far as respects the rights of third persons ; but that, as 
 I)etween attorney and client, an agreement to assign the 
 whole or part of a future verdict is binding, and when 
 founded on sufficient consideration, will be enforced.® In 
 New Hampshire, in an action of trespass for taking and 
 carrying away two lambs, the defendant pleaded an accord 
 and satisfaction, and the plaintiff replied an assignment of 
 the cause to his attorney, and notice of the same to the de- 
 fendant before the accord. The defendant objected to the 
 validity of the assignment, contending that it was against 
 
 ' 4 Blk. Com. by Chitty, p. 6, note 8. 
 
 M N. Y. Rev. Sts. 5th ed. p. 589. 
 
 ' Koenig v. Nott, 2 Hilton, 323; 8 Abb. 384. 
 
 * Butler V. N. Y. & Erie R. R. Co. 22 Barb. 110; Purple v. Hudson River R. 
 R. 4 Duer, 74 ; McKee v. Judd, 2 Kernan, 622 ; Hall v. Robinson, 2 Comst. 293 ; 
 overruling Gardner v. Adams, 12 Wend. 297. 
 
 ' Rice V. Stone, 1 Allen, 506. 
 
 * Patten v. Wilson, 34 Penn. 299. 
 
 * Whether a wife can assign a claim for damages for a tort without her bus- 
 band, quwre. She could not do so at common law without his privity and con- 
 currence ; although courts of equity would sustain such conveyances when her 
 intention so to do was made apparent (Sherman v. Elder, 1 Hilton, 178).
 
 38 TRESPASS AS A REMEDY. § 38^ 
 
 public policy, cliampertous, and void. The assignment was, 
 liowever, sustained.^ * 
 
 2. Action for wrong committed hy married woman. 
 
 § 38. At common law, the husband is liable for the torts 
 or wrongful acts of his wife during coverture, when such 
 wrongs are prejudicial to the person or property of others. 
 The action for the redress of such wrongs is brought against 
 both husband and wife.^ If the tort be done by the wife in the 
 company of her husband, the law presumes coercion on his part, 
 or his direction to the wife, which excuses her fi'om responsi- 
 
 ' Jordan v. Gillen, 44 N. Hamp. 424. 
 
 ' Head v. Briscoe, 5 C. c& P. 484 ; Whitmore v. Delano, 6 N. Hamp. 543 ; 
 Mathews v. Fiestel, 2 E. D. Smith, 90 ; Kowing v. Manly, 57 Barb. 479; 3 Abb. 
 N. S. 377 ; Anderson v. Hill, 53 Barb. 238 : Baker v. Young, 44 111. 42 ; 2^ost, § 221. 
 
 * Maintenance, which includes champerty, is defined to be an unlawful taking 
 in hand or upholding of quarrels and sides, to the disturbance and hindrance of 
 common right ; or it may be confined to cases where a man improperly and for 
 the purpose of stirring up litigation and strife, encourages others to bring 
 actions or to make defenses which they have no right to make (3 Greenlf. Ev.- 
 § 180). In Fiudon v. Parker, 11 M. & W. 675, Lord Abinger, in order to show 
 "what would not constitute maintenance, says : " If a man were to see a poor 
 I^erson in the street, oppressed and abused, and without the means of obtaining 
 redress, and furnished him with money, or employed an attorney to obtain 
 redress for his wrongs, it Avould require a very strong argument to convince me 
 that that man could be said to be stirring up strife and litigation, and to be 
 guilty of the crime of maintenance. I am not prepared to say that in modern 
 times courts of justice ought to come to that conclusion."' The defendant may 
 show that the act was justifiable, as that he already had an interest in tbe suit 
 in which he advanced his money, though it were but a contingent interest, or 
 tliat he assisted the party because he was a poor man (3 Greenlf. Ev. § 182; 
 Perine v. Dunn, 3 Johns. Ch. R. 508). " A grant of a part of a thing in suit, 
 made in considei'ation of a precedent debt, is not within the meaning of the 
 statute against champerty" (1 Bac. Ab. 575; Arden v. Patterson, 5 Johns. Ch. 
 R. 44). Judge Story, while admitting the law against acts of champerty and 
 maintenance to be in force in the United States to a limited extent, says that a 
 party may purchase by assignment the whole interest of another in a contract 
 or security or other property which is in litigation, provided there be nothing in 
 the contract which savors of maintenance ; that is, provided he does not under- 
 take to pay any costs or make any advances beyond the mere support of the ex- 
 clusive interest which he has so acquired (2 Story's Eq. § 1050). In Shapleigh 
 V. Bellows, 4 N. Hamp. 355, Richardson. J., said: "There is a general under- 
 standing between attorneys and their clients that the former shall retain their 
 fees and disbursements out of the sum that may be recovered of the opposite 
 party ; and it is not uncommon that attorneys commence for poor people actions, 
 and make advances of money necessary to the prosecution of the suit upon the 
 credit of the cause. Thus, a person in indigent circumstances is enabled to 
 obtain justice in cases where, without such aid, he would be unable to enforce 
 a just claim.'' The same thing was said by Bell, C. J., in Christie v. Sawyer, 
 44 N. H. 298; and the general doctrine was recognized in Jordan v. Gillen, 44 
 ZST. Hamp. 424.
 
 § 39. ACTION FOR WRONG BY MARRIED WOMAN. 39 
 
 bility ; but sucli presumption is not conclusive, and tlie con- 
 trary may be established by proof. To exempt her from 
 liability, both of these concurrent circumstances must exist, 
 to wit : the presence and command of her husband. An 
 offense by his direction, but not in his presence, does not 
 exempt her from liability ; neither does his presence, if un- 
 accompanied by his direction.^ "* 
 
 § 89. The liability of the husband for the WTongful acts 
 of his wife lasts during the existence of the marital relation, 
 though they be living apart, unless they are separated by a 
 judicial decree.'- After the death of the husband, the mfe 
 
 • Bacon's Abr. Tit. Baron & Feme ; Keyu-orth v. Hill, 3 B. & Aid. 685 ; 
 M'Keown v. Johnson, 1 M'Corcl, 578; Hawk v. Haman, 5 Bin. 43; Wagener v. 
 Bill, 19 Barb. 321 ; Flanagan v. Tinen, 53 lb. 587 ; 37 How. 130 ; Peak v. Lemon, 
 1 Lans. 295; Cassin v. Delany, 38 N. Y. 178; Marshall v. Cakes, 51 Maine, 308. 
 
 ' Head v. Briscoe, supra. 
 
 * The wife, during the existence of coverture, cannot be arrested under 
 mesne process. To use the language of Blackstone, by marriage the husband 
 and wife become one person in law; that is, the very being or legal existence of 
 the woman is suspended during the marriage, incorporated or consolidated into 
 that of the husband (1 Blk. Com. 442). Such being the legal effect of the rela- 
 tion, the liability of the husband for the wife's tort, or quasi delict, stands upon 
 a principle of necessity as well as justice. For the wife alone cannot be sued 
 in such a case, and if the husband were also protected from responsibility, the 
 injured party would be entirely without redress (Macqueen on Husband and 
 Wife, pt. 1, p. 127. As the law stood in New York prior to the Code, a hus- 
 band might be arrested for a tort committed by his wife, and was bound to put 
 in bail for both. After judgment, she might be charged in execution with her 
 husband; but if arrested before judgment, she would be discharged upon proof 
 of her coverture, and on filing conimon bail (Solomon v. Waas, 2 Hilton, 179, 
 per Daly, J., citing Cornish v. Marks, 6 Mod. 17; 1 lb. 8; Ventris, 49; Crookes 
 V. Fry, 1 Bar. & Aid. 165 ; Taylor v. Whitaker, 2 Dow & Ry. 225 ; Clark v. 
 Norris, 1 H. Bl. 235; Russell v." Buchanan, 6 Price, 139; LangstafE v. Rain, 1 
 Wils. 149; Pitts V. Meller, Strg. 1167; Finch v. Duddin, lb. 1237; Berriman v. 
 Gilbert, Barnes, 203). 
 
 In New York, for the tort of the wife, the husband can still be sued. 
 He is a necessary party, for she cannot be sued alone. Both are chargeable 
 for a wrong done by the wife, and both must be joined as defendants. 
 Nor can they even plead separately, but must join in the plea. He is, 
 therefore, a necessary defendant in the action, and as the wife never could be 
 arrested, the 179th section of the Code, which declares that the defendant may 
 be arrested where the action is for injuring, or for wrongfully taking, detaining, 
 or converting property, must be applicable to him. The only provision that has 
 any bearing upon the subject is that part of section 179, which declares that no 
 female shall be arrested in any action, except for a wilful injury to person, char- 
 acter, or property, which did not materially change the law, the N. Y. Rev. 
 Sts. of 1829 having provided tiiat no female should be imprisoned in any civil 
 action founded upon contract (2 Rev. Sts. 428) ; and the provision of section 
 114 of the Code, that when a married woman is a party, her husband must be 
 joined with her, so far as it affects tliis question, was merely alErmatory of the 
 existing law (Solomon v. Waas, 2 Hilton, 179, per Daly, J.)
 
 40 TRESPASS AS A REMEDY. § 39. 
 
 may be sued alone for all tortious acts in whicli sLe has 
 participated, whether she was a sole actor in them, or 
 whether they were committed at the instigation of her 
 husband ; ^ and it is the same where the husband is civilly 
 dead.^ * 
 
 ' Vine V. Saunders, 4 B. N. C. 102. ' Bacon's Abr. Tit. Baron & Feme. 
 
 * The recent statutes of New York leave unaffected the liability of the hus- 
 band for the strictly personal torts of the wife. The theory upon which the 
 husband's liability proceeds is, that the marriage subjects the person of the wife 
 to the dominion and control of her husband, so that the commission of a tort 
 by her is, in a degree at least, the result of his fault or omission. But in New 
 York, in those transactions wherein the wife is now empowered to act for her- 
 self, as an unmarried woman free from the control of her husband, she is liable 
 to the same extent as any otiier person would be under the same circumstances ; 
 and although her husband may Ije present with her, she is presumed by the law to 
 act without his coercion or command. So, on the other hand, the husband is free 
 from all liability for her acts in such cases, to the same extent that another per- 
 son, not her husband, would be in her presence. The husband being by the 
 law deprived of the control of his wife's actions, he is by the same law relieved 
 from liability for her .acts. Accordingly, where the cattle of a married woman 
 trespass on land, the husband need not be made a party defendant in an action 
 therefor (Rowe agst. Smith, 38 How. Pr. R. 37; s. c.'SS Barb. 417; aff'd, 45 
 N. Y. 230). And where a person demanded from a married woman his property 
 in her house, which she refused to surrender, claiming to hold it on account of 
 the debt he owed her, it was held that in thus asserting her own right or claim, 
 she acted at her peril, like any one else under the same circumstances, and that 
 her husband was not liable at all as husband, and could only be charged to the 
 extent that he might have interfered (Peak v. Lemon, 1 Lansing, 295). In the 
 latter case, the court commented upon the changed relations of married women 
 effected by recent legislation in the State of New York, as follows: "The wife 
 can now own and have the present use and enjoyment of property, both real and 
 personal, and its rents, issues, and profits. She may carry on any trade or busi- 
 ness, and perform any labor or services on her sole and separate account ; and 
 her earnings from her trade, business, labor, or services are her sole and separate 
 property, and may be u.sed and invested by her in her own name (Laws of N. Y. 
 of 1860, ch. 90, § 2). By statute, she may also sue and be sued in all matters 
 having relation to her sole and separate property, in the same manner as if she 
 were sole. The husband is not liable for any of her contracts relating to her 
 property, trade, or business, and is exempted from costs in an action brought or 
 defended by any married woman in her name (Laws of N. Y. of 1862, ch. 172, 
 § 5). In regard to her separate property, she is made by our law as independent 
 as her husband ever was in the ownership and enjoyment of his property. The 
 earnings from her labor are her separate property. The law gives her the sole 
 management and control of these matters, and deems her competent to act for 
 herself, independently of her husband. Where her property, her dues, and her 
 litigation are concerned, the law now presumes her independence and personal 
 capacity ; and in relation to the management of her estate and the collection 
 of her debts, she is no longer presumed to be under the control or coercion of 
 any one. In respect to her new rights and interests, the disabilities of coverture, 
 as such disabilities existed at common law, are removed. The recent laws have 
 surrounded her with new relations, declared her independent in certain partic- 
 ulars, and granted her new rights, out of which also arise new duties and ob- 
 ligations." In Cassin v. Delany. 38 N. Y. R. 178, the questions decided arose 
 in 1855, before the statutes of 1860 and 1862 had conferred upon the wife this 
 new capacity for trade and business on her own account.
 
 § 40. REDRESS FOR THE WRONGFUL ACTS OF MINORS. 41 
 
 3. Hedress for the wrongful acts of minors. 
 
 § 40. A father is not liable for the wilful act of his 
 minor child, done in his absence and without liis authority 
 or approval ; ^ the child being answerable for its own act, 
 whether founded on positive wrong or a constructive tort or 
 fraud.^ * But it has been held that money intrusted by a 
 father to his infant son for a special purpose, paid by the son 
 solely as civil damages in settlement of a trespass, cannot be 
 recovered back by the father, although the money was paid 
 without his knowledc^e or consent.^ And if the father be 
 
 ' Tift V. Tift, 4 Denio, 175. 
 
 " Ibid. ; Milton v. Bragdon, 3 Fost. 507; Bullock v. Babcock, 3 Wend. 391 ; 
 Hanks v. Deal, 3 M'Cord, 257 ; Fitts v. Hall, 9 N. Hamp. 441 ; Lewis v. Little- 
 field, 3 Shepl. 233; Badger v. Phinney, 15 Mass. 359; Humphrey v. Douglass, 
 10 Vt. Ill-; post, § 371. 
 
 ' Burnham v. Holt, 14 H. Hamp. 367. 
 
 * In an action of trespass against minors of the ages of twelve and fourteen 
 years, for breaking and entering the plaintiff's close and disturbing their school, 
 it was held that as the defendants had no right to attend the school, they were 
 trespassers in entering the school house after being notified by the prudential 
 committee not to do so (School Dist. No. 1, in Milton v. Bragdon et al. 3 Fost. 507). 
 
 It has been held that an action of trespass may be maintained against an in- 
 fant, although in committing the offense he acted by the command of his father. 
 Scott V. Watson, 46 Maine, 362, was an action for breaking and entering the 
 plaintifi^s close and carrying away hay, to which the only defense made was, 
 that the defendant was a minor acting under the authority and by the direction 
 of his father. May, J., dissenting, said : "It is true, as a general rule, that in- 
 fants who have arrived at the age of discretion, are liable for their tortious acts. 
 But for the protection of infants, ought not the rule to be limited to cases where 
 the infant acts under such circumstances that he must know, or be presumed to 
 know, that the acts which he commits are unauthorized and wrong, when it 
 appears that in the commission of the acts he was under the control and direc- 
 tion of his father ? Will not an opposite doctrine tend to encourage disobedience 
 in the child, and thus be subversive of the best interests of the community ? 
 Will it not also tend to subject him to embarrassment and insolvency when he 
 shall arrive at full age ? If all the members of a family under age are to be held 
 liable in trespass or trover for the food which they eat, when that food is in fact 
 the property of another, but being set before them, they partake of it, in igno- 
 rance of such fact, by the command or direction of the parent, and under the 
 belief that it is his, will not such a doctrine be in conflict with the principle 
 that the common law is intended as a shield and protection against the improvi- 
 dence of infancy ? While the decided cases upon this subject seem to be limited 
 to cases of contract, is there not the same reason for extending it and applying 
 it to cases like the one before us ? In all cases which I have examined in which 
 infants have been held liable, the proof shows acts of positive wrong, committed 
 under circumstances where the infant must have known the nature and character 
 of his acts. If the doctrines of the opinion are to prevail in a case like this, 
 then the common law is but the revival of the old doctrine that the parents, by 
 eating sour grajjcs, have set the children's teeth on edge. The rule that a servant 
 who acts in ignorance of the rights of his principal is to be held liable for his 
 acts, does not fall within the principles for which I contend."
 
 42 TRESPASS AS A REMEDY. §§ 41, 42. 
 
 present at the commission of the wrong, and do nothing to 
 restrain his child, he will be responsible.^ 
 
 § 41. Minors are presumed wanting in discretion to 
 manage their own causes, or to appoint and instruct attor- 
 neys. Guardians are therefore to be assigned them, who 
 shall protect their rights and be accountable. Where after 
 judgment by default in an action of trespass against minors, 
 it appeared that no guardian ad litem had been appointed 
 for them, the judgment was reversed as to the minors, and 
 allowed to stand as to the other defendants.^ * 
 
 4. Liahility of master for wrongful acts of servant. 
 
 § 42. As the subject of this subdivision will hereafter 
 again be discussed with reference to special cases,^ we 
 must in this place be brief It may be stated generally, 
 that the liability of the master for the acts of his servant, 
 depends upon whether the servant at the time, and in the 
 particular in question, was acting under and in execution 
 of authority from the master ; in which case the master is 
 responsible.^ Where an intoxicated person in an omnibus 
 refused to get out and to pay his fare when the omnibus 
 reached its terminus, and the conductor dragged him out 
 violently and recklessly, and caused him to fall under the 
 wheel of a passing cab, it was held that there was evi- 
 dence for the jury of the wrongful act hav-ing been done 
 by the servant in the course of his employment about the 
 master's business, ^nd that the proprietor of the omnibus 
 was liable for the injury.^ f In Weed v. The Panama R. R. 
 
 ' Strohl V. Levan, 39 Penri. St. R. 177; post, § 208, 7iote. 
 
 » Wilford V. Grant, Kirby R. 114; but see Cruikshank v. Gardner, 2 Hill, 333. 
 
 ' Post, §§ 180, et seq. 
 
 * Greer V. Emerson, 1 Overt. 13; Elder v. Bemis, 2 Mete. 599; Hawks v. 
 Charlemont, 107 Mass. 414; Howe v. Newmarch, 12 Allen, 49; Goddard v. 
 Grand Trunk R. R. 57 Maine, 2a3. 
 
 * Seymour v. Greenwood, 6 H. & N. 359; SO L. .7. Excli. 189, qualifying 
 M'Manus v. Cricket, 1 East, 105. 
 
 * In Wilford v. Grant, sitjtra, the right of action was personal aud the original 
 plaintiff dead ; so that the action could not have been brought de novo. 
 
 t The principle that subjects the master for the tortious act of his servant,
 
 § 42. LIABILITY OF MASTER FOR ACTS OF SERVANT. 43 
 
 Co.^ the question was wlietlier the defendants were liable for 
 the detention of the train producing damages to the wife of 
 the plaintiff, although the detention was the wilful act of the 
 conductor, neither authorized nor approved by the defend- 
 ants. It was held that if his act was w^ithin the scope of his 
 employment, the defendants were equally liable whether the 
 act was wilful or negligent.* 
 
 done in the performance of his master's business and within the scope of the 
 general authority conferred, is the same as that which subjects him for the act 
 of his servant done by his express direction given at the time. In both cases, 
 the maxim applies, qiii facit per alium facit per se ; and the master shall be re- 
 sponsible for the acts of his agent to the same extent that he would be if he 
 personally committed the Avrong. But the remedies applicable to these several 
 injuries are different. In the former case, he is liable only in an action upon the 
 case founded upon the negligence of the servant in the performance of the 
 master's lawful business. Whereas, in the latter case, he is liable in an action 
 of trespass, caused by the act of the servant. But his liability to be sued in 
 trespass does not rest at all upon the relationship of master and servant, but 
 upon the fact that the act complained of was done by his express direction and 
 command ; and so in reality, as well as in law, is his own act, though done 
 through the instrumentality of another. A man shall not be made a trespasser 
 against his will, though he may be made liable in an action on the case for the 
 negligence of the servant while engaged in the business of the master, however 
 contrary to the master's wishes such negligence may be. Because, he who is 
 damaged ought to be recompensed, and a man must so use his own as to do no 
 injury to another; and where one of two innocent persons must suffer it is more 
 reasonable that he should suffer whose act of employing an unskilful or negli- 
 gent servant was the cause of the injury, than that the other, who has been 
 wholly in the right, should be compelled to bear a loss brought upon him 
 through another's want of care in not attending to his own business, and in en- 
 trusting it to the carelessness of his servant (The Thames Steamboat Co. v. Hou- 
 satonic R. R. Co. 24 Conn. 40). 
 
 The distinction between the trespass of the servant and the liability of the 
 master for negligence arising from an act which might amount to a trespass in 
 the servant is well illustrated in Croft v. Alison, 6 Eng. C. L. 614, which was an 
 action on the case against a master for the negligence of his servant in striking 
 the plaintiff's horses. When the horses were struck, the carriage of the plaintiff* 
 became entangled with the carriage of the defendant. The judge told the jury 
 to find for the defendant if the entangling was the result of the moving of the 
 plaintiff's horses which were left without a driver, and the whipping was for the 
 purpose of extricating himself from that situation ; but to find for the plaintiff in 
 case the entangling arose from the fault of the defendant's coachman. The court, 
 in sustaining this charge, say, if a servant driving a carriage, in order to effect 
 some purpose of his own, wantonly strike the horse of another person, and pro- 
 duce the accident, the master will not be liable. But if, in order to perform 
 his master's orders, he strikes, but injudiciously, that will be negligent and care- 
 less conduct, for which the master will be liable, being an act done in pursuance 
 of the servant's employment. 
 
 ' 17 N. Y. 3G2. 
 
 * A railroad company is liable for damages caused by the detention of freight 
 in consequence of a lar^e number of the engineers in the employ of the com- 
 pany suddenly and wilfully refusing to do duty. In Blackstock v. The N. Y. 
 & Erie R. R. Co. 20 N. Y. 48, the court said: " In the present case, the excuse 
 arises wholly out of the misconduct of the defendant's servants, who wrongfully
 
 44 TEESPASS AS A REMEDY. § 43. 
 
 S 43. ^^^lere the servant at the time he commits the 
 
 o 
 
 "wrong is not acting in the master's business, and within the 
 scope of his employment as his servant, but for some exclu- 
 sive object of his own, the master will not be liable.^* It 
 was accordingly held that the owuer of a steamboat was not 
 liable for the wilful misconduct of the master in iTinning her 
 against and injuring another steamboat.^ f So, where the 
 general superintendent of the defendant's mercantile business, 
 
 refused to perfonn their duty, and thus deprived the defendants for the time of 
 the ability to send forward the property; and the question is, whether the de- 
 fendant's case can be separated from that of the engineers, so that it can be held 
 that though the latter were culpable, their employers, the defendants, were with- 
 out fault, and consequently not responsible to the plaintiff. This involves a 
 consideration of the legal effect of the relations which exist between these 
 several parties. In the first place, there was no privity between the plaintiff and 
 the engineers. The latter owed no duty to the former, which the law can recog- 
 nize. If they had committed a positive tort or trespass upon the property, the 
 owner might pass by the employers and hold them responsible; but for a non- 
 feasance, or simple neglect of duty, they were only answerable to their em- 
 ployees. The maxim in such cases is, respondeat superior. Although the nature 
 of the contract between the railroad company and the engineers is not disclosed 
 in the finding, it is quite improbable that it was such that the latter might throw 
 up their employment upon two days' notice without any legal cause. If it were 
 of that character, the liability, moral as well as legal, would rest upon the de- 
 fendants ; for, in that case, they would have neglected a most ordinary precau- 
 tion for securing the continuous running of their trains. Assuming, then, that 
 abandoning their work was a breach of contract on the part of the engineers, 
 they by that act became responsible to the defendants for all its direct conse- 
 quences. The case, therefore, is one in which the actual delinquents, through 
 whose fault the injury was sustained, were responsible to the defendants, but 
 were not responsible to the plaintiff. This shows the equity of the rule which 
 holds the master or employer answerable in such cases. Its policy is not less 
 apparent. 
 
 ' Huzzey v. Field, 2 Cr. M. & R. 433, 440 ; Caldwell v. Sacra, 6 Litt. 118. 
 
 ' Vanderbilt v. Richmond Turnpike Co. 2 Comst. 479 ; 1 Hill, 480. 
 
 * It has been said that the implied authority of the servant is limited to those 
 acts which the master could himself do if personally present, and that if in the 
 performance of such acts the servant misconducts himself, the master will be 
 liable (Isaacs v. Third Av. R. R. Co. 47 K Y. 122; Poulton v. L. & S. W. R. R. 
 Co. 2 L. R. Q. B. 534). 
 
 t In Vanderbilt v. Richmond Turnpike Co. supra, the judge, in the court 
 below, refused to charge the jury that if the servant of the defendants wilfully 
 produced the collision the defendants were not lial)le. The plaintiff recovered, 
 and the judgment was reversed by the Supreme Court, which held that if the 
 collision was wilful on the part of the defendant's servant, the defendant was 
 not liable, referring to Wright v. Wilcox, 19 Wend. 343. After another trial, 
 the case went to the New York Court of Appeals (2 Comst. 479), where the doc- 
 trine applied in the Supreme Court was sanctioned ; and it was further held, that 
 the corporation was not liable, although the wilful act producing the injury was 
 authorized and sanctioned by the president and general agent thereof. The 
 reason of the decision, stated in the opinion delivered by Cady, J., is in sub- 
 stance that a general or special agent in committing or ordering a wilful trespass 
 to be committed acts without the scope of his authority.
 
 § 45. LIABILITY OF MASTER FOR ACTS OF SERVANT. 45 
 
 suspecting that the plaintiff had stolen the goods of his em- 
 ployer, caused her to be arrested and searched, it was held 
 that as authority for the arrest could not be implied from the 
 general employment of the superintendent of the store, his 
 employer was not liable.^ 
 
 § 44. The law does not impute malice or a wanton and 
 wilful trespass to the transaction of any lawful business, con- 
 trary to the wishes of the party, any more than it will im- 
 pute crime. These acts maybe done through the instrumen- 
 tality of agents. But it must be shown as a fact that they 
 were ordered or authorized to be done. If I command my 
 servant to distrain, and he ride on the distress, he shall be 
 punished, and not 1} So, if my servant, contrary to my will, 
 chase my beast into the soil of another, I shall not be pun- 
 ished.^ And if my servant without my knowledge put my 
 beasts into another's field, my servant is the trespasser, and 
 not I ; because, by the voluntary putting of the beasts there 
 without my assent, he gains a special property for the time, 
 and so, to this purpose, they are his beasts.^ If a servant 
 employed to drive his master's carriage were to leave the 
 carriage, and seize the horse of another whose carriage ob- 
 structed his passage along the highway, and thereby occasion 
 an injury, his master would not be liable ; because, in that 
 matter he was not acting in the employment of his master.^ 
 So, too, if a man send his horse to the shop of a blacksmith 
 to be shod, and while the horse is standing at the door, the 
 servant of the blacksmith, without the knowledge of his 
 master, beat the horse, and thereby injure him, the servant 
 alone will be responsible.^ * 
 
 § 45. We are not merely to inquire who is the general 
 
 ' Mali V. Lord, 39 N. Y. 381. = Noy's Maxims, ch. 44. 
 
 ' Bro. Abr. Trespass PI. 43^j. " 2 Roll, Abr. 553. 
 
 " Cbuvch V. Mansfield, 20 Conn. 284. 
 
 ' Ibid. ; and see Lamb v. Palk, 9 C. & P. 629. 
 
 * This doctrine does not militate against the cases in which a master has been 
 holden for the mischief arising from the negligence or unskilfuluess of the serv- 
 ant who had no purpose but the execution of his master's orders.
 
 46 TRESPASS AS A REMEDY. § 46. 
 
 owner of real estate iu ascertainiug who is responsible for 
 acts done upon it injurious to another, but who has the 
 efficient control ; for whose account, at whose expense, under 
 whose orders, is tlie business can-ied on, the conduct of which 
 has occasioned the injury.^ Where in an action for trespass 
 to land it appears that the defendant himself did not tres- 
 pass thereon, it must be j)roved that the relation of master 
 and servant subsisted between the defendant and him w^bo 
 committed the acts.^ And it may be observed that one who 
 is employed to oversee and take tlie entii'e charge of work 
 requiring j)eculiar skill, is so far a servant tliat his employer 
 is liable for his misfeasance.^ But if it appear that the acts 
 were not done by the defendant, or by his order and direc- 
 tion, or at his expense, or for his benefit, and though done 
 on land of which, he was the general owner, that it was not 
 land of whicli he at the time had the possession or control, 
 lie will not be liable. Earle v. Hall ^ was an action of tres- 
 l^assfor entering the plaintiff's close and undermining a divis- 
 ion wall between the houses of tlie plaintiff and defendant. 
 It was proved that the defendant entered into a contract 
 under seal witb one Gilbert to convey land to Gilbert, that 
 Gilbert covenanted to build a brick house upon the land, and 
 to pay for the land by the first of October following, and that 
 W'hile the agreement was in force the worknien of Gilbert, in 
 preparing to build the house, undermined the wall of the ad- 
 joining house belonging to the plaintiff, which was tlie tres- 
 pass charged. It was held that the plaintiff could not recover. 
 
 § 46. The general principle to be extracted from the 
 cases in regard to the use of real property is, that tlie owner 
 of real estate, either absolutely or for the time being — he 
 "who has tke management and control, and takes the benefit 
 and profit of the estate ; he at whose expense, and on whose 
 account the business is conducted — shall be responsible to 
 third persons for injury caused by those who are carrying on 
 
 ■ Earle v. Hall, 2 Mete. 353. - - McGuire v. Grant, 1 Dutcher, 356. 
 
 ' Morgan v. Bowman, 22 Mo. 538. * Supra.
 
 § 47. LIABILITY OF MASTER FOR ACTS OF SERVANT. 47 
 
 the business by which they are damnified ; and this, whether 
 the persons thus employed and engaged are working on 
 wages or by contract, and whether they are employed 
 directly by the principal or by a steward, agent, or manager 
 having the superintendence of his estate. Several princi- 
 j)les of law seem to be referred to as the source of this 
 responsibility. One is, that he who does an act by another 
 does it himself Though not the work of his hands, it is the 
 result of his will. His mind, his intent, and his purposes are 
 the efficient cause of the operations conducted by others. It 
 is therefore he, who, in the conduct of his own business, 
 causes the damage complained of, and it is of him that re- 
 dress shall be obtained. 
 
 § 47. Another principle is, that every one shall so use 
 his own property as not, in the management of it, to hurt 
 that of another. Having the power to determine what 
 agents shall be employed, what business shall be carried 
 on, upon the estate of which he has either the ownership 
 or the enjoyment and possession, it is alike the dictate of 
 justice and public policy that he shall be responsible for 
 the conduct of those whom he may employ or dismiss, 
 and whose movements he has the power to direct. Ac- 
 cordingly, if an employee, while cutting down trees by his 
 employer's orders, and in the scope of his employment, 
 trespass upon another's land, the employer is liable there- 
 for.^ Where A. voluntarily undertook to help B. make a 
 brush fence, and was suffered by B. to proceed in his serv- 
 ice without objection or any other restriction, except to be 
 careful not to cut trees standing on the plaintiff's land, which, 
 however, he did for want of proper information, the act being 
 done in the j^resence of B. and for his benefit ; it was held 
 that B. was liable in trespass for the acts of A.^ The re- 
 sponsibility of the employer has been extended to the acts of 
 subagents. In Bush v. Steinman,^ the defendant had pur- 
 
 ' Luttrell V. Hazen, 3 Sneed, 20. = Hill v. Morey, 3C Vt. 178. 
 
 ' 1 Bos. & Pul. 404.
 
 48 TRESPASS AS A REMEDY. § 48. 
 
 chased a house near a road and contracted with a surveyor 
 to repair it for a stipulated sum. He employed a carpenter, 
 *the carpenter a bricklayer, and the latter a lime burner ; and 
 the act which caused the injury to the plaintiff was done by 
 the lime burner's servant in laying a heap of lime in the 
 road. At the trial, Eyre, C. J., thought the relation was too 
 remote, and that the action would not lie. But after argu- 
 ment, he concurred with the other judges in the contrary 
 opinion. The ground he put it on was this : Here, he says, 
 the defendant, by a contractor and by agents under him, was 
 repairing his house ; the repairs were done at his expense^ 
 and the repairing was his act. Heath, J., founded his 
 opinion upon the single point that all the subcontracting 
 parties were in the employ of the defendant. And Eooke, 
 J., stated the general proposition that he who has work 
 going on for his benefit, and on his own premises, must be 
 civilly answerable for the acts of those whom he employs. 
 In the case of a loss by the misconduct of a servant, the 
 party injured has no means of ascertaining whether due 
 caution was exercised by the master in employing him or 
 prudence in retaining him ; and in the case of a controversy 
 between the master and the servant as to which was the real 
 delinquent, the owner of the property must generally be 
 without the necessary evidence to charge the liability upon 
 the master. The rule which the law has adopted, by which 
 the master is held responsible for the acts of his servants, is 
 the one best calculated to secure the observance of good 
 faith on the part of persons intrusted with the property of 
 others. The motive of self-interest is the only one adequate 
 to secure the highest degree of caution and vigilance by the 
 master. 
 
 § 48. But where, for aught that appears, the trespasses 
 were voluntary on the part of the defendant's employees, and 
 unconnected with the employment, no presumption arises 
 that the defendant authorized the unlawful acts. Nor can 
 an inference be di-awn against him by reason of his omission
 
 § 48. LIABILITY OF MASTER FOE, ACTS OF SERVANT. A9 
 
 to forbid the acts, in the absence of proof that he knew that 
 his employees had committed or intended to commit them. 
 In an action of tresj)ass quare clausmn f regit., the judge 
 charged the jury that, if they should find that the defendant 
 employed workmen to cut and convert into coal wood upon 
 his land, and deliver the coal at his furnace ; and the work- 
 men, in order to transport the coal to the furnace, cut and 
 made roads on the plaintiff's land, and transported the coal 
 over the same with the defendant's teams and carts, and de- 
 livered the coal at the furnace for the defendant's benefit, the 
 presumption was, that the acts of the workmen were done 
 by the authority and direction of the defendant, unless he 
 showed that he had forbidden the workmen from going on 
 to the plaintiff's land and doing the acts complained of 
 But a verdict having been found for the plaintiff, the Supreme 
 Court granted a new trial for misdirection.^ In a case in 
 New Hampshire, the following instruction was held errone- 
 ous : " That if, after the line was ascertained and well known 
 to the defendant, the defendant went upon the plaintiff's 
 land and hauled away the timber for his own use, that would, 
 in law, be an afiirmance of what his servant had done in cut- 
 ting over the line, and render the defendant answerable for 
 the act of the servant, in the same manner as if he had know- 
 ingly and intentionally committed the act himself" Carry- 
 ing the timber away might have had some tendency to have 
 convinced the jury that the defendant was cognizant of and 
 approved the original cutting ; but such would not have been 
 the necessary legal effect of tlie evidence as a rule of law ; 
 and most clearly, an affirmance of the cutting in this manner 
 would not have altered the original nature of the act, so as 
 to have rendered that wilful and malicious that was, orio-in- 
 ally, an unintentional and accidental trespa'js. Could it have 
 had any bearing in this point of view, it would only have 
 been for the consideration of the jury. But the evidence was 
 
 ' Churcli V. Mansfield, 20 Conn. 384. 
 Vol. I.— 4
 
 50 TEESPASS AS A REMEDY. § 49^ 
 
 not submitted to tlie jury in tliis manner, but was held to be 
 conclusive against the party as a matter of law.^ 
 
 5. lAahility of principal for lorongful a-cts of agent. 
 
 § 49. As the law upon this subject is founded upon the 
 same analogies as exist in the case of master and servant, but 
 little need be said under this head ; especially as most of 
 the reported decisions relate not to positive wrongs com- 
 mitted by agents, but to nonfeasances or mere omissions of 
 duty. It may be observed that the principal is liable in a 
 civil suit to third persons for the torts of his agent in the 
 course of his employment, although the principal did not au- 
 thorize, or indeed know, of such misconduct, or even if he 
 forbade the acts or disapproved of them.^ This rule of lia- 
 bility is not based upon any presumed authority in the agent 
 to do the acts, but upon the ground of public policy, and 
 that it is more reasonable, where one of two innocent persons 
 must suffer from the wrongful acts of a third person, that the 
 principal, who has placed the agent in the position of tnist 
 and confidence, should suffer than a stranger. All that is 
 necessary to render the principal liable for the malfeasance 
 or torts of the agent is, that the tort be committed in the 
 course of the agency ; ^ not that the agency authorized it, but^ 
 as it is expressed by Paley,* that the employment afforded 
 the means of committing the injury. The principal is not, 
 however, liable in trespass for the wrongful acts of his agent 
 in matters beyond the scope of the agency, unless he has ex- 
 pressly authorized them to be done, or has subsequently 
 adopted them for his use and benefit, with notice of the 
 illegality.* Where a broker, under a warrant from the land- 
 
 ' Batchelder v. Kelly, 10 New Hamp. 436. 
 
 ' Storv on Agency, §§ 308, 452, 456; Perkins v. Smith, Saver, 40; Lane v. 
 Cotton. 12 Mod. 472; Hunter v. The Hudson River Iron Co. 20 Barb. 493; Phila. 
 R. R. Co. V. Derby, 14 How. 468; Southwick v. Estes, 7 Cush, 385. 
 
 ^ Croft V. Alison, 4 Barn. & Aid. 590; Puryear v. Thompson, 5 Humph. Tenn. 
 397; Harris v. Nicholas, 5 Munf. 483; Brown'v. Purviance, 2 Harris & Gill, 316; 
 Kerns v. Piper, 4 Watts, 222, 
 
 ^ Dunlap's Paley Agency, p. 300. 
 
 * When a general agent commits or orders a wilful trespass to be committed,.
 
 § 50. sheeiff's responsibility for acts of deputy. 51 
 
 lord, authorizing him to distrain the goods and chattels of 
 the tenant, seized a fixtm^e which was afterward sold and the 
 proceeds paid to the landlord, it was held that the receipt of 
 the proceeds did not make the landlord a trespasser, it not 
 being shown that he was aware of the illegal seizure.^ 
 
 6. Responsibility of sheriff for the lorongful acts of his 
 
 deputy. 
 
 § 50. An action of trespass may be maintained against a 
 sheriff for the wrongs of his deputy, although no immediate 
 command, consent or recognition by the sheriff of the act 
 alleged to be a trespass be proved ; ^ and without averring 
 the misfeasance of the deputy ; the law, for the sake of a more 
 convenient and effectual remedy, proceeding upon the assumj^- 
 tion that the act of the deputy is the act of the sheriff. In 
 Pratt V. Bunker,^ it was contended that the trespass proved 
 was committed by one Williams, and that there was no proof 
 that, in committing it, he was acting under color of legal 
 process, or as deputy of the defendant. But it was held that, 
 as the plaintiff had proved that Williams took the property 
 and sold it at auction, and that he was then the deputy of 
 the defendant, taken in connection with the defendant's brief 
 statement that such acts w^ere done by virtue of legal process 
 against one Kines, who was the owner of the property, it was 
 prima facie sufficient to maintain the action, and to call on 
 the defendant to sustain his justification. Where a trespass 
 has been committed by the deputy, the party aggrieved has 
 his election to sue either the sheriff or deputy ; but he cannot 
 sue both. If he chooses to bring an action against the dep- 
 uty, and proceeds to judgment and execution against him, 
 there can be no good reason for allowing him afterward to 
 resort to the sheriff.* * 
 
 he acts without the scope of his authority, tlie same that a special agent would 
 (Vanderbilt v. The Richmond Turnpike Co. 3 N. Y. 479). 
 
 " Freeman v. Rosher, 18 L. J. Q. B. 340. 
 
 ' Grinnell v. Phillips, 1 Mass. 530; post, §§ 502, 503. ' 45 Maine, 569. 
 
 " Taft V. Metcalf, 11 Pick. 456; Campbell v. Phelps, 17 Mass. 344. 
 
 * In Grinnell V. Pliillips, myra^ the court said: "The law undoubtedly is
 
 52 TRESPASS AS A REMEDY. § 51. 
 
 7. Action against corporations. 
 
 § 51. It has sometimes been said, that an action of trespass 
 cannot be maintained against a corporation ; that if the mem- 
 bers of a corporation, though ever so formally assembled, do, 
 or agree to do, an act which is illegal and wrong, the law will 
 not consider it the act of the corporation, but of the acting 
 individuals in their natural capacities ; that as such act 
 binds no one, so it authorizes no one to carry it into effect, 
 and if an injury ensue, all who act in the business are 
 volunteers therein.^ Bat it has Ions: been held, that althous:h 
 corporations can only act through the instrumentality and 
 agency of others, yet that they are liable in trespass for torts 
 authorized or commanded by them."^ * In an early case in 
 
 that, in trespass, all are principals, as well those who command or procure, as 
 those who, being present, are the immediate agents in the act complained of. 
 Therefore, in declaring in actions of tliis nature, it is never necessary to distin- 
 guish between the adviser, the companions, and the agent, for each and all are 
 answerable severally and jointly, and all as principals. That this is the legal 
 effect, where the proof is of a direct command, is not disputed. That an im- 
 plied command has the like operation, appears by the legal doctrine respecting 
 masters and servants. It seems to be well established, by ancient and modern 
 decisions, that the master is liable for every act done by the servant in the course 
 of his emjjloyment ; the law implying, from their relation, and from the circum- 
 stances of the act, that it is done by the procurement and command of the mas- 
 ter. The law views the relation of a sheriff and his deputies in the same light. 
 In official acts, they are not distinguishable from each other. The relation of 
 command and agency is more intimate and direct; and the responsibility of the 
 principal or master for the acts of the servant is maiutaiued upon stronger reasons 
 of puldic policy and regard to the public welfare, than in anj case which can be 
 supposed within the common relation of master and servant." 
 
 ' Wilcox V. Sherwin, 1 Chipman, 72; Foote v. Cincinnati, 9 Ham. 31. 
 
 "" 6 Vin. Abr. 288, 289*; Main v. Northeastern R. R. Co. 12 Rich. 82; 
 Lyman v. The White River Bridge Co. 3 Aiken, 255 ; Lee v. The Village of 
 Sandy Hill, 40 N. Y. 4-42; Conrad v. The Village of Ithaca, 16 lb. 158; 
 Howell V. The City of Buffalo, 15 lb. 512; Hickok v. The Trustees of the 
 Village of Plattsburgh, 16 lb. 161, note; Weet v. The Trustees of the Village of 
 Brockport, lb. 161; Storrs v. The City of Utica, 17 lb. 104; post, §§ 582, 937. 
 
 * In Lyman v. The White River Bridge Co. snpi-a, the action was trespass for 
 breaking and entering the plaintiff 's close, and erecting thereon a bridge, and 
 the general question was whether an action of trespass would lie against a 
 corporation. The count, in holding the affirmative said : " It is urged that as a 
 corporation is an artilical being, intangible, and existing only in contemplation 
 of law, it cannot, as such, commit or be sued f(U' a tort, but the action must be 
 brought against each person who committed the tort by name; and this prop- 
 osition appears not only to receive countenance, but support from some of the 
 authorities. But on looking into the books, we find many cases, in which actions 
 en the case arising e.v delicto, where the plea is not guilty, have been maintained 
 against corporations at common law. If an action on the case will lie against 
 a corporation for a tort, there seems to be no good reason why trespass will not
 
 § 51. ACTION AGAINST CORPORATIONS. 53 
 
 Massachiisetts, Chief Justice Parsons, in delivering the 
 opinion of the court, said : " That a capias does not lie 
 against a corporation is evident ; but that no action of tres- 
 pass lies, is questionable. For it is agreed that a corporation 
 may be fined on indictment, and the fine levied by distress ; 
 and why may not a corporation be amerced, and the amerce- 
 ment be collected in the same manner? " And he proceeds 
 to cite a number of ancient cases, in which trespass was held 
 to lie against a corporation ; such as trespass for distraining 
 the plaintifiT's cattle until he paid a toll, which he was not 
 bound to pay ; trespass for disturbing the plaintiif in the 
 pi'ofits of his liberties, and for disturbing him in holding a 
 leet ; and in an assize, as a disseizor with force. He con- 
 cludes by saying, that it is very clear from the exam- 
 ination of the old books, that some actions of trespass, 
 might, at common law, be maintained against aggregate 
 corporations.^ 
 
 also lie. The distinction between the two actions is not, whether the act 
 complained of was accompanied with force, or whether there was an intent to 
 do the injury; but whether the injury was the direct and immediate effect of 
 the act complained of, or was the collateral consequence of some act jjreviously 
 done. If a corporation is liable in case, for consequential damages proceeding 
 from an act authorized by them, they may and ought to be liable in trespass for 
 an immediate or direct injury arising from an act authorized by them or done by 
 their command. Indeed, there seems to be no difference, either on principle, or 
 on technical grounds, as to the liability of a corporation in actions of the case 
 ex delicto^ and actions of trespass. In reason, and on principle, if a man Is 
 injured by any tortious act of a corporation, done by its authority, he ought to 
 have his remedy by action against them, as much as against a natural person. 
 In actions in form ei delicto, as case, trover, trespass, (fcc, the rule is that the 
 action may be brought either against the person who actually committed the 
 injury, or against him who commanded or authorized it. And it is a general 
 principle that a corporation is liable for the acts of its servants, agents or 
 officers while acting within the limits of the authority delegated to them by the 
 corporation, or acting under its command. It is a falhicy to say, that because 
 a corporation has no natural existence or physical powers, they cannot commit 
 a trespass. It is true, they cannot commit a trespass but thi'ough the in- 
 strumentality of others; neither can they make a contract, or do any other 
 corporate act whatever, but through the agency of others. Considering the 
 numerous incorporated companies, established among us for various purposes, 
 having extensive powers, and carrying on extensive business, it seems necessary 
 that this principle should be adopted; for without it, the party injured might, 
 in many cases, be witiiout any adequate remedy." 
 
 A demurrer to a declaration charging a corporation in trespass, admits that 
 an authority to do the acts complained of, was given by the corporation, either 
 under their corporate seal, or by their corporate vote (Ibid). 
 
 ' Riddle v. Props, of Merrimack Locks & Canal, 7 Mass. 169.
 
 54 TRESPASS AS A REMEDY. §§ 52, 53. 
 
 8. Liability of partners. 
 
 § 52. Partners are liable for a trespass by themselves, or 
 their agents, employees, or servants in the legitimate conduct 
 of the partnership business ; or if the trespass be done by 
 the direction of their agent acting within the scope of his 
 powers ; or by workmen, under the same qualification while 
 in the employment of the firm.^ But a partner cannot make 
 his copartners responsible for a trespass committed by him, 
 unless the wrong-doer was acting within the proper scope 
 and business of the partnership, or the firm afterward take 
 advantage of, and adopt the transaction.^ 
 
 9. Action hy and against executors. 
 
 § 53. An action of trespass will not lie at common law 
 for or against executors for injuries done to or by their tes- 
 tators.^ But the common law doctrine, that torts die with 
 the person, has been largely innovated upon by modern 
 legislation, in consequence of its harsh and unjust operation 
 in many cases, so that now, in some of the States, hardly 
 any cause of action for damages, either to person or prop- 
 erty, is allowed to be defeated by the death of either the 
 party injured, or the party liable.* 
 
 " McKnight v. RatcliflF, 44 Penn. St. R. 156. 
 
 " Petrie v. Lamont, Car. & M. 93 ; Taylor v. Jones, 42 N. Hamp. 25. 
 
 ' Middleton v. Robinson, 1 Baj', 58 ; Gordon v. Robinson, 1 Browne, 325 ; 
 see post, §§ 533, 939. 
 
 * The New York Revised Statutes (xo\. 3d, 5th ed. p. 746) provide that for 
 "wrongs done to the property, rights, or interests of another, for which an action 
 might be maintained against the wrong-doer, such action may be brought by the 
 executors or administrators of the wrong-doer after the death of the latter. But 
 the foregoing does not apply to actions for assault and battery and false im- 
 prisonment. When the wrongful act causes the death of the person injured, 
 although occurring under such circumstances as amount in law to a felony, the 
 right of action survives to the personal representatives ; but the action must be 
 commenced within two years, and the amount of recovery cannot exceed five 
 thousand dollars (lb. p. 589). 
 
 In Vermont, among other statutes upon this general subject, there is one 
 providing that in actions to recover damages for any hodily hurt or injury, the 
 death of either party shall not defeat the action, but the same may be prosecuted 
 hj or against the representative of such deceased party. In Whitcomb v. Cook, 
 38 Vt. 477, which was an action brought by an administrator for an alleged un- 
 lawful arrest and imprisonment by the defendant, the question arose whether it 
 was an action within the foregoing statute, for a bodily hurt or injury. It was
 
 § 54. AUTHORITY DERIVED FROM STATUTE. 55 
 
 10. Liability of ])ersons lohose autliority is derived from 
 
 statute. 
 
 § 54. It is a general rule that whenever a person justifies 
 under any autliority whatever, he must show every matter 
 and part of the authority under which he justifies. This 
 rule is especially aj^j^licable to persons whose powers are 
 solely derived from statute. Justices of the peace have no 
 common law jurisdiction in civil cases. They are confined 
 strictly to the authority which the statute has conferred, and 
 can take nothing by implication. So far as regards mere 
 matters of form, and the regularity of their proceedings, 
 when parties are properly before them, their acts will be 
 viewed with liberality. But if they proceed in a matter not 
 within their cognizance, or without having acquired jurisdic- 
 tion over the party in the forms prescribed by law, any 
 judgment which they may render will be absolutely void. 
 This doctrine is not peculiar to courts held by justices of the 
 peace in civil cases, but apj)lies to all courts and ofiicers 
 
 held that the statute embraced every case of physical injury to the person caused 
 in any unlawful manner. The court said: "We think the clear and plain in- 
 tent of the statute was to make all actions survive when the cause of action was 
 for a physical injury to the person, caused in any unlawful manner. The word 
 bodily was used so as to carefully exclude certain actions which are sometimes, 
 by law writers, included in the class of actions for personal injuries, such as 
 actions of slander, and for malicious suits or prosecutions. The defendant 
 claims that the language of this act should be strictly construed, as an act in 
 derogation of the common law. That principle is entirely sound, and is recog- 
 nized by the courts in all cases to which it properly applies, when some common 
 law right is taken away. But it is also a settled rule in the construction of stat- 
 utes, that remedial statutes are to be liberally construed, which, in our judg- 
 ment, is the proper rule to be applied to this statute. It is made to preserve an 
 already accrued and existing right from being lost by this harsh and technical 
 rule of the common law. One may have suffered great loss and wrong by the 
 unlawful and wicked act of another. If the wrong-doer dies, is it not just and 
 right that the injured i)arty should be recompensed out of the estate of the per- 
 petrator ? Or, if the injured party dies, ought not the successors to his rights 
 and property to be entitled to the recompense, rather than that the wrong-doer 
 should escape all the consequences of his act ? But without resorting to any 
 other rule than the plain and obvious meaning of the language of the statute, we 
 are satisfied it covers the case of an unlawful arrest and imprisonment of the 
 plaintiff's body ; and, in our view, it would be monstrous to hold that an action 
 for a slight blow or kick survived, and a claim for being unlawfully incar- 
 cerated in a prison, however long, did not, but died with the person of the 
 plaintiff." 
 
 In Wisconsin (under Rev. Sts. ch. 135, sects. 12, 13), an executor or admin- 
 istrator may maintain an action for injuries done to a married woman which 
 ■ -caused her death (Whiton v. Chicago &c. R. Co. 21 Wis. 305j.
 
 56 TRESPASS AS A EEMEDT. §§ 55, 56. 
 
 exercising a special and limited jurisdiction. They must 
 pursue their authority, or their acts will be void. The 
 principal distinction between courts of general and those of 
 limited jurisdiction is, that, in the one case, jurisdiction will 
 be presumed until the contrary appears, while, in the other, 
 no such presumption is indulged ; but they must show their 
 authority in every case. In pleading the judgment of a 
 superior court, it is enough to say that judgment was ren- 
 dered ; and it will lie on the other party to show a want of 
 power. But in pleading the judgment of an inferior tribu- 
 nal, the authority to decide, as well as the judgment, must be 
 alleged.^ Where a statute prohibits jurisdiction, or where a 
 prohibition is necessarily implied, by its being vested exclu- 
 sively in another tribunal, no consent can give jurisdiction.^ 
 
 § 55. What is true of inferior courts, is also true of the 
 doings of corporate bodies erected by law for private and 
 local purposes. Such corporations, though they derive their 
 existence and powers from public laws, are created for 
 special objects. Their organization, and the proceedings of 
 those who claim to act under them, cannot be known judi- 
 cially until proved, and must be shown to be in pursuance 
 of the law which creates and authorizes them, otherwise 
 they are totally void.^ 
 
 § 56. The principle is universal that whenever any per- 
 sons assume to act under a special and limited power con- 
 ferred by law, their doings may be avoided by showing that 
 they had no jurisdiction, or that they exceeded the limits of 
 their authority, and that they thereby became trespassers.^ 
 
 ' Hoose V. Sherrill, 16 Wend. 33; Barrett v. Crane, 16 Vt. 246; Evertsou v. 
 Sutton, 5 Wend. 281; Batchelder v. Currier, 45 N. Hamp. 460; Smith v. 
 Knowlton, 11 N. Hamp. 191; Kittredge v. Emerson, 15 N. Hamp. 227; San- 
 born V. Fellows, 22 II3. 473; State v. Richmond, 26 lb. 232; Bigelow v. 
 Stearns, 19 Johns. 39; Allen v. Gray, 11 Conn. 95; Smith v. Rice, 11 Mass. 507; 
 post^ § 359. 
 
 ^ Batchelder v. Currier, sitpra ; People v. White, 24 Wend. 520; Heyer v.. 
 Burger, 1 Hoffman's Ch. R. 1 ; Blatchley v. Moser, 15 Wend. 215. 
 
 ^ Bates V. Hazeltine, 1 Vt. 81. 
 
 * Cate V. Cate, 44 N. Hamp. 211; Sanborn v. Fellows, 22 lb. 473; State v.. 
 Richmond, 26 lb. 236; Blood v. Sayre, 17 Vt. 609; j^ost, § 362.
 
 § 57. AUTHORITY DERIVED FROM STATUTE. 57 
 
 Where, therefore, the common council of a city directed the 
 mayor to sign and issue a warrant for the collection of an 
 illegal assessment, which he accordingly did, it was held 
 thai he was liable as a trespasser for property taken under 
 the warrant.-' In Robinson v. Dodge,^ the trustees of a 
 school district were held trespassers, because they issued 
 their warrant to collect a tax, when the only error was tliat 
 the district meeting had not specified the amount of the tax 
 to be raised, that being required by the statute. 
 
 § 57. Justices of the peace have always been held re- 
 sponsible to individuals for all the injurious consequences 
 arising from every illegal act they may have done, either in 
 the execution of their ministerial powers and duties, or in 
 the adjudication of causes over which they have no jurisdic- 
 tion ; and all who directly and knowingly partici23ate with 
 them are equally liable.^ In Wallsworth v. McCuUough,* a 
 justice of the peace was held to be a trespasser who issued a 
 warrant in a case of bastardy without the application of an 
 overseer of the poor, though the overseer subsequently rati- 
 fied the act. Where the plaintiff procured a second execu- 
 tion to be issued by a justice, after the first had been 
 indorsed satisfied, upon the suggestion that the first execu- 
 tion was lost or destroyed, it was held that the justice and 
 plaintiff were both trespassers.^ Schermerhorn v. Tripp ^ 
 was an action of trespass against a justice of the peace, a 
 constable, and the plaintiff in a suit before the justice, for 
 taking goods under an execution issued by the justice, to 
 which the defendants joined in pleading the general issue. 
 Judgment having been rendered for the defendants in the 
 Common Pleas, it was reversed by the Supreme Court, on 
 
 ' Williams v. Brace, 5 Conn. 190. ^ 18 Johns. 351. 
 
 ^ Sullivan v. Jones, 3 Gray, 570; Clarke v. May, lb. 410; Briggs v. Ward- 
 well, 10 Mass. 357 ; Percival v. Jones, 3 Johns. Cas. 49; Russell v. Perry, 14 N. 
 Ilamp. 153; Kennedy v. Terrill, Hardin, 490; Poulk v. Slocum, 3 Blackf. 421; 
 Rembert v. Kelly, Harper, 65; Alexander v. Hoyt, 7 Wend. 89. 
 
 ' 10 Johns. 93. 
 
 ' Lewis V. Palmer, G Wend. 3G7. " 3 Caines, 108.
 
 58 TRESPASS AS A REMEDY. § 57. 
 
 tlie groimd that tlie justice was disqualified and had no 
 jurisdiction, for the reason that he was a tavern-keeper, and 
 that, as the others united with him in pleading the general 
 issue, they were all trespassers." 
 
 * The New York statute provides that no justice of the peace being an inn- 
 holder or tavern-keeper in fact shall have jurisdiction; but that if a judgment 
 shall have been rendered by him before he became disqualified, he may issue 
 execution. 
 
 When penalties are to be recovered by information before justices of the 
 peace, under a statute which directs that the justices shall summon the person 
 against whom the information is exhibited to appear and plead to, and to attend 
 the healing of the information, at a time and place named in the summons, such 
 summons to be served "ten days at the least " before the time appointed; there 
 must be ten clear days between the service and the day of hearing ; and where the 
 conviction showed on its face that the party was convicted ex 'parte on default of 
 appearance to a summons appointing too early a day, it was held that such con- 
 viction was no defense to an action of trespass for enforcing it (Mitchell v. Fos- 
 ter, 13 Ad. & E. 472; 9 Dowl. P. C. 527). 
 
 Case V. Shepherd, 2 Johns. Cas. 27, was an action of trespass quare clausum 
 fregit^ for treading down the plaintiff's gras > and cutting and carrying away 
 grain. It appeared tliat the plaintiff was indicted for trial before the defendant, 
 who was a justice of the peace, under the act to prevent forcible entries and 
 detainers; that the plaintiff', having pleaded to the indictment, obtained, before 
 trial, a cei-tiorari from the Supreme Court to remove all the proceedings, which 
 he delivered to the defendant, who, notwithstanding, proceeded to try and con- 
 vict the plaintiff ; and that the plaintiff was thereupon turned out, and one Bull 
 put into possession of the premises. By the court: "There can be no doubt 
 that the delivery of the certiorari to the justice superseded his powers, and ren- 
 dered all subsequent proceedings before him coram nan judice and void. As the 
 magistrate holds a court of special and limited jurisdiction, and proceeded after 
 his power was taken away by the certiorari, he became a trespasser, and is liable 
 as such." 
 
 Under the statute of Massachusetts of 1783, ch. 58, § 1, the party obtaining 
 judgment in a civil action is entitled to have his execution thereon at any time 
 after the expiration of twenty-four hours, and within one year next after the 
 entering up of such judgment. In Briggs v. Wardwell, 10 Mass. 356, the ques- 
 tion arose, under the foregoing statute, whether an action of trespass would lie 
 against a justice of the peace who issued execution in a civil action in less than 
 twenty-four hours after judgment. It was held that it would. Jackson, J., de- 
 livering the opinion of the court, said: "We are of opinion that the issuing of 
 the execution in this case was a ministerial act of the defendant, for which he 
 is liable to the party injured, in like manner as the clerk of any other court 
 would be who should, without any express order of the court, issue an execution 
 contrary to the provisions of the statutes. As far as respects this question, it 
 is as if there were no judgment subsisting until the expiration of the twenty- 
 four hours. There is nothing on which an execution could lawfully issue; and 
 the defendant might as well have issued it before judgment was rendered, or 
 after the expiration of the year." 
 
 In Kendall v. Powers, 4 Mete. 553, the doctrine laid down in Briggs v. 
 Wardwell, supra, that a magistrate is liable to a party in a civil action for dam- 
 ages resulting to him from the illegal issuing of a final process upon a judgment, 
 was considered, both by the cousel of the parties and by the court, so familiarly 
 and firmly established, that it was not even adverted to as presenting any possible 
 question (See Sullivan v. Jones, 2 Gray, 570). 
 
 Although the magistrate has jurisdiction of the offense, and a right to issue 
 process against the person, yet if such process be issued without complaint, it is
 
 §§ 58, 59. AUTHORITY DERIVED FROM STATUTE. 59 
 
 § 58. When a magistrate issues process without authority 
 of law, the grouud of his liability is, that he has given a 
 personal direction or request to do the acts which the 
 process directs to be done. His responsibility is therefore 
 limited to such acts as are done according to the mandate of 
 the instrument. In determining w^hether the acts were done 
 in pursuance of the process, the same considerations are 
 applicable which would have belonged to the case, had the 
 process been entirely legal. In the case of an attachment, 
 it will be considered a command to attach, and not to sell 
 property ; and to attach the property of the defendant, and 
 not of another. It is a direction to the particular officer, or 
 class of officers named, and not a different one ; and if a 
 person not mentioned or referred to in it, undertake to 
 execute it, he is considered not only as having volunteered, 
 but as having intended to act officiously, without the consent 
 of the magistrate, and against his express direction, as 
 contained in the process. The doings of one so volunteering, 
 are, by no legal intendment, the acts of the magistrate, as 
 they w^ere not performed by his assent, counsel, or procure- 
 ment.^ 
 
 § 59. Where a statute requires a justice of the peace 
 before issuing an attachment to have satisfactory proof 
 offered him of the departure or concealment of the debtor, 
 with intent to defraud his creditors, or to avoid being 
 personally served with prpcess, a mere error in judgment as 
 as to the legality of the proof offered, will not make the 
 magistrate a trespasser by issuing the attachment. But 
 such proof in order to give the justice jurisdiction, must be 
 
 void, and all concerned are trespassers (Allen v. Gray, 11 Conn. 95, per Bissell, 
 J., citing Grumon v. Raymond, 1 Conn. 40; Slocum v. Wheeler, lb. 452; Tracy 
 V. Williams, 4 Conn. 113; Martin v. Marshall, Hob. 03; Perkins v. Proctor, 2 
 Wils. 386; Morgan v. Hughes, 2 Term R. 225; Smith v. Bouchier, 2 Stra. 993; 
 Com. Dig. Tit. Trespass, C, 1 ; Bac. Abr. Tit. Trespass, D, 2). 
 
 In Indiana, a justice of the peace who causes the goods of an absconding 
 debtor to be attached witliout the previous filing of a bond, according to the 
 statute, and the party who procures the writ to-be issued are trespassers (Bar- 
 keloo V. Randall, 4 Blackf. 476). 
 
 ' Merritt v. Read, 5 Denio, 352.
 
 CO TRESPASS AS A EEMEDY. § 60. 
 
 at least colorable. He cannot act upon his own knowledge 
 or mere belief on tlie subject, however well founded. Proof, 
 in the sense in which it is here used, means legal evidence, 
 or such species of evidence as would be received in the 
 ordinary course of judicial proceedings. In Vosburgh v. 
 Welch,^ it appeared that the evidence upon which the 
 justice acted did not amount even to the information of the 
 constable, that the debtor had departed the county, or was 
 concealed with intent to defraud his creditors, or to avoid 
 being served with process. The court remarked that the 
 justice might have believed the fact upon mere report, or 
 the information of some person in whom he had confidence ; 
 but that that was not satisfactory proof within the meaning 
 of the law ; that the return of the constable on an execution 
 against the debtor, was not such proof; and that as the 
 justice must be considered as having issued the attachment 
 without any proof whatever of the departure or concealment, 
 and therefore without authority, he was liable as a tres- 
 passer. 
 
 § 60. If a magistrate have jurisdiction, his acts, though 
 erroneous, will not make him liable.^ Under a statute 
 conferring upon a justice of the peace jurisdiction to issue a 
 summons as the first process in the commencement of a suit 
 before him, when the defendant is a freeholder or an in- 
 habitant, having a family within the county where the 
 justice resides, if a summons be issued in a case in which it 
 is not the appropriate process, the objection to be available 
 to the defendant in such process, must be taken before the 
 justice ; and if he errs in his decision, his general power will 
 protect him and all ofiicers concerned in the execution of 
 the process from being treated as trespassers. And where 
 upon a complaint made before a justice of the peace, for an 
 assault and battery, the warrant was irregular in form, it 
 
 ' 11 Johns. 175 ; but see Collins t. Ferris, 14 lb. 246. 
 
 "^ Adkins v. Brewer, 3 Cowen, 206; Blood v. Savre, 17 Vt. 609; Lancaster v. 
 Lane, 19 111. 242; Houlden v. Smith, 14 Jur. 598; 19 L. J. 170; Stanton v. 
 Schell, 3 Sandf. 323.
 
 § Gl. ACTION IN THE CASE OF JOINT WRONG-DOERS. 61 
 
 was held that as the magistrate had jurisdiction, aud 
 everythiDg was right except the process, the defendant by 
 not making his objection, while before the magistrate, waived 
 all objection.^ ^' 
 
 11. Action in the case of joint wrong-doers. 
 
 § 61. We have seen^ that where an immediate injury is 
 committed by the co-operation of several, they are all tres- 
 passers ; and as any one of them is liable for the acts of all, 
 it follows that they may be sued either jointly or severally.^ f 
 
 ' Com. V. Henry, 7 Cush. 512. ^ Ante, § 23; and see post, § 212. 
 
 ^ Allen V. Craig, 1 Green. 294 ; post, § 222. 
 
 * Horton v. Auchmoody, 7 Wend. 200, was an action against a justice of the 
 peace for the sale of the property of the plaintiff on an execution issued under 
 a judgment rendered by the defendant after an unauthorized adjournment. 
 The Supreme Court held that the justice was not liable as a trespasser, and that 
 the judgment of the Common Pleas which was for the plaintiff, must be 
 reversed. Savage, Ch. J., delivering the opiuion, said: "The argument for 
 the plaintiff in error is, that though the justice once had jurisdiction, he had 
 lost that junsdiction ; that the adjournment being an act not authorized by law, 
 the cause was at an end, and any further proceeding was without jurisdiction, 
 as much so as a judgment would be without any previous process. It must be 
 conceded, that so far as the parties litigant before the justice in that suit are 
 concerned, tliis court have considered an unauthorized adjournment an end of 
 the suit; but where a remedy is sought against a justice, the principle of 
 judicial irresponsibility should be interposed as far as it is applicable. It has 
 been held in some of the cases, that where the plaintiff refuses or neglects to 
 appear upon the coming in of the jury with their verdict, it is irregular to 
 receive the verdict; yet in such a case, we held that a judgment rendered upon 
 a verdict so taken was not void but voidable ; that the justice having jurisdiction 
 of the subject-matter and the person, had power to enter a judgment of dis- 
 continuance; that the plaintiff was for that purpose at least, within the juris- 
 diction of the justice, and that a judgment in his favor, though irregular, was 
 not void. Where the justice has no jurisdiction, a judgment rendered by him 
 may be attacked collaterally, want of jurisdiction in the court may be shown, 
 though if jurisdiction be conceded, the judgment cannot be inquired into. In 
 this case, the justice had jurisdiction of the cause, of the parties, and of the 
 question of adjournment. His error was an error of judgment, and according 
 to the decisions above referred to, the consequence of that error, was, that the 
 cause was discontinued as between the parties, and any judgment entered after 
 such adjournment, was liable to be reversed. Bat I believe, that none of the cases 
 consider such a judgment, a proper subject of inquiry as to its merits in another, 
 tribunal. If the justice is liable in this case, it must be conceded that such 
 liability arises from a judicial act, which is contrary to established principles." 
 
 t In Henly v. Broad, 1 Leon. 41, Henly brought trespass against Broad, and 
 declared that he, together with a certain J. S., broke the plaintiff's close. The 
 defendant pleaded to issue, and it was found for the plaintiff. It was objected 
 in arrest of judgment, that the count was not good, because it appeared from 
 the plaintiff's own showing that the action ought to have been brought against 
 another not made a party defendant. Judgment was, however, given for the 
 plaintiff, and upon a writ of error to the Exchequer Chamber, it was affirmed on 
 the principle that it was cured after verdict by the statute of jeofails. The
 
 62 TRESPASS AS A REMEDY. § Gl. 
 
 K the action be joint, there can be no separate estimate of the 
 injury committed by each;^ but a general verdict for the 
 plaintiff will apply to all of the defendants.^ Actions may, 
 however, be depending against each trespasser severally at 
 the same time, for the trespass committed by them jointly; 
 and the pendency of one is not pleadable in abatement of the 
 other.^ Neither is a recovery against one a bar to an action 
 against his cotrespasser,^ though the plaintiff can have but 
 one satisfaction.^'^ 
 
 ground of this decision was that a trespass is in its nature the separate act of 
 each individual, and that, therefore, the pUiintifE has his election to sue all or 
 any number of the parties. Serjeant Williams (1 Saund. 291), in his notes, after 
 speaking of the case of Henly v. Broad, and several other cases which recognize 
 the principle that if the plaintiff show that the tort was done jointly by the de- 
 fendant and another, the suit shall abate, says that there is no ground for the 
 distinction, and that it was always held that if the declaration only stated that 
 the defendant, together with certain persons unknown, did the wrong, the action 
 should not abate. 
 
 In Rose v. Oliver, 2 Johns. 365, a motion was made in arrest of judgment 
 because one Russell had been returned not found on the capias, and was com- 
 plained of, together with the other two defendants, as having committed the 
 trespass. The plea was put in by the two defendants returned taken, and the 
 verdict found them guilty of the trespass alleged. It was contended that the 
 plaintiff could not have judgment against them, as it appeared by his own show- 
 ing that Russell, whom he had made a defendant, had not been brought into 
 court or answered. It was held that the trespass being joint or several, the 
 plaintiff was at liberty to proceed against one or more of the defendants, and 
 that the declaration, though informal, was cured by the verdict. Spencer, J., 
 in delivering the opinion of the court denying the motion, said: "The method 
 of declaring was probably adopted under the notion that the statute authorizing 
 proceedings against such joint debtors as were returned taken extended to this 
 case ; an idea certainly very inaccurate. The effect of this mode of declaring we 
 conceive to be the same as complaining that A. and B. did a trespass simul cum 
 quodamC. D. ; because in neither case is the person not taken a party to the suit. 
 There is no reason why, contrary to the established principle that trespassers 
 are joint or several at the election of the injured party, the plaintiff" should be 
 obliged to make all the trespassers parties, even if he know them. It can pro- 
 duce no injury to the defendant, because on the trial there would be no e^^dence 
 of the separate and distinct acts of the trespassers. As to the idea that a con- 
 tribution could be enforced, and that, therefore, all known to the plaintiff shquld 
 be made parties, it is enough to say that this is not a case of contribution ; and 
 if all the damages were levied on one of the two defendants found guilty, he 
 would be remediless." 
 
 ' Gilpatrick v. Hunter, 24 Maine, 18; Brown v. Allen, 4 Esp. R. 158; Wynne 
 V. Anderson, 3 C. & P. 596 ; but see Johnson v. Hannahan, 3 Strobh. 435. 
 
 ^ Cane v. Watson, 1 Morris, 52. 
 
 ' Sheldon v. Kibbe, 3 Conn. 214 ; Jones v. Lowell, 35 Maine, 538. 
 
 * Marsh v. Berry, 7 Cowen, 344; Sheldon v. Kibbe, 3 Conn. 214; Day v. 
 Porter, 2 M. & Rob. 151 ; Knott v. Cunningham, 2 Sneed Tenn. R. 204. 
 
 " Wright v. Lathrop, 2 Ham. 33; Hawkins v. Hatton, 1 N. & M. 318; Mc- 
 Gehee v. Shafer, 15 Texas, 198; Page v. Freeman, 19 Mo. 421. 
 
 * Until the case of Brown v. Wooton, Cro. Jac. 73, the law seems to have
 
 § G2. ACTION IN THE CASE OF JOINT WRONG-DOEKS. G3 
 
 § 02. In order to render one man liable in tresj^ass for 
 the acts of others, it must appear either that they acted in 
 concert, or that the act of the individual sought to be charged, 
 ordinarily and naturally produced the acts of the others.^ * 
 
 been well settled, and required satisfaction as a bar in trespass. In Brooke's 
 Abr. tit. Judgment, pi. 98, it is stated that if two commit a trespass the injured 
 party may sue them separately ; and one defendant cannot plead that the plaintiff 
 has obtained judgment against the other for the same trespass and taken him in 
 execution. In Morton's Case, Cro. Eliz. 30, it was determined that a judgment 
 and execution against one joint trespasser which had been satisfied, was a bar to 
 a suit against a cotrespasser ; although this was questioned by one of the judges. 
 In the same year, and in the same court, the case of Lendall and Pinfold, 1 Leon. 
 19, was decided. The plaintiflf brought an action of trespass, " and had judg- 
 ment and execution accordingly." Afterwards he brought an action for the 
 same trespass against a cotrespasser, and the judgment and execution were con- 
 sidered a good bar. This case, unless by the phrase "had execution," is meant 
 that the plaintiff had the effect of execution, is not reconcilable with the deter- 
 mination in Morton's Case, nor with Hitchcock and Thurland's Case, 3 Leon. 
 123, decided in the same court the succeeding year. In the latter case, which 
 was an action of trespass, the defendant pleaded that the plaintiff had obtained 
 judgment against J. S., a cotrespasser, "and had execution of damages." The 
 court held the plea good. Plowden said, "it was a good bar, for that all is but 
 one trespass ; and satisfaction by one of the trespassers is satisfaction for the 
 other. And if the plaintiff had released to the other trespassers, the defendant, 
 if he had it in his hand, might well plead it." The case of Brown v. Wooton, 
 Cro. Jac. 73, which was an action of trover, introduced a new principle, and de- 
 cided that a judgment and execution in behalf of a person concerned in the same 
 trespass were a bar. The ground of the determination was, " that the cause of 
 action being against diverse, for which damages uncertain are recoverable, and 
 the plaintiff' having judgment against one person for damages certain, that which 
 was uncertain before is rendered in rem judicatam and to certainty, which takes 
 away the action against the others." Some decisions, since the case just men- 
 tioned, have followed it as a precedent, and particularly Wilkes v. Jackson, 3 
 Hen. & Munf. 355. But many cases have considered satisfaction as requisite to 
 bar a separate suit. That a judgment alone is not a defense was adjudged in 
 Livingston v. Bishop, 1 Johns. 290; and in Thomas v. Rumsey, 6 Johns. 26, it 
 was thought necessary to plead judgment with satisfaction, and on this latter 
 ground the plea was held sufiicient. In Bird v. Randall, 3 Burr. 1345, Lord 
 Mansfield, speaking of joint trespassers, remarks that the plaintiff may proceed 
 against all or any of them, " yet he shall have but one satisfaction for the same- 
 injury." 
 
 If two actions are brought, and both go into judgment, and satisfaction is 
 obtained in one, although there can be no extinguishment of the cause of action 
 in the other, because it is merged in the judgment, the court, exercising its 
 " sense of equity," will stay execution against the damages if it has not issued, 
 remand it if it has, and has not been served, or grant relief by audita querela, 
 which is in the nature of a bill in equity, if it has, but permit execution for the 
 costs (Knickerbacker V. Colver, 8 Cowen, 111). 
 
 ' Guille V. Swan, 19 Johns. 381; Brooks v. Ashburn, 9 Geo. 297; Whitaker 
 V. English, 1 Bay, 15; Chanet v. Parker, 1 Rep. Con. Ct. 333; Johnson v. 
 Thompson, 1 Bald. 571; Ously v. Hardin, 23 111. 403; Hamilton v. Fulton, 28 
 Mo. 359; Storer v. Hobbs, 52 Maine, 144; Eddy v. Howard, 23 Iowa, 175. 
 
 * In Langdon v. Bruce, 27 Vt. G57, which was an action of trespass for cut- 
 ting timljcr, it appeared that the defendant and one Watts bought a lot adjoin- 
 ing the land of the plaintiff. Watts to have the timber, and the defendant the 
 land. There was a dispute as to the true division line, of which the defendant
 
 64 TRESPASS AS A REMEDY. § 62. 
 
 It was accordingly lield that an action of trespass for forcibly 
 entering a house and turning the person in possession out, 
 could not be maintained against a military surgeon who 
 simply made a requisition on the commandant of a post for 
 a proper building for a hospital, and pointed out the house in 
 question ; it not being proved that the surgeon personally 
 participated in, aided, or incited the forcible dispossession.^ In 
 an action of trespass against several, on account of injury done 
 to the plaintiff by a ball thrown by one of the players at 
 wicket, the judge laid down the following as essential in 
 order to convict the defendants as joint trespassers: 1st. It 
 must be shown that the parties were engaged in the common 
 pursuit of a game at wicket on the public highway. 2d. 
 That the game was of such a character that, from the width 
 of the road, and the number of persons usually passing there- 
 on, it would endanger those traveling on the public high- 
 
 knew ; but he supposed and claimed that the judgment in an action of trespass 
 in favor of the former owner of the lot purchased by him and Watts, determined 
 the question of title in their favor, and he so told Watts, vpho cut the timber on 
 a strip of land which was ultimately decided to belong to the plaintiff. The 
 defendant had nothing to do with tlie cutting of the timber, except that he let 
 one of his hired men assist Watts, and charged Watts therefor. The only ques- 
 tion presented at the trial in the county court was in regard to the defendant's 
 participation in the taking of the timber by Watts. The Supreme Court, in 
 affirming the judgment, which was for the defendant, said : "We think it 
 could scarcely be claimed that the defendant's letting his hired man to Watts to 
 assist in cutting the timber, could be regarded as any participation in the act of 
 Watts in cutting the timber off from any other than the lot owned by him and 
 defendant. Nor should we regard the division of the lot in the manner stated, 
 even with the belief that the timber in question was on the defendant and Watts' 
 lot, as any participation of defendant in the taking of this timl)er, unless the 
 defendant did something, or said something which was intended to induce 
 Watts to cut this timber, and which had that eti'ect, or unless he was in some 
 ■way benefited by the timber being cut. But nothing of this kind is found. If 
 it appeared affirmatively that the division was made upon the basis of this tim- 
 ber forming a portion of the joint property in any such manner as to leave de- 
 fendant liable to make up the loss to Watts, the defendant must undoubtedly be 
 held liable. But so far from this appearing, it would rather seem that he had no 
 interest whatever in that question, but that Watts took the risk of where the 
 lines of the lot were, as to the timber, and the defendant as to the land. And 
 nothing appears in the case to show that the defendant took any part whatever 
 in determining Watts where to cut timber, more than by ex|)ressing an opinion 
 in regard to the effect of the former decision in settling the boundaries of the 
 dividing line of the two lots. And having no interest in the question, so far as 
 the timber was concerned, we do not see why it should involve him in the act 
 of Watts in cutting the timber any more than it would had he had no interest in 
 the land." 
 
 ' Mclutyre v. Green, 36 Geo. R. 48.
 
 § 62. ACTION IN THE CASE OF JOINT WRONG-DOEKS. 65 
 
 way ; that tlie individual who threw the ball should have 
 beeu acting in the usual manner of persons engaged in the 
 game of wicket. It was held, that as these instructions re- 
 quired that the plaintiff should satisfy the jury that the de- 
 fendants had entered upon a common pursuit of a dangerous 
 tendency, which might result in an • injury to one using the 
 highway for the ordinary purpose of travel, they comprised 
 all the elements necessary to constitute a joint liability and 
 to render all engaged joint trespassers.^ Williams v. Shel- 
 don,^ was an action of trespass against a number of persons 
 for entering npon the plaintiff's land, and cutting and carry- 
 ing away logs and shingles. It appeared that all the defend- 
 ants were seen npon the lot engaged in cutting and carrying 
 away timber at different times ; but Avhether they were 
 jointly concerned or not was a matter of inference. They 
 used one common road, made expressly for the purpose of 
 gettirfg timber from the lot, and also had a common shed or 
 temporary house to which all their logs were drawn, for the 
 purpose of being loaded on their sleighs, and where their 
 shingles were made, and where they occasionally slept. The 
 circuit judge instructed the jury that to entitle the plaintiff 
 to a verdict against all the defendants as joint trespassers, it 
 must appear that they acted in concert in committing the 
 trespass complained of; that if some aided and assisted the 
 others in the trespass, all were equally guilty; or if some 
 employed the others to commit the trespass, or assented to 
 the trespass committed by the others, having an interest 
 therein, they were all jointly guilty. And in commenting 
 npon the evidence to the jury, he again observed that they 
 must be convinced from the evidence that all the defendants 
 were acting in concert in the trespass in question, or they 
 could not all be found guilty ; but that it would not be 
 material if they had unequal interests in the avails of the 
 trespass, for that those who confederated to do an unlawful 
 act were deemed guilty of the whole, although their share in 
 
 ' Vosburgh v. Moak, 1 Cusb. 453. , ' 10 Wend. 654. 
 
 Vol. I.— 5
 
 60 TRESPASS AS A REMEDY. § 62. 
 
 tlie profit might be small. That if any of the defendants 
 were not guilty at all, or if any of them, though guilty, were 
 acting separately and for themselves alone, without any con- 
 cert with the others, they ought to be acquitted, and those 
 only found guilty who were acting jointly. The Supreme 
 Coui-t held that the foregoing was a correct exposition of the 
 law.* AVhere a contractor, acting under instructions from 
 the owner of a lot, encroached on the wall of the adjoining 
 proprietor, by erecting a building six inches wider than the 
 lot, it was held that the owner was a tjotrespasser with the 
 contractor.^ A. authorized B., a brokerj to distrain for rent 
 due to him from C. B. having entered for the purpose of 
 executing the warrant, took away, among other things, cer- 
 tain books and papers (which were assumed not to be distrain- 
 able), and omitted to insert them in the inventory. It was 
 held that A. was jointly liable with B.^ Where A. and B. 
 were riding in a wagon on a turnpike road, and B. jumped 
 out, and having shot a hare in an adjoining field, brought it 
 to A., who remained in tlie wagon, the latter was held 
 guilty of the trespass.^ f 
 
 ' Williamson v. Fischer, 50 Mo. 198. 
 
 ' Gaimtlett v. King, 3 J. Scott. N. S. 59. 
 
 = Stacey v. Wbitelnirst, 18 C. B. N. S. 344. 
 
 * Where several jointly hire a carriage, horses, and driver, with the under- 
 standing that the horses shall be in the exclusive charge of the driver, and one 
 of the hirers causes an injury to the horses and carriage, each of the hirers is 
 liable for the damage. O'Brien v. Bround, 2 Speers, 495. And if the owner of 
 a carriage having loaned it to two persons, rides with them, the three will be 
 liable for injury done to another carriage by reckless driving. Bishop v. Ely, 9 
 Johns. 294, was an action against Ely and two others for violently driving 
 against the horse of the plaintiff on the highway, whereby the plaintiff's horse 
 was killed. It appeared that Ely lent the other two his wagon, and that having 
 put their own horses to it, they invited Ely to ride with them, which he was 
 doing when the accident occurred. It did not appear that Ely disapproved of 
 the violent manner in which the team was driven, or expressed any regret at the 
 occurrence, either at the time of it or afterwards. Held, that the evidence was 
 sufficient to charge all the three defendants with a joint trespass. 
 
 t "Lord Coke in 4 Inst. 317, states as a difference between the forest law and 
 the common law, that by the former, whosoever receives within the forest any male- 
 factor in hunting or killing the king's deer, knowing him to be such malefactor, 
 or any flesh of the king's venison, knowing it to be the king's, is a principal tres- 
 passer. Whereas, by the common law, he that receiveth a trespasser, and agreeth 
 to a trespass after it be done, is no trespasser, unless the trespass was done to his 
 use, or for his benefit ; and then his agreement subsequent amounted to a com- 
 mandment, for in that case, omnis 7'atihabitio retrotrahitur et mandato equiparatur.
 
 § 63. ACTION IN THE CASE OF JOINT WRONG-DOERS. 67 
 
 § 63. It is not accurate to say, that all those present at 
 the commission of a trespass are liable as principals who 
 make no opposition or manifest no disapprobation of the 
 wrongful invasion of another's person or property. Tlie 
 true rule on that point is this : Any person who is present 
 at the commission of a trespass, encouraging or inciting the 
 same, by words, gestures, looks, or signs, or who in any way, 
 or by any means, countenances or approves the same, is in 
 law deemed to be an aider and abettor, and liable as prin- 
 cipal ; and proof that a person is present at the commission 
 of a trespass, without disapproving or opposing it, is evi- 
 dence from which, in connection with other circumstances, 
 it is competent for the jury to infer that he assented there- 
 to, lent to it his countenance and approval, and was thereby 
 aiding and abetting it.^ But if he is only a spectator, inno- 
 cent of any unlawful intent, and does no act to countenance 
 or approve those who are actors, he is not to be held lia1)le 
 on the ground that he happened to be a looker on, and did 
 not use active endeavors to prevent the commission of the 
 unlawful acts.^ * If A. give B. leave to go into a field in 
 
 By the law of the forest, such a receiver is a principal trespasser, though the 
 trespass was not done to his use " (quoted by Parke, J., in Wilson v. Barker, 4 
 Barn. & Adolph. 614). 
 
 Where several are engaged in a lawful act, and one of them commits a tres- 
 pass in aid of their common purpose, the others not directing or countenancing 
 him therein, they are not liable therefor (Richardson v. Emerson, 3 Wis. 319). 
 
 Where the owner of land engages another to make an unlawful encroachment 
 on the street in front of sucii land, the parties are jointly liable (Clark v. Fry, 
 8 Ohio, N. S. 358). 
 
 A person cannot maintain trespass against his cotrespasser (Doolittle v. Lins- 
 ley, 2 Aik. 155; Tubbs v. Lynch, 4 Harring, 521). Neither can contribution be 
 claimed as between joint wrong-doers (Meriywether v. NLsan, 8 Term R. 186; 
 Farebrother v. Ansley, 1 Camp. 343; but see Bell v. Walsh, 7 Cal. 84, contra). 
 
 Where two persons are sued, and one of them, without the knowledge of the 
 other, confesses judgment as well for his codefendant as for himself, and the 
 property of the codefendant is taken and sold under an execution issued upon 
 such judgment, and an action of trespass is brought by him therefor against the 
 first named, the judgment is a justification without proof of authority to confess 
 it (Ingails V. Sprague, 10 Wend. 672). 
 
 ' McManus v. Lee, 43 Mo. 206. 
 
 = Hale's, P. C. 459; Roscoe's Cr. Ev. 2d ed. 201; Brown v. Perkins, 1 
 Allen, 89. 
 
 * Brown v. Perkins, supra., was an action for breaking and entering the 
 plainti9''s grocery and destroying various articles. At the trial in the Superior 
 Court, the evidence tended to show that by a concerted action or cous2)iracy,
 
 C8 TKESPASS AS A REMEDY. §§ 64, 65. 
 
 wliicli A. has no right, and B. goes there, this will not make 
 A. liable as a cotrespasser with B. But if A. order and 
 authorize B. to go into the field, and he does so, A. is a joint 
 trespasser with B. ; — the latter constituting an authority^ 
 the former leave and license only.^ 
 
 § 64. If two men having separate servants, separately 
 send them to do one and the same thing, and they in doing 
 it occasion an injury to any one for which their masters would 
 be responsible, they will be jointly liable by reason of their 
 sending their servants to act jointly. But they would not 
 be liable, either jointly or severally, for trespasses done by 
 their servants when not in their masters' business. Nor 
 would they be jointly liable if the servants had been sent 
 each to do his master's separate business.^ 
 
 12. Settlement of claim for damages. 
 
 § 65. The following are established propositions in rela- 
 tion to the settlement of a claim for damages: 1st. K A. and 
 
 many persons assembled wilh the design to commit unlawful acts by trespassing 
 on the premises and destroying the property of others whom they supposed to be 
 engaged in an unlawful and obnoxious traffic; and tliat in pursuance of this 
 common design, they broke and entered the shop of the plaintiff, and there 
 injured and destroyed various articles of personal property. It also appeared 
 that both of the defendants were present during the perp3tration of these 
 unlawful apts on the premises of the plaintiff; and tiiere was evidence which 
 tended to prove that both-of them, if tiiey did not actively participate in the 
 unlawful acts, were nevertheless there in pursuance of the common design, and 
 "were sympathizing with and giving countenance to those who were engaged in 
 the work of destroying the plaintiff's property. Upon this point however the 
 evidence was contradictory; the defendants contending that they were there 
 as spectators only, innocent of any combination or conspiracy, and in no way 
 participating in, or encouraging the unlawful acts of others. The effect of the 
 instruction given to the jury, was to lead them to believe that the defendants 
 could not be held liable as principals for aiding and assisting in the unlawful 
 acts by countenancing and approving the measures which were taken, or by 
 making no 'opposition, or manifesting no disapprobation of them, unless they 
 stood in such relation as would naturally enable them to exercise some authority, 
 control, or influence, over the actors; as where the actors are wives or children, 
 especially daughters, and the persons present, are husbands or fathers of such 
 actors. The Supreme Court, remarked, that "this was clearly erroneous, not 
 only because it annexed a limitation or qualification to the rule by which aiders 
 and abettors are held to be principals, which does not exist, but also, because 
 it omitted to meet that part of the evidence which tended to show that both 
 the defendants were present, giving aid and assistance to the actors in the unlaw- 
 ful enterprise, towards whom they stood in no such relation as was contemplated 
 in the instructions." 
 
 ' Robinson v. Vaughton, 8 Car. & P. 252. "" Adams v. Hall, 2 Vt. 9.
 
 § G5. SETTLEMENT OF CLAIM FOR DAMAGES. 09 
 
 B. trespass upon C, and either ^satisfies the damage before a 
 suit is commenced, the cause of action is extinguished ; and 
 if a suit be afterward brought against either, that satisfaction 
 may be pleaded in bar ; for no right of action exists at the 
 time the action is commenced. If a release be given, it may 
 be pleaded as a release by him to whom it is given, and as a 
 satisfaction by the other. ^ 2d. If an action be brought 
 against one before satisfaction, and he accord and satisfy the 
 damao-e, that extinsfuishes the cause of action also, and if a 
 suit be afterward brought against the other, the satisfaction 
 may be pleaded in bar. ^ 3d. If an action be brought against 
 all, and one pay damages and costs, and the action be dropped, 
 no action can afterward be brought against the others.^ 4th. 
 If an action be brought against all, and pending the action 
 one accord for himself only, and pay the damages and costs, 
 it is a discharge of the action as to all.* In Gilpatrick v. 
 Hunter,^ the plaintiff commenced an action of trespass against 
 the defendants and one Leonard for a joint trespass committed 
 by them upon his person and property. He afterward re- 
 ceived of Leonard five dollars " in full of said Leonard's tres- 
 pass Avhere he and Wilson P. Hunter w^ere in company, to- 
 gether with others ; " and it was held that this operated to 
 discharge the other joint trespassers. The court remarked 
 that the difficulty in maintaining the suit against the others 
 was, that the law considered that the one who had paid for 
 the injury occasioned by him and had been discharged, com- 
 mitted the whole trespass, and occasioned the whole injury, 
 and that he had therefore satisfied the plaintiff for the whole. 
 In Ayer v. Ashmead,® wbich was an action of trespass quare 
 clausum f regit, the defense was, that one Grumley, together 
 with the defendant, committed the trespass, and that Grum- 
 ley paid to the plaintiff the damages and costs in full, which 
 were accepted by the plaintiff as a satisfaction for the tres- 
 
 ' Brown v. Marsh, 7 Vt. 327. " Cocke v. Jeunor, Hobart, G6. 
 
 ' 2 Greenlf. Ev. § 30, note; 1 Saund. PI. & Ev. 29. 
 
 * Ellis V. Bitzer, 2 Ham. 89; Frye v. Ilinkley, 18 Maine, 320. 
 
 ' 24 Maine, 18. ' 31 Conn. 447.
 
 70 TRESPASS AS A REMEDY. § C5. 
 
 pass. The plaintiff resisted this position on the ground that 
 he instituted two actions of trespass, one against the present 
 defendant and one against Grumley, and he only intended 
 to settle the Grumley suit. A receipt " in full for damages 
 and costs in a case of trespass by said Grumley on my land," 
 executed by the plaintiff to Grumley after both suits had 
 been commenced but before the return day for either, was 
 produced. The settlement with Grumley was not intended 
 to include the present action, nor w^as the sum paid under- 
 stood to be paid on account of the damages claimed of the 
 defendant, or of the costs of the suit, or any part thereof; and 
 the writing was not given or received for tbe purpose of dis- 
 charging, or in any way affecting, the present action, or the 
 plaintiff's right of recovery therein, but for the sole purpose 
 of discharging Grumley alane. In tlie court below, the 
 plaintiff objected to the admission of tlie receipt in evidence, 
 because it did not purport to release the defendant or relate 
 to the present action. It was, however, admitted. The 
 judge charged the jury that although they should find a joint 
 trespass, and the payment by Grumley and the receipt given 
 therefor, and the acceptance thereof in satisfaction of the 
 damages claimed of Grumley, and the costs of the suit against 
 him, and tbat the receipt wslb given upon the settlement of 
 that suit for the purpose of discharging Grumley from said 
 damages and costs claimed in the suit against him ; yet, if 
 the present action was then pending, and costs bad accrued 
 tberein and w^ere unpaid, and the present action was not in- 
 cluded nor intended to be included in sucb settlement, and 
 nothing had been paid or received on account of sucb costs, 
 tben their verdict should be for the plaintiff for nominal 
 damages and his costs. A verdict having been found for the 
 2:)laintiff, in accordance wdth the foregoing instruction, the 
 Supreme Court granted a new trial for error in the charge. * 
 
 * In Ayer v. Ashmead, supra, Hinman, C. J., in delivering the opinion, re- 
 marked that, "if it were said that it was inequitable to allow a satisfaction to 
 cover the costs in both suits wlien such was not the intention, the answer was, 
 that the plaintiff" was not obliged to acc(!pt of satisfaction unless he secured his 
 costs." Butler, J., delivered a very elaborate dissenting opinion, in the course
 
 §66. 
 
 SETTLEMENT OF CLAIM FOR DAMAGES. 71 
 
 § 6Q. A settlement with some of several joint defendants 
 will be deemed, in the absence of proof to the contrary, a 
 
 of ■which, he said: "I concede fully, that such accord by a defendant in one 
 action satisfies and extinguishes the cause of action in both. Here one has begn 
 discontinued pursuant to the accord ; the other is pending, and what shall the 
 court do with it? It was justifiably commenced for a good cause of action, and 
 so pursued up to the time of the satisfaction of the trespass, and the extinguish- 
 ment of that cause. The pUuntifl^ has incurred cost in the lawful, and presump- 
 tively in the necessary pursuit of his legal rights to obtain satisfaction for an in- 
 jury; for as to the necessity of instituting and prosecuting this action, he was 
 and must be held to have been the judge. Into that question we cannot go. 
 Having then lawfully and necessarily incurred those costs, is he to lose them? 
 Nay, more, is he to be punished for such necessary exercise of his lawful rights 
 by an appeal to a higher court, the pleading of the general issue, to make the 
 trial more expensive, with a certain judgment against him, either on that issue, 
 or on a plea of satisfaction, and a consequent certain heavy bill of costs? Can a 
 court permit that, without divesting itself of that 'sense of equity,' which must 
 necessarily be its guide in the administration of the law — that ' soul and spirit,' 
 by which, says Blackstone, ' positive law is construed, and rational law is 
 made? ' * * * jn thjg case, it was the duty of the defendant to pay and ten- 
 der the costs in this action up to the time when the cause of action was extin- 
 guished, and then, if the plaintifi" did not withdraw the action, to plead the sat- 
 isfaction, and aver the tender. But until those costs were paid, it was in the 
 I^ower of the court to refuse or overrule his plea of satisfaction, and render judg- 
 ment for nominal damages and costs. * * * n has been urged that the 
 plaintifE voluntarily accepted satisfaction for the trespass, and that he might 
 then have insisted on the costs of this action. But that cannot help the defend- 
 ant. The plaintifi' had a perfect right to pursue both actions, and to settle 
 either. He could not enforce the collection of the costs of this suit in his action 
 against Crumley, and therefore he waived no right, and lost none. It was op- 
 tional with him, to take his damage before judgment, or after it had been ascer- 
 tained ou a default and hearing in damages, or by verdict ; and voluntarily, or 
 by force of an execution. It was entirely immaterial, when or how he got it. 
 All that the defendant had any interest in, was the consequent satisfaction for 
 the trespass; and all the interest the plaintiff afterward had in this suit, however 
 that satisfaction was obtained, was his costs ; and that interest he had a perfect 
 right to retain and enforce against the defendant by insisting that he pay the 
 costs before he pleaded the satisfaction, or sufi"er a verdict for nominal damages." 
 It has been claimed Ihat there is a substantial analogy between a joint tres- 
 pass, and a joint and several promise, in respect to the rights and liabilities of 
 the parties to the injury by the trespass, or the promise in the contract. The 
 analogy is not perfect. A wrong committed by several, is, j^er se, several in its 
 character, and only joint because each is by law made liable for the acts of each 
 and all done in furtherance of the common design. The tort, therefore, although 
 several in its nature, is "amalgamated." But a promise is joint and several in 
 itself and in terms, .each promising for himself, and jointly with the others. 
 Hence a promisee in a contract, may sue one or all; but a party trespassed upon, 
 may sue one, all, or any number. So, a joint and several debt may be paid, or 
 the contract fullilled by one or for all, with right of reimbursement, or contribu- 
 tion, as the case may be. But a trespass can only be satisfied, or the cause of 
 action directly released and extinguished without right of contribution. And 
 in case of several judgments in trespass, the plaintiff may elect de meliorilus 
 damnis ; for the damages may be greater in one than the other. But no such 
 election in the nature of things can be had in case of several judgments for the 
 same debt or other certain liability. Still, it is true that in either case, the right 
 to bring separate actions against each, and to pursue them all to final judgment 
 and execution, or until a satisfaction is obtained for the debt or injury from
 
 72 TRESPASS AS A REMEDY. § C7. 
 
 settlement ^vith all. Accordingly, where in an action for au 
 assault and battery committed by the defendants and James 
 Bowen and Merrill Bowen jointly upon the j^laintiff, it ap- 
 peared that after the trespass was committed, and before the 
 action was brought, the plaintiff constituted one White, his 
 agent, with full power to manage and control any right of 
 action the plaintiff might have growing out of the assault, 
 and told White he might have all he could make out of it ; 
 and that afterward White settled with the Boweus for the 
 plaintiff's claim upon them for damages resulting from said 
 trespass, receiving from each the sum of $100, and giving 
 each a writing signed by him to indemnify and save them 
 harmless from all their liability to the plaintiff for damages 
 that the plaintiff' sustained by reason of the said trespass, — 
 it was held that in the absence of proof that the foi-egoing 
 was not a settlement in full of all damages, it would operate 
 as a discharge of all the parties engaged in the assault.^ 
 
 § 67. Where, howev^er, there is not a settlement of the 
 cause of action, but merely an agreement that upon the pay- 
 ment by one of the defendants of a specified sum the 
 plaintiff will not prosecute him any further, it will only re- 
 duce the damages ])ro tanto, and not be a defense to a 
 recovery against the other defendants.^ In Snow v. Chand- 
 ler,^ which was an action for assault and battery, the defense 
 was that the trespass was committed by the defendant and 
 one Holt, and that the ])laintiff had settled with Holt for the 
 sum of twenty dollars. It appeared that the arrangement 
 between the plaintiff' and Holt was, that there should be a 
 
 some one of them, is the same in one case as the other. And the debt in one 
 case, or tlie damage iu the other, are so far "a unit and indivisible," that every 
 judgment must be rendered for the whole. Nevertheless, the right of action 
 against each is perfect in itself. A release of one copromisor or cotrespasser, 
 or a discliarge of one action when two are pending, is not /jer se a release or dis- 
 charge of the right of action against the other, who is not a party to the release 
 or discharge, and cannot be pleaded as such; l)ut it inures to the other by reason 
 of his actual jmvity in the promise, or legal privity in the injury, as a satisfac- 
 tion, and so au extinguishment of the right to the debt or damages from that 
 time. 
 
 ' Eastman v. Grant, 34 Vt. 387. 
 
 "" Chamberlin v. Murphy, 41 Vt. 110. ^ 10 N. Hamp. 93.
 
 § 68. SETTLEMENT OF CLAIM FOR DAMAGES. 73 
 
 settlement so far as that the latter should pay the twenty 
 dollars, and in case the plaintiff should choose at any future 
 time to prosecute Holt, he should be at liberty to do so 
 on refunding the sum so paid, the plaintiff at the same 
 time declaring that he would not settle with the other de- 
 fendant for five hundred dollars. It was held that the 
 plaintiff was entitled to recover."^" 
 
 § 68. Although the princi23le is well settled that a release 
 
 * In Chamberlin v. Murphy, supra, the court said : '' The defendants and their 
 cotrespassers had incurred a liability in its nature joint and several. The 
 plaintiffs had in fact but one cause of action, but they were at liberty to pursue 
 it against as few, or as many of the cotrespassers as they should choose. They 
 might sue them separately or together, but very obviously they were not entitled 
 to more than one full satisfaction. Tlie first piece of evidence which was ex- 
 cluded agaiust objection was the receipt for $65, given by the plaintiff's attorney 
 to the estate of Simonds, one of the cotrespassers. This receipt, by its terms, 
 shows that the plaintiff's damages have been satisfied to the extent of $65, and 
 the defendants had the right to insist upon its application to reduce tlie plaintiff 's 
 recovery pro tanto. To hold otherwise would be to permit the plaintiffs to re- 
 cover for this portion of the damages twice. If they had received this sum in 
 full satisfaction for their injury, it would have reduced the plaintiff 's recovery 
 to a nominal sum; but they, having received it as they did, not in settlement of 
 the cause of action, but merely agreeing to prosecute this trespasser no further, 
 it will only reduce the recovery pro tunto. It was not pleaded in bar of tlie ac- 
 tion; and,' if it had been, would, under all the authorities, have been no defense 
 to a recovery" (citing Spencer v. Williams, 2 Vt. 211; Eastman v. Grant, 34 
 Vt. 389). 
 
 In Snow V. Chandler, supm, the court said: "There can be no reason why 
 damages for a wrong done should be more easily settled and canceled than a 
 claim for a debt due, or that the law should favor the discharge of trespassers 
 more than the release of debtors. The principle as to what constitutes the re- 
 lease of a contract where there are joint debtors applies to a covenant not to sue 
 one of two joint trespassers, for the reason that it cannot be inferred from such a 
 covenant that it was the intention to discharge the claim of damage. The sub- 
 stance of the arrangement betvv-ixt the plaintiff and Holt seems to have been this: 
 That the plaintiff w"as willing to receive a small portion of the damage from Holt, 
 either for the reason that he conceived him to be less to blame than the defend- 
 ant, or that he was less able to pay his proportion of the damage; and on con- 
 dition of receiving this sum the plaintiff engaged to pursue the defendant for the 
 remainder of his claim. It is clear that the sum paid was not received in satis- 
 faction of the damage, but only in part satisfaction; and the fact that it was 
 coupled with the engagement not to sue Holt does not alter the case. It is still 
 but a partial satisfaction of the damage, and the plaintiff may sue or omit to 
 sue whom he pleases, by contract or otherwise. The other trespasser has no 
 equitable or legal claim to ])revent such an arrangement. He remains liable 
 for the whole damage until satisfaction is made. If the individual receiving 
 the injury sees fit to visit the penalty upon any one guilty individual ratlier 
 than another, such individual has no right to complain. It is part of the 
 necessary liability that he incurs in committing the trespass, and should serve 
 to deter him from such wrongful acts. At the same time, any partial pay- 
 ment by a cotrcspasser avails so far for his benefit. To this extent the de- 
 fendant can avail liimself of the plaintiff's arrangement with his cotrespasser, 
 but there was nothing in that contract which constitutes a bar to this suit."
 
 74 TRESPASS AS A REMEDY. § 69. 
 
 of one of two or more joint trespassers is a release of all, 
 yet to have that effect it must be a technical release, that is, 
 by an instrument under seal. The reason why a release of 
 one discharges all is, that it legally imports full payment, 
 and, being under seal, its consideration cannot be inquired 
 into, so that it is conclusive, even though it was giv^en 
 without consideration in fact. The rule is the same whether 
 the claim is based upon a tort or a contract.-' * 
 
 § 69. If an action be brought against one of several, and 
 judgment had, or execution taken out and levied on the 
 body, and that is discharged by taking the poor debtor's 
 oath, it will not be a satisfaction of the trespass or affect 
 the right to bring and pursue to judgment an action against 
 the other.^ But where separate actions are brought against 
 joint trespassers, a recovery had in both actions, and an exe- 
 
 ' Brown v. Marsh, 7 Vt. 320 ; Eastman v. Grant, 34 Bx 387 ; Brown v. Cam- 
 bridge, 3 Allen, 474; Stone v. Dickinson, o lb. 29; Bloss v. Plymale, 3 AV. Ya. 
 393, contra. 
 
 ^ Livingston v. Bishop, 1 Johns. 290; Sheldon v. Kibbe, 3 Conn. 214, over- 
 ruling Brown v. Wooton, Cro. Jac. 73, and Yelv. 67. 
 
 * " If divers commit a trespass, though this be joint and several at the 
 election of him to whom the wrong is done, yet if he releases to one of them 
 all are discharged, because his own deed shall be taken most strongly against 
 himself. Also such release is a satisfaction in law, which is equal to a satis- 
 faction in fact. But he who would take advantage of such a release must 
 have the same to produce " (5 Bac. Abr. 702). 
 
 "If two men doe a trespasse to another, who releases to them all actions 
 personalis, and notwithstanding such an action of trespasse against the other, 
 the defendant may wel show that the trespasse was done by him and by 
 another, his felloAv, and that the plaintife, by his deed (which he sheweth 
 forth), released to his fellow, all actions personalis, and demanded the judg- 
 ment, »fcc., and yet sade deed belongeth to his fellow and not to him. But 
 because hee may have advantage by the deed, if hee will show the deed to 
 the court, hee may wel plead this " (Coke, Lit. 232). 
 
 Questions in relation to the effect of the discharge of one upon the liability 
 of the others, have generally arisen when the discbarge has been given upon 
 the payment of pait of a demand, or some consideration less than a full pay- 
 ment of the claim against the one discharged. Such was the case of Spencer 
 V. Williams, 2 Vt. 209, and Dean v. Newhall, 8 Term, 168. The first case 
 was decided on the ground that, as the discharge was not under seal, it did 
 not operate as a release, and that upon its face it was not a full discharge, 
 but only an agreement not to sue. In the other case, although the instru- 
 ment was under seal, it was held not to be a release, but only a covenant 
 not to sue, which all the authorities agree does not discharge the other joint 
 debtors. 
 
 The release of one of several joint trespassers who is not in fact liable, 
 does not take away the right of action against those who are liable (Turner 
 V. Hitchcock, 20 Iowa, oio/.
 
 § 70. PAETY CONFINED TO REMEDY GIVEN BY STATUTE. 75 
 
 cution issued upon one of the judgments, and the defendant 
 in the execution committed to jail and afterward discharged 
 therefrom by direction of the plaintiff, the remedy upon both 
 judgments is gone.^ '"'* 
 
 13. When party confined to remedy given hy statute. 
 
 § 70. When a statute confers some new right, and pre- 
 scribes a remedy for a violation of that right, then the rem- 
 edy thus prescribed, and no other, is to be pursued. But 
 where a remedy existed at common la\^, and a statute creates 
 a new remedy in the affirmative, without a negative express 
 or necessarily implied, a party may still seek his remedy at 
 common law.^ Coffin v. Field ^ was an action of trespass for 
 taking;' certain animals in which the defendant, as field driver 
 of the town, sought to justify the taking on the ground that 
 the animals were going at large contrary to law. A chief 
 ground of exception to the ruling of the court below was, 
 that the only remedy for a party whose beasts had been 
 iml awfully distrained and impounded by a field driver was- 
 by an action of replevin. The objection proceeded upon the 
 idea, that as the remedy by replevin was given in such cases 
 
 ' Kasson v. The People, 44 Barb. 347. 
 
 ' Bac. Abr. Statute, K; 1 Chitty's Pi. 6th Am. ed. 127, 128, 164; Golden v. 
 Eldred, 15 Johns. 220 ; Wiley v. Yale, 1 Mete. 553 ; Elder v. Bemis, 2 lb. 599. 
 
 ' 7 Gush. 3o5. 
 
 * In Kasson v. The People, sup'a, the court said: " If the judgment had been 
 in one action against the defendants in both actions for the same trespass, 
 and one only had been charged in execution, and afterward discharged there- 
 from, by order of the plaintiff therein, or his assignee, the effect would have been 
 tlie same. The judgment would in that case have been discharged, and no 
 remedy could afterward have been had upon it. That here were two actions 
 and a recovery in each for the same trespass, does not vary the principle. The 
 discharge by the plaintiff of the defendant from imprisonment on an execu- 
 tion issued against him, discharges the judgment against the defendant in the 
 other judgment. The plaintiff in the judgments was entitled to but one satis- 
 faction for the injury he had sustained by the trespass committed by the de- 
 fendants in the two judgments, and that he has had by the imprisonment of 
 Gilbert and discharging him therefrom. It is quite true that originally he 
 had the right to imprison the relator as well as Gilbert, to satisfy his dam- 
 ages, but liaving cliosen to charge the former in execution, and to discharge 
 him from imprisonment, his remedy on both judgments was gone. It was 
 equivalent, in the eye of the law, to payment by Gilbert of the judgment 
 against him" (citing Chapman v. Ilatt, 11 Wend. 41; Glark v. Glement, 6 Temi 
 R. 525; Livingston v. Bishop, 1 Johns. 289; Bingham on Judg. & Ex. 206).
 
 76 TRESPASS AS A REMEDY. § 71. 
 
 by statute, it operated to exclude the remedy at common 
 law. But it was held that tliis was not true.* 
 
 14, Declaration. 
 
 § 71. The principal act complained of should be clearly 
 alleged in the declaration, separately from mere matters of 
 aggravation,^ If the description be too general, a special 
 finding w^ill not remedy the defect,^ " It seems indeed a 
 universal rule," says Mr, Starkie,^ " that a plaintiff or prose- 
 cutor shall in no case be allowed to transscress those limits 
 which in point of description, limitation, and extent, he has 
 prescribed for himself. He selects his own terms in order 
 to express the nature and extent of his charge or claim. He 
 cannot, therefore, justly complain that he is limited by them." 
 Where there is no positive averment of a trespass, but the 
 trespass is laid by way of recital only, under a quod cum, it 
 will be held bad on demurrer.^ f 
 
 ' Clark V. Langworthy, 13 Wis. 441. 
 
 ^ Frean v, Cruikshanks, 3 M'Cord, 84. ' Tr. on Ev. 1531. 
 
 ^ Holbrook v. Pratt, 1 Mass. 96; Coffin v. Coffin, 2 lb. 358; Sturdevant v. 
 Gains, 5 Ala. 435. 
 
 * In Elder v. Bemis, supra, the charge against the defendant was, that he 
 had, within the limits of the highway and without the approbation of the select- 
 men of the town first being had in writing, caused two watei'-courses, occasioned 
 by the wash of the highway, to be so conveyed by the side of the highway as to 
 incommode the plaintiff in the use of his barn, and thereby obstructing him also 
 in the prosecution of his business. It was held that the plaintiff's only remedy 
 was that given by the statute. By section five, he might complain to the select- 
 men, who were authorized to authorize the water-courses; and by section six, he 
 was entitled to compensation for any damages he had sustained in his property, 
 to be determined by the selectmen ; and if lie should be aggrieved by such deter- 
 mination of the selectmen, he might have his damages ascertained by a jury. 
 That but for this statute, the defendant would have had a right, by virtue of his 
 office of surveyor, to make any repairs and alterations in the highway which the 
 public convenience required, without the approbation of the selectmen; and if 
 the plaintiff' were incommoded or obstructed in his business thereby, the defend- 
 ant would not be responsible for damages. And that for the violation of the 
 prohibition in the statute, the plaintiff" was only entitled to the statute remedy 
 (citing Callender v. Marsh, 1 Pick. 418). 
 
 t One trespass well alleged is sufficient on demurrer (Chamberlain v. Green- 
 field, 2 W. Blk. 810; 3 Wils. 292). 
 
 Even where distinct causes of action are embraced in the same count, pro- 
 vided they be such that the same species of remedy is appropriate to them all, 
 although it may constitute duplicity in pleading, and in that respect be objec- 
 tionable, yet, if the defendant does not take advantage of the objection by 
 special demurrer, he waives the objection, and must be prepared to meet all the 
 charges ; and if the plaintiff" substantiates any of them, he will be entitled to re-
 
 §§ 72, 73. DECLAEATION. 77 
 
 § 72, It is a sufficient description of the place of the al- 
 leged trespass to name and prove the county/ If the tres- 
 pass be laid in a town which previous to bringing the action 
 is subdivided, it may be alleged to have been done in the 
 original township without regard to its subsequent division.^ 
 
 § 73. The declaration need not state the actual day of 
 the injury, if it be proved to have been committed before the 
 commencement of the action.^ Where the acts are alleged 
 to have been committed after the suing out of the writ, the 
 declaration may be amended by fixing them prior thereto.* 
 Formerly, every declaration in trespass seems to have been 
 confined to a single wrongful act. When the injury was of 
 a kind that could be continued without intermission from 
 time to time, the plaintiff was permitted to declare with a 
 continuando^ and the whole was considered as one trespass. 
 
 cover. In order to apply these rules, ami to distinguish between what con- 
 stitutes the gist of the action of trespass, and what is mere matter of aggra- 
 vation, it is only necessary to ascertain what allegations in the declaration de- 
 scribe a substantive ground of recovery in that kind of action. For although 
 the declaration may contain averments descriptive of a cause of action of an- 
 other kind, which may properly be introduced and proved to enhance the dam- 
 ages, as showing the aggravated character of the transaction, yet they will not 
 be deemed to be any part of the gist of the suit, and do not form a distinct sub- 
 stantive ground of damage (Holly v. Brown, 14 Conn. 255). 
 
 Comyn in his Digest, Action G., states .the law to be, that an action on a 
 statute cannot be joined with an action at common law. He cites Jenkins, 115, 
 as his authority; and Comyn is himself an authority, and among the highest, 
 especially on a question of [ileading. The rule in Comyn may not be of universal 
 application. But where the forfeiture is given for a malicious and criminal act, 
 there appear to be very strong reasons in the nature of the case for holding that 
 the action on the statute cannot be joined with a claim of compensation for a 
 mere civil injury. The cases would seem to show that the struggle of the courts 
 has been hard, and by no means entirely successful, to fix on some general and 
 uniform rule for the decision of these questions (Morrison v. Bedell, 2Fost. 234). 
 
 In Maine, the design of ch. 115, § la, of the Rev. Sts., in providing that 
 '* in all actions of trespass and trespass on the case, the declaration shall be 
 deemed equally good and valid, to all intents and purposes, whether the same 
 shall be in form a declaration in trespass, or trespass on the case," was to abolish 
 the distinction between two classes of cases in the form only of declaring in the 
 writ; so that proof which should make out a case of one class, should not fail of 
 effect on account of the writ being appropriate for the other class. But in cases 
 where the distinction is really of substance, the provision is inapplicable (Ten- 
 ney, J., in Sawyer v. Goodwin, 34 Maine, 419). 
 
 ' Jean v. Sandiford, 39 Ala. 317; Shipier v. Iscnhower, 27 Ind. 36. 
 
 "^ Renaudet v. Crocken, 1 Caines, 107. 
 
 ' Caldwell v. Julien, 2 Rep. Con. Ct. 294 ; but see Hubbert v. Collier, 6 Ala. 
 2G9. 
 
 ■' Ilainmatt v. Russ, 16 Maine, 171.
 
 78 TRESPASS AS A REMEDY. § 74. 
 
 In more modern times, in order to save the trouble and ex- 
 pense of a distinct writ, or count, for every different act, the 
 plaintiff is permitted to declare for a trespass on divers days 
 and times between one day and another ; and in that case, 
 he may give evidence of any number of trespasses within the 
 time specified. Such a declaration is considered as if it con- 
 tained a distinct count for every different trespass. This is 
 for the benefit of the plaintiff. But he is not obliged to avail 
 himself of the privilege, and may still consider his declara- 
 tion as containing one count only, and as confined to a single 
 trespass. When it is considered in that light, the time be- 
 comes immaterial, and he may prove a trespass at any time 
 before the commencement of the action, and within the time 
 prescribed by the statute of limitations.^ * 
 
 § 74. Where sjiecial or peculiar damages are claimed, 
 such as are not the usual or natural consequences of the act 
 done, it is proper to set them forth specifically in the decla- 
 ration, by way of aggravation, that the defendant may have 
 due notice of the claim.^f A general allegation will not 
 
 '■ Pierce v. Pickens, 16 Mass. 470 ; ^(^6^^ §§ 96, 958. 
 
 ' Dickinson v. Boyle, 17 Pick. 78. 
 
 * It would be giving an undue advantage to the plaintiff if he could avail 
 himself of the declaration in both of the modes mentioned in the text, and 
 would frequently operate as a surprise on the defendant. He is, therefore, bound 
 to make his election before he begins to introduce the evidence. In Sedley v. 
 Sutherland, 3 Esp. 203, Lord Kenyon said that where an action is brought for a 
 joint trespass, and the plaintiff elects to go for a trespass at any particular time, 
 he must confine himself to that period ; and if all the defendants were not con- 
 cerned in the trespass committed at that time, the plaintiff cannot have recourse 
 to a trespass committed at a future time, when some of the defendants were con- 
 cerned who were not implicated in the first transaction; and he says the reason 
 is this, that some of the defendants might be thereby subjected to damages for 
 a trespass in which they had no part or concern. 
 
 It is too late to object to the declaration after a plea of not guilty (James v. 
 Tait, 8 Port. 476). But the party may, in error, insist upon the insufficiency of 
 the verdict and judgment (Sturdevant v. Murrell, 8 Port. 317). The doctrine 
 that where opportunity is given for objections, and none are made, but the party 
 whose business it is to object remains silent, all reasonable intendments will 
 be made by a court of error to uphold the judgment, has been frequently an- 
 nounced by the courts of New York (see Baldwin v. Calkins, 10 Wend. 167;, 
 Menderback v. Hopkins, 8 Johns. 436; Ford v. Monroe, 20 Wend. 210; Oakley 
 V. Van Horn, 21 Wend. 305; Holbrook v. Wight, 24 Wend. 169). 
 
 t Notice to the partv is an indispensable requisite, founded upon principles 
 of natural justice (4 Blk. Com. 280 ; Chase v. Hathaway, 14 Mass. 222 ; Colt v. 
 Eves, 12 Conn. 243).
 
 §§ 75, 76. DECLARATION. 79 
 
 enable the plaintiff to prove special damages ; that is, dam- 
 ages which the law does not imply from the facts alleged.^ 
 Accordingly, in an action l)y the husband for obstructing a 
 right of way leading to the wife's land " to the damage of 
 the plaintiff' in the sum of three hundred dollars," it was 
 held that loss or diminution of rent was not an element of 
 damages which the jury could legally take into considera- 
 tion.^ And where the j^laintiff alleged the loss of divers 
 lodgers, without naming them, it was held that he could not 
 be permitted to prove the loss of a particular lodger.^ 
 
 § Y5. At common law, in actions in form ex delicto^ if a 
 party who ought to be joined as plaintiff be omitted, the ob- 
 jection can only be taken by plea in abatement, or by way of 
 apportionment of the damages on the trial ; and the defend- 
 ant cannot, as in actions in form ex contractu^ give in evidence 
 the non-joinder as a ground of nonsuit, under the plea of the 
 general issue, or demur, or move in arrest of judgment, or 
 support a writ of error, although the objection appear upon 
 the face of the declaration or other pleading of the plaintiff.^ 
 
 § 76. When all of the parties plaintiff do not have an in- 
 terest in the cause of action, it is, in one sense, a misjoinder 
 of plaintiffs ; but, in a more important sense, it is a failure to 
 make a case entitling the plaintiffs to recover.^ Hence, in 
 such cases in New York, before the Code, parties thus caught 
 would have been nonsuited. Now, under the provisions of 
 the Code, judgment may be given for one plaintiff and against 
 the other, if the objection is taken upon the trial by motion 
 for a nonsuit or otherwise. If the objection appears upon 
 the face of the complaint, and is taken by demurrer, and 
 
 ' Adams v. Barry, 10 Gray, 361 ; Baldwin v. Western R. R. 4 lb. 333; Rising 
 V. Granger, 1 Mass. 47 ; Warner v. Bacon, 8 Gray, 397. 
 
 ^ Adams v. Barry, svpra. ' Westwood v. Cowne, 1 Stark. 173. 
 
 * 1 Chit. PI. 7G; AJjbe v. Clark, 31 Barb. 238; Jones v. Lowell, 35 Maine, 538; 
 Cabell V. Vaughan, 1 Saund. 291 ; True v. Congdon, 44 N. H. 48; Child v. Sands, 
 Salk. 31; Brown v. Hedges, Salk. 290; Addison v. Overend, 6 T. R. 766; Wil- 
 braham v. Snow, 2 Saund. 47; Thompson y. Ploskins, 11 Mass. 419; Bradish v. 
 Schenk, 8 Johns. 151 ; Wilson v. Gamble, 9 N. Hamp. 74. 
 
 ' See post, § 952.
 
 80 TRESPASS AS A REMEDY. § 76, 
 
 amendment maybe allowed upon terms ;^ when husband and 
 wife unite in bringing a joint action, and the facts stated do 
 not show a joint cause of action in them, a demurrer will lie, 
 upon the ground that the complaint does not state facts suffi- 
 cient to constitute a cause of action.^ "' 
 
 'Mann v. Marsh, 35 Barb. 68; N. Y. Code, §§ 274, 173; but see Abbe v. 
 Clark, 31 Barb. 238. 
 
 ^ Manu V. Marsh, supra. 
 
 * Where there is no statutory provision to the contrary, actions by the State, 
 or for the benefit of the State, are to be brought in the name of the State in cases 
 where, upon common law principles, the legal interest in the subject-matter is in 
 the State. State v. Bradish (34 Vt. 419), was an action of tres\>ass quare clausum 
 /regit, and for carrying away certain articles of personal property alleged to be- 
 long to the state of Vermont. Tlie property in question, consisting mainly of 
 tools for cutting stone for rebuilding the State House, was, when taken by the 
 defendant, in a temporary blacksmith shop on the locus in quo, and in the use of 
 men in the employment of the State. The defendant took the property as dep- 
 uty sheriff, by virtue of a writ of attachment against one Heustis. It appeared 
 that Heustis had originally taken the contract for building the State House, and 
 that he had provided himself with the necessary tools and implements, but that 
 he had afterward given up his contract and tools to the State. It was insisted 
 by the defendant's counsel that the action could not be maintained in the name 
 of the State. The Supreme Court, in atiirming the judgment of the County Court, 
 which was for the plaintiff, said : "The existence of the State and its capacity to 
 maintain suits being of a public character, the court will take judicial notice 
 whether, by law, it can maintain this suit in the name of the State. It is pro- 
 vided in the Constitution, as well as by statute, that criminal prosecutions shall 
 be in the name of the State; but the Constitution is silent as to the mode of 
 prosecuting civil suits in behalf of the State, or suits in which the State is the 
 real plaintiff or interested. Hence, in the absence of legal regulations to the 
 contrary, the common principle applicable to other parties must apply; that 
 is, the suit must be in the name of the person or party, whether natural, or cor- 
 porate and artificial, having the legal interest. There is no statute prohibiting 
 the State from bringing suits in its own name, and no statute providing that all 
 actions by the State shall be commenced and prosecuted in any other name. 
 There are numerous provisions in the statutes for bringing certain suits in the 
 name of particular officers of the State, such as the State treasurer, and seme other 
 officers. In relation to actions coming within such provisions, probably the stat- 
 ute must be followed; but beyond this, no prohibition against prosecuting suits 
 in the name of the State of Vermont can be implied. On the contrary, it is evi- 
 dent, from the statutes on this subject, that there are civil suits which may be 
 brought, aa this is, in the name of the State. Chap. 9, § 50, Comp. Stat. p. 84, 
 expressly provides that, in case of default of a State's attorney, the auditor of 
 accounts shall cause a suit to be brought against him, ' in tJie name of the State 
 of Vermont.'' In chapter 42, Comp. St. § 6, p. '^98, entitled 'Forfeiture of Grants,' 
 which includes grants of land by the State, it is provided that the proceedings 
 shall be by writ of scire facias, Hn the name of the State.'' In chap. 61, § 21, p. 
 380, entitled, 'The limitation of real and personal actions and rights of entry,' 
 it is provided tliat the limitations therein prescribed shall apply to the same ac- 
 tions when brought in the name of the State, or in the name of any officer, or 
 otherwise, for the benefit of the State, in the same manner as to actions brought 
 by citizens. There must be numerous instances where the State w'ould have occa- 
 sion to bring suits where no provision is made for bringing them in the name of 
 any officer of the State; and unless, in such cases, the State can maintain actions 
 in its own name, the legislation on this subject is very defective."
 
 §§ 77-79. PLEA. 81 
 
 15. Plea. 
 
 § 77. Every plea in bar must either contain a denial of 
 tlie plaintiff's allegations, or must confess and avoid the facts 
 stated in the declaration. The former constitutes the general 
 issue ; while matter in confession and avoidance is pleaded 
 specially. AVhen the matter thus specially pleaded amounts 
 to a mere denial of the allegations, which the plaintiff", under 
 a plea of not guilty, must necessarily prove to maintain his 
 action, it is bad.^ * 
 
 § 78. Defenses apparently inconsistent, are allowed to be 
 interposed by separate pleas. Not guilty, and a justification, 
 and accord and satisfaction, may be pleaded together ; or not 
 guilty, and son assault demesne j or a license, and justifica- 
 tion ; or not guilty, and liberum tenementum ; and so of sev- 
 eral other defenses,^ 
 
 § 79. There may be one plea to one part of the declaration, 
 and a different plea to another part ; but the pleas must show 
 with certainty what part of tlje declaration each plea is intended 
 to answer.^ If the declaration contain two counts for the same 
 offense, to both of which the defendant pleads the general issue, 
 and to one a special plea in bar, and the evidence supports 
 the latter, he will be entitled to a verdict on both issues.* 
 
 ' 1 Chit. PI. 9tli Am. ed. p. 527 ; Doman v. Long, 2 Barb. 214. 
 "" Walrath v. Barton, 11 Barb. 383. 
 
 ^ Orange v. Berry, 4 Fost. 105 ; Osborne v. Rogers, 1 Saund. 264 ; Cottingbam 
 V. The State, 7 Black, 405. 
 
 * Curl V. Lowell, 19 Pick. 25. 
 
 * When a plea confesses and avoids the material facts in the declaration, 
 there must not also be a traverse, because it shall not be in the power of the 
 party, Ijy adding a traverse, to prevent the other party from denying the facts 
 which avoid his title (Cystead v. Shed, 13 Mass. 520; s. c. 12 Mass. 505). In 
 Vermont, the statute (Genl. Sts. p. 200, § 44) allowing a tender to be pleaded in 
 actions for torts, the tender was not intended to be made tlie subject of a i)lea in 
 bar, to be tried by a jury, l)ut only a matter to be acted on by the court in the 
 taxation of costs, in the discretion of the court, under the limitations therein 
 prescril)ed. The jury are to try tlie case without refei'ence to the tender; and in 
 taxing costs, if it appears to the court that the defendant tendered a sum equal 
 to, or greater tlian, tlie amount of damages found by the jury, and costs up to 
 the time of the tender, the plaintiff recovers no costs accruing after the tender; 
 and, in that event, tlie court, in their discretion, may allow the defendant to re- 
 cover costs accruing after the tender (Adams v. Morgan, 39 Vt. 302, citing Smith 
 V. Wilbur, 35 Vt. 133). In an action of trespass, the defendant, by pleading the 
 general issue, waives all dilatory defenses (Hill v. Morey, 26 Vt. 178). 
 
 Vol. L— 6
 
 82 TRESPASS AS A REMEDY. §§ 80, 81. 
 
 § 80. As a bare intent not acted upon, mutable in its na- 
 ture, and whicli may never be carried into effect, cannot ren- 
 der a lawful act unlawful, such an intent is not issuable. 
 But where the party, at the time of the alleged offense, was 
 acting in pursuance of his illegal purpose, the intent is ma- 
 terial, and may be traversed. French v. Marstin^ was an 
 action for assault and battery, to which the defendant pleaded 
 that the plaintiff broke and entered the defendant's close, and 
 refusing to depart when requested, the defendant gently laid 
 his hands upon him and removed him. The plaintiff replied, 
 the grant of a right of way from the highway to a quarter- 
 acre lot described, »and that he was going across the defend- 
 ant's land in this way, and not out of it, to go to that quarter 
 acre. The defendant, in his rejoinder, admitted the right of 
 way claimed to the quarter acre, and that the plaintiff was 
 passing across his land in his way, and to the quarter acre ; 
 but he alleged that the plaintiff, at the time, &c., was passing 
 into, over, and across the said close of the defendant, and 
 through said one-fourth of an acre, to other lands of the 
 plaintiff, lying farther than and beyond the said one-fourth of 
 an acre, known, <fec. The objection of the plaintiff was, that 
 this was but an imperfect mode of stating that the plaintiff' 
 was intending to go to lands beyond the quarter acre, and 
 that such intention was not issuable. It was held that, al- 
 though the passing of the plaintiff through the quarter- acre 
 lot was not necessarily a wrong, yet it was prrtna facie such, 
 and the plaintiff must set out the facts which deprived it of 
 its wrongful character, or deny the passing with the wrong- 
 ful object charged, and that his intent would then be a ques- 
 tion for the jury. 
 
 § 81. Where the action is against several, the defendants 
 may plead separately or jointly ; ^ but on a joint plea in 
 trespass, no separate justification can be set up. The plea 
 being entire, cannot be good in part and bad in part, an 
 entire plea not being divisible. Each defendant waives any 
 
 ' 4 Post. 440. ^ Lansing v. Montgomery, 3 Johns. 382,
 
 § 82. PLEA. 83 
 
 privilege or defense peculiar to himself, and must. share the 
 fate of his associates as to any matter of justification. Con- 
 sequently, if the matter jointly pleaded be insufficient as to 
 one of the parties, it is so as to all.^ An officer even forfeits 
 his right to double costs under the statute by uniting in a 
 plea with a defendant who has not the same right.^ Declara- 
 tion in trespass against three. Plea by all, not guilty. 
 Separate pleas of justification by two. Replication to these 
 pleas that those two defendants were guilty of excess. Re- 
 joinder by all three defendants that they were not all three 
 guilty of excess. On demurrer, the rejoinders were held ill, 
 and judgment was rendered for the plaintifi^.^ * 
 
 § 82. It is an established rule of the common law, that if 
 a defendant has cause of justification or excuse, he must 
 plead it, and cannot give it in evidence under the general 
 issue. The reason of the rule applies to actions for trespass, 
 it being necessary to prevent surprise, and to enable parties 
 to go to trial on equal terms.^ f In Briggs v. Mason ,^ the 
 
 ' Schermerlinrn v. Tripp, 2Caines, 108; Earl of Manchester v. Vale. 1 Saund. 
 28, note 2 ; Bradley v. Powers, 7 Cowen, 330 ; Moors v. Parker, 3 Mass. 310 ; Glea- 
 son V. Edmunds, 2 Scam. 448. 
 
 ^ Merrill v. Near, 5 Wend. 237; AVales v. Hart, 2 Cowen, 426. 
 
 = Morrow v. Belcher, 7 D. & E. 187; 4 B. & C. 704; Anon. Lofft. 364. 
 
 * Hall V. Fearnley, 3 Gale & D. 10; 7 Ju.r. 61; 12 L. J. N. S. 22; Walker v. 
 Hitchccck, 19 Vt. 034; Austin v. Norris, 11 lb. 38; Pearcy v. Walter, 6 Car. & 
 P. 232; Fuller v. Rounceville, 9 Fost. 554. 
 
 " 31 Vt. 433. 
 
 * "The principle has been established that if two or more defendants join 
 in a justification of a trespass, by a special plea which would have been a justifi- 
 cation to some of them had they pleaded it separately, but which would not 
 justify others of them, the plea is bad as to all. The reason is. that the court 
 cannot sever the justification, and say that one is guilty and the other is not, 
 when they all put themselves on the same terms. This rule is a very artificial 
 one, and ought never to be extended beyond the very cases to which il has been 
 applied ; and it may safely be asserted that it never has been extended to the 
 general issue of not guilty pleaded jointly " (Spencer, Ch. J., delivering opinion 
 in Higl)y v. Williams, 16 Johns. 215). 
 
 After issue joined, the defendant may move to withdraw the general issue, 
 pay money into court, and jilead {h novo (Devayncs v. Boys, 2 Marsh. 356; 7 
 Taunt. 33; Nestor v. Newcome, 4 D. & R. 776; 3 B. & C. 159). Where the 
 general issue is on record, and the defendant means to sutler judgment by 
 default on a new assignment, so much of the general issue as'applies to the tres- 
 passes newly assigned should be withdrawn (Cross v. Johnson, 4 M. & K. 290). 
 
 t Mr. Starkie (Tr. on Ev. vol. 3, p. 1462) says: "The defendant cannot 
 under the general issue, except by virtue of the po&itive enactment of a statute,
 
 84 TRESPASS AS A REMEDY. § 82. 
 
 ' defendant songlit to estaljlisli tlie following exception : That 
 when the plaintiff, in proving the trespass, also proves those 
 facts which justify the trespass, so that in reality no prima 
 
 facie trespass is established by the plaintiff, which is not at 
 the same time disproved, then the matter in justification 
 may be relied upon under the general issue. It was urged 
 that the object in requiring a special plea being to apprise 
 the plaintiff' 6i the facts to be relied upon in defense, where 
 the plaintiff himself proved those facts, the reason of the 
 rule ceased. But the court did not adoj)t this view.* 
 
 give in evidence any matter in excuse, justification, or satisfaction of the alleged 
 trespass, or any interest short of jjroperty and nght of possession — such as a 
 right of common, or a public or private right of way, or a right to an easement." 
 The same rule is found in 1 Chitty's PL 492, and several authorities are cited to 
 support it, that wherever the act would he prima facie a trespass at common law', 
 any matter of justification or excuse must be pleaded. And see Babcock v. 
 Lamb, 1 Cowen, 238, where this very point was decided. 
 
 At common law, the pleadings and evidence formed coiTelative branches 
 of the law, and were in symmetiy. A party was bound to prove what he 
 alleged, if traversed, and he was neither bound nor permitted to prove more ; 
 not bound to prove more, as he had not so undertaken, and would be therefore 
 unprepared, and not permitted, as it would be a surprise on the opposite party. 
 This extended early to all personal actions then in use — trespass, detinue, re- 
 plevin, account, covenant, and debt. Afterward, in the actions of trover, as- 
 sumpsit, and trespass on the case, this rule was much relaxed, and the relaxation 
 gradually extended to debt, and perhaps to some other actions ex contractu. The 
 expense which this occasioned, in preparing at all points, induced a law in En- 
 gland by which every matter was required to be specially pleaded, even in 
 assumpsit. This relaxation, neither in England or America, ever extended to 
 the action of trespass (Austin v. Norris, 11 Vt. 88). 
 
 Where the statute provides that a written notice of facts relied upon in de- 
 fense may accompany the general issue, it follows that if the evidence given 
 under such notice establishes a legal defense, the issue must be found for the de- 
 fendant, although, in the outset, the plaintiff may have fully made out his cause 
 of action (Paige v. Smith, 18 Vt. 251). 
 
 Where an alleged trespass requires a denial or refutation, which the defend- 
 ant refuses to make, it is presumjjtive evidence of the truth of the charge (Wheat 
 V. Groom, 7 Ala. 349). 
 
 * Matters which do not directly contradict that which a plaintiS" is bound 
 to prove in an action of trespass under the general issue, but which show col- 
 laterally that the action is not maintainable, must be specially pleaded, or a brief 
 statement thereof filed under the statute. Therefore, in an action of trespass 
 for killing a horse, the defendant cannot under the general issue be permitted 
 to prove that he acted in self-defense (Stow v. Scribner, 6 New Hamp. 24). 
 
 An act done by authority must be specially pleaded (Martin v. Clark, 1 Hemp, 
 259). 
 
 In an action of trespass, an arbitration and award must be specially pleaded, 
 and cannot be proved under the plea of accord and satisfaction (Hubbert v. Col- 
 lier, 6 Ala. 269). 
 
 The right of possession must be pleaded under the general issue, and not 
 specially (Sage v. Keesecker, 1 Morris, 838). 
 
 Under the plea of not guilty, in trespass, and notice of a former recovery by
 
 §§ 83, 84. PLEA. 85 
 
 § 83. If a defendant, in justification of a trespass, relies 
 either on an authority in law or in fact, it is sufficient to set 
 forth this authority in his plea. If, by an abuse of an au- 
 thority in law, he becomes a trespasser ab initio^ or if an 
 authority in fact is exceeded, so as to be no justification for 
 what was done farther than the authority warranted, such 
 abuse or such excess must be set forth in a rejDlication. A 
 defendant ma}^, however, in his plea, set forth such proceed- 
 ings on his part as will show him to be a trespasser ah 
 initio. As if in justifying the taking on an execution or 
 warrant for the collection of taxes, he should state that he 
 sold the property taken at private sale, the plaintiff might 
 demur, and it would not be necessary to point out the abuse 
 by a replication. But if, in stating his proceedings after the 
 taking, he neglects to state those steps which he ought to 
 have taken in order to render his proceedings regular, it is a 
 mere omission ; and as it was' not necessary for him to set 
 forth anything more than would justify the taking, so, if he 
 neglect to state his after proceedings, or states them defect- 
 ively, he is not on that account to be treated as a trespasser 
 fi'om the beginning.^ 
 
 § 84. A former recovery must be specially pleaded,^ A 
 recovery in trespass is a bar to an action brought for a 
 trespass committed prior to the commencement of the action 
 in which the recovery was had ; otherwise, it would be in 
 the power of a party to split up trespasses and multiply 
 actions for every distinct act.'^ "' In White v. Mosely,* it was 
 held, that when there are distinct torts committed consecu- 
 tively, but in different places, and the plaintiff brings his 
 
 the defendant in a suit for the same cause of action, the proof must I)e such as 
 ■would supijort a good plea in bar, if pleaded specially (Clark v. Harrington, 4 
 Vt. 69). 
 
 ' Andrews v. Chase, 5 Vt. 409. 
 
 => Young V. Rummell, 2 Hill, 478; s. c. 5 Hill, 60; Plahn v. Ritter, 12 111. 80. 
 
 ' Fields V. Law, 2 Root, 320; iwat, % 102. " 8 Pick. 356. 
 
 * In an action against several, an answer setting up a former recovery against 
 one, to be good, must aver actual satisfaction (Wehle agst. Butler, 43 How. Pr. 
 R. 5 ; Wies agst. Fanning, 9 lb. 543).
 
 86 TRESPASS AS A REMEDY. § 85. 
 
 action for one only, such former suit and judgment tliereon, 
 altliough the action might proj)erly have embraced both the 
 torts, yet constitutes no bar to a second action for the 
 other act. But the case of Trask v. Hartford & New 
 Haven R. K^ decided that a judgment in a civil suit upon 
 a certain alleged cause of action was conclusive upon the 
 j)arties in relation to it, and that another suit for the same 
 cause could not be maintained for any purpose what'ever. 
 In that case, the claim for damages in the different actions 
 was wholly distinct, the one being the loss of a shop and the 
 other the loss of a dwellino:-house. No damao;es had been 
 claimed or recovered in the first action for the loss of the 
 house; but the loss of each was caused by the same tor- 
 tious act, and one recovery for any part of the damages 
 caused by such act was held a bar to a second action. 
 The court said that " it would be unjust, as well as in vio- 
 lation of the fixed rule of law, to allow the plaintiff to 
 subject the defendants to the hazard and expense of another 
 suit, to obtain an advantage which he lost either by his own 
 carelessness and neglect, or by an intentional withholding of 
 a part of his proof 
 
 § 85. Under a general submission of all matters exist- 
 ing between the parties, if a party withholds a part of 
 his claim from the arbitration, he cannot, as a general rule, 
 afterward enforce it against the other party to the submis- 
 sion. But as the cases on this subject proceed on the 
 ground that the party is bound by his contract of submis- 
 sion to present the claim and have it adjudicated by the 
 arbitrator, it does not operate to bar him from his remedy 
 against one who was no party to the submission. Therefore 
 the submission to arbitration of all matters cxistino; between a 
 creditor and debtor was held not to bar the debtor's remedy 
 against an officer not a party to the submission who wrong- 
 fully attached and sold the debtor's only cow under a writ 
 in favor of the creditor.^ 
 
 ' 2 Allen, 331. " Robiuson v. Hawkins, 38 Vt. 693.
 
 |§ 86, 87. REPLICATION. 87 
 
 16. Replication. 
 
 § 86. The plaintiff need only traverse the substantial 
 averments in tbe plea of justification. Where the defendant, 
 justified under a prescriptive right to a duty called tensary, 
 and to the like right to distrain for it, it was held that the 
 plaintiff might traverse the riglit to the duty without trav- 
 ersing the right to distrain.^ The defendant pleaded that 
 disputes existing between him and the plaintiff', including 
 the plaintiff" 's claim in respect of the alleged trespass, it was 
 agreed by the plaintiff and defendant that the claims should 
 be mutually relinquished, and that the defendant should pay 
 to the plaintiff 5/., as a final settlement and a full satisfaction 
 and discharge of all the plaintiff's claims against the defend- 
 ant, and, amongst other things, of all the damages sustained 
 by the plaintiff" by reason of the trespass ; and that the de- 
 fendant did, in pursuance of such agreement, before action, 
 pay the plaintiff" the said sum as a final settlement, and in 
 full satisfaction and discharge of all claims, &c., and, amongst 
 otter things, of all damages, <fec. ; and that the plaintiff then 
 accepted and received from the defendant, as sucb settlement, 
 satisfaction and discharge, the said sum. It was held that a 
 replication traversing the agreement, though not noticing the 
 payment or acceptance, answered the plea.^ 
 
 § 87. Where the defendant pleads that he tendered to 
 the plaintiff a certain sum, being sufficient amends, the 
 plaintiff should reply that the defendant did not tender the 
 sum named, or that the sum was insufficient, and not that he 
 did not tender suflicient amends.^ A replication to a plea of 
 property in the defendant, traversing the same, and averring 
 property in the plaintiff, is irrelevant.^ If the trespass be 
 continuing, consisting of a series of connected acts extending 
 over a considerable period, the acts which constitute the 
 entire trespass are divisible, and may be replied to separately. 
 
 ' Griffith V. Williams, 1 Wils. 338. "- Bainbridgc v. Lax, 9 Q. B. 819. 
 
 ' Williams v. Price, 3 B. «& Adol. 695. 
 
 ' Outcalt V. Darling, 1 Dutcher, N. J. 443.
 
 88 TRESPASS AS A REMEDY. §§ 88, 89- 
 
 Accordingly, Avliere tlie declaration alleged that the defend- 
 ant entered the plaintiff's house, and stayed therein four 
 days, and the defendant pleaded that he had a right to enter 
 and stay two days, to which the plaintiff replied, denying his 
 right to enter at all, but alleging that if he had a right, it 
 was to stay two days only, and that he had stayed two days 
 more without any color of authority, it was held that the 
 trespass w^as divisible and the replication good.^ 
 
 § 88. It is not necessary to reply excess in every case, 
 where the allegations in the declaration are covered by a 
 plea of justification. Evidence of acts consistent with the 
 declaration, but not within the jus^tification, may be given 
 under de injuria? A general replication de injuria^ how- 
 ever, is bad when the defendant insists on a right, and is 
 good only when he pleads matter of excuse, but it w411 be 
 cured by the verdict.^ 
 
 l7. New assignnnent. 
 
 § 89. A new assignment is employed to ascertain with 
 precision, what has been alleged only generally in the dec- 
 laration. It is used to explain that more fully which is only 
 apparently answered by the plea. A very common instance 
 of its use is when the plaintiff has declared generally for a 
 trespass to his close in a certain town, without a particular 
 description of the boundaries ; and the defendant justifies an 
 entry into a close in that place, describing it, which is, in 
 fact, not the close the plaintiff intended. Where the parties 
 agree as to the place, the plaintiff cannot new assign with 
 reference to that. ^ The necessity for a n^ew assignment in 
 any case is not so much for the purpose of giving information 
 to the defendant and enable him to meet the charge and pre- 
 vent his being misled, as to conform to the technical rules. 
 
 ' Loweth V. Smith, 12 M. & W. 582; Worth v. Terringtou, 13 M. & W. 781. 
 
 * Reece v. Taylor, 4 Nev. & M. 469 ; 1 Har. & W. 15. 
 
 ' Lytle V. Lee, 5 .Johns. 112. 
 
 "■ 1 Chitty's PI. 413; 1 Wms. Sauud. 299 b, note; lb. 300.
 
 §§ 90, 91. NEW ASSIGNMENT. 89 
 
 pleadings and practice of tlie court. It is unknown in 
 equity and admiralty. In New York it is superseded by 
 the Code.^ 
 
 § 90. Where there is a new assignment by the plaintiff, 
 without denying the special plea, the plaintiff is restricted to 
 such trespasses as are newly assigned.^ The plaintiff in 
 an action of trespass charged tw^o distinct acts of trespass, 
 which the defendant in his plea undertook to justify; where- 
 upon the plaintiff newly assigned another trespass, which he 
 averred was different from those mentioned in the plea ; and 
 to the trespass newly assigned, the defendant pleaded not 
 guilty. It was held that the plaintiff was bound to prove 
 another and different trespass from those charged in the writ, 
 and that if the plea in justification was insufficient, he should 
 have traversed it or demurred. ^ ^ 
 
 § 91. Where the plaintiff complains of a single act of 
 trespass in each count, each of which is justified by the de- 
 fendant in his several pleas, the plaintiff cannot in his repli- 
 cation take issue upon the facts of such justification, and also 
 newly assign either the same or different matters ; such repli- 
 cation and new assignment being double."* And the objec- 
 tion is sufficiently indicated by stating as special cause of 
 demurrer, that the plaintiff' had attempted to put in issue 
 several distinct acts. ° A replication de injuria, with a new 
 assignment that the defendant committed the trespass with 
 more violence and in a greater degree than was necessary for 
 the purposes in the plea mentioned, is demurrable. ^ 
 
 ' Stewart v. Wallis, 80 Barb. 344. - Bragg v. Wetzel, 5 Blackf. 95. 
 
 ' Boynton v. Willarcl, 10 Pick. 160. See Am. Jurist, Vol. II, where this 
 case is doubted. 
 
 * Stults V. Buckelew, 4 Dutchcr, N. J. 150; Taylor v. Smith, 7 Taunt. 156. 
 
 " Cheaslev v. Barnes, 10 East, 73. See Thomas v. Marsh, 5 Car. & P. 596; 
 Gisborne v. Wyatt, 1 Gale, 35; Worth v. Terrington, 13 M. & W. 781. 
 « Ii)id. 
 
 * The second count in trespass being a general one, will not always obviate 
 the necessity of a new assignment (Smith v. Milles, 1 T. R. 480). There can 
 only be a new assignment where there is a special plea (lb.).
 
 DO TRESPASS AS A REMEDY. §§ 92, 93. 
 
 18. Higlit to open and close. 
 
 § 92. Where the defendant by his plea, admits the whole 
 cause of action stated in the declaration, and undertakes to 
 remove or defeat it by new matter set up in his bar — as 
 when in trespass to land, the defendant acknowledges the 
 act, and claims jn his jjlea the soil and freehold in himself or 
 some one under whom he acts — he has the affirmative or 
 primary burden of proof, and the right to open and close at 
 the trial. -^ In a case in Massachusetts,^ a new trial was 
 granted because this privilege was denied to the defendant 
 in the court beloAv, notwithstanding the verdict appeared to 
 be right. 
 
 19. Evidence. 
 
 § 93. If affirmative pleas are pleaded with the general 
 issue, the plaintiff may, if he choose, give in evidence any 
 matter which goes to destroy the justifications so pleaded, by 
 Avay of anticipating the defense. Or he may content himself 
 with proving the facts charged in the declaration, and let the 
 defendant make out what he can in justification, and trust to 
 answering it by evidence in reply. But if he does this, he 
 will be restricted to such evidence as goes to answer the case 
 attempted to be made out by the defendant in support of 
 his pleas. ^ Where a justification is pleaded to which the 
 plaintiff new assigns that the action is brought for another 
 and different trespass than that mentioned in the plea, and 
 not guilty is pleaded to the new assignment, if the plaintiff 
 give in evidence only one trespass, it is incumbent on him to 
 show that the trespass so given in evidence, is clearly a dif- 
 ferent one from that mentioned in the plea; if the circum- 
 stances are alike, the jury ought to consider it to be the same.* 
 
 ' Seavy v. Dearborn, 19 N. Haiup. 351; Ayer v. Austin, 6 Pick. 225; post^ 
 §243. 
 
 ' Davis V. Mason, 4 Pick. 15G. See Sedgwick on Damages, Gth ed. 738, 739, 
 740. 
 
 ' Pierpont v. Shapland, 1 Car. & P. 447. 
 
 * Darby v. Smith, 2 M. & Rob, 184.
 
 §§ 94-9G. EVIDENCE. 91 
 
 § 94. The plaintiff may in general recover without prov- 
 ing the wliole declaration, provided he proves so much of it 
 as would, standing alone, constitute a good ground of action. 
 There is an exception to the rule where the count contains 
 matter of description, and in consequence of proving only a 
 part, the proof does not correspond with the allegation. In 
 the latter case, the variance will be fatal. ^ 
 
 § 95. All of the circumstances accompanying the tres- 
 pass, and which were a part of the res gestce^ may be proved 
 in order to show the temper and purposes with which the 
 trespass was committed, and the extent of the injury.^ If 
 special damage be alleged, such special damage may also be 
 given in evidence. But the opinions of witnesses as to what 
 amount in money such damage should be estimated at, are 
 not admissible. That belongs to the jury.^* 
 
 § 96. The time when the trespass was committed need 
 not in general be proved as alleged, the plaintiff being at 
 liberty to prove a trespass at any time before action brought, 
 whether before or after the day laid.^ If the trespass be 
 laid on divers days between two dates, the plaintiff may 
 prove several acts of trespass of the nature laid in the dec- 
 
 ' Howe V. Wilson, 1 Deuio, 181; Ricketts v. Salwey, 2 Barn. & Aid. 360. 
 "" Ogden V. Gibbons, 2 South. 518; iwst, § 598. 
 ^ Duff V. Lyon, 1 E. D. Smith, 536. 
 
 * Terpenning v. Gallup, 8 Clarke Iowa R. 74 ; ante, § 73. 
 
 * Where it appeared tliat the wife of the plaintiff was insulted and harmed, 
 it was held that although that might he shown, yet that the jury could not allow 
 damages for it, as she might, by joining with her husband, bring a separate 
 action for such injury (Cook v. Garza, 9 Texas, 358).^ 
 
 In an action of trespass, the certificate of damages of appraisers chosen by the 
 parties was held admissible in evidence, the appraisers having been previously 
 examined (Crane v. Sayre, 1 Ilalst. 110). In Daif v. Lyon, supra, it was said 
 that as the defendant cross-examined the witness as to the items of his estimate 
 of damage, he thereby made the evidence his own. But it was held that the 
 question having been admitted by the court in the direct examination, the de- 
 fendant had a right to test the correctness of the answer, after exception, by a 
 cross-examination, without losing the benefit of the exception. It was also said, 
 that the testimony was that of ex[)erts, and therefore admissible. But it was 
 held that no such doctrine was applicable to evidence of this kind. •' I know 
 not," said Ingraham, J., "any particular skill to be obtained by persons in esti- 
 mating damages arising from a tres|)ass, unless it be fiom having been suiferers 
 from similar acts on former occasions, whicii is not the kind of knowledge re- 
 quired from an expert."
 
 92 TEESPASS AS A REMEDY. § 97. 
 
 laratiou committed between these two dates ; ^ or at liis op- 
 tion, may give evidence of a single trespass committed at 
 some other time ; but he cannot do both. ^ And where in an 
 action against several, the plaintiff fails in proving a joint 
 trespass by all on the day he first selects, he may abandon 
 that trespass, and prove a joint trespass at another time. ^* 
 
 § 97. The laws of one State of the Union with respect to 
 another State are placed upon the same ground as the laws 
 of a foreign country. Whenever they are brought in ques- 
 tion, they must, in both instances, be proved as other facts.^ 
 
 ' Myrick V. Downer, 18 Vt. 360. 
 
 " 1 Archb. N. P. 406; 3 Stark. Ev. 4th Am. ed. 1441; 2 Greenlf. Ev. §§ 229- 
 624; Pierce v. Pickens, 16 Mass. 470; Powell v. Bagg, 15 Gray, 507; Jorali- 
 mon V. Pierpont, Anthon's N. P. R. 59. 
 
 ' Sedley v. Sntherlaud. 3 Esp. 202 ; Tait v. Harris, 6 C. & P. 73 ; Roper v. 
 Harper, 5 Scott, 2o0 ; 4 Ring. N. C. 20. 
 
 * Church V. Hubbard, 2 Cranch. 187 ; Consequa v. Willings, 1 Pet. C. C. R. 
 225; Brackett v. Norton, 4 Conn. 518; Talbot v. Seaman, 1 Cranch, 1; Brush v. 
 Scribner, 11 Conn. 407. 
 
 * The rule at common law required that the iirst day should be laid in the 
 declaration anterior to the first wrongful act, and the plaintiff would not be per- 
 mitted to give in evidence repeated acts of trespass, unless committed during 
 the time laid. But he might prove a single act of trespass upon the first day 
 named. In such case, he was confined to that act; and the averment of the sev- 
 eral trespasses after the first day named, was treated as surplusage. In New 
 York, so long as the averment in continuando was relied upon and regarded as a 
 part of the declaration, any evidence of acts not embraced within the description 
 was inadmissible on the ground of variance. But now, under the Code, §§ 169, 
 170, which rejects all variance between the allegaticm in a pleading and the 
 proof, unless it has actually misled a party to his prejudice, although trespasses 
 are laid with a continuando, and several acts of trespass within the time alleged 
 are proved, the plaintiff may prove another act anterior to the day stated as the 
 commencement of the trespass (Dubois v. Beaver, 25 N. Y. 123). ''The old 
 rule was in the highest degree technical, and without much foundation in reason. 
 That rule, where the trespasses were laid with a continuance, forbade the intro- 
 duction of evidence of trespasses, unless committed within the space of time laid 
 in the declaration, provided acts of trespass within that period had been already 
 proved. But if they had not been, then it was allowable to give evidence of an 
 act of trespass earlier than the first day named in the declaration. I think that 
 rule, so far as it rests upon the technical foundation above mentioned, ought not 
 to be enforced under the Code — at least, as a rule of unbending rigor: but that 
 the decision should turn upon the materiality of the variance from the allegation 
 in the complaint, and the question whether the opposite party has been misled 
 or will be prejudiced by the admission of the testimony " (Relyea v. Beaver, 34 
 Barb. 547, per Hogeboom, J.). In Maine, the action being for taking a yoke of 
 cattle, it was insisted that there was a variance between the allegation in the 
 writ and the proof as to the identity of the property taken — that the writ alleged 
 that the defendants took the plaintiff's oxen July 1st, while the proof showed 
 that they were taken July IGth. But it was held that the precise time of taking 
 was not material, if it was within the statute of limitations (Allen v. Archer, 49 
 3Iaine, 346).
 
 §§ 98, 9i). EvroENCE. 93 
 
 In Dyer against Smith/ which was an action for false im- 
 prisonment, the defendant was a justice of the peace in the 
 State of Rhode Island, and, as such, had rendered judgment 
 by default against the plaintiff, issued an execution, and 
 caused the plaintiff to be committed to jail. The plaintiff 
 claimed that the judgment was rendered after the suit had 
 been discontinued, and consequently was invalid, and af- 
 forded no j^rotection to the defendant. The validity of th'e 
 judgment depended upon the laws of Rhode Island. It was 
 held that what those laws were, was a question of fact to be 
 proved before the jury, and that the courts of Connecticut 
 could tot take notice of them. 
 
 § 98. It is competent for the jury to consider the words 
 which the defendant used subsequent to the trespass, in ar- 
 riving at a conclusion whether or not he was a joint tres- 
 passer with those actually committing the mischief.^ And 
 where a community of design is established, the acts of each 
 of the parties, and their declarations at the time of commit- 
 ting the injury, are evidence against each.^ 
 
 § 99. Evidence is admissible which implicates only one 
 of two defendants sued for a trespass;* and the plaintiff is 
 bound to elect, before the defendants open their case, against 
 which defendant he will proceed.^ But after a joint trespass 
 is proved, the unconnected and distinct acts of some of the 
 defendants cannot be given in evidence.^ If there were a 
 number of distinct trespasses, in some of which only a part 
 of the defendants participated, the plaintiff can recover 
 against all the defendants for those acts only in which all 
 were concerned.'^ Where U23on proof of a trespass affecting 
 
 ' 13 Conn. 384. 
 
 " McLauglilin v. Pryor, 4 Scott, K R. 655; 1 Car. & M. 354; 6 Jur. 374. 
 
 ^ Colt V. Eves, 12 Conn. 243; 2 Stark. Ev. 403; 1 East's PI. C. 97. 
 
 * Fox V. Jackson, 8 Barb. 355. 
 
 * Howard v. Newton, 2 M. & Rob. 509; see White v. Hill, 9 Jur. 129. 
 
 * Higby V. Williams, 16 Johns. 215. 
 
 ' Myrick V. Downer, supra; Snodgrass v. Hunt, 15 Ind. 274; M'Carron v. 
 O'Conuell, 7 Cal. 152.
 
 94 TRESPASS AS A REMEDY. §§ 100, 101, 
 
 different defendants, the counsel for the plaintiff elects to 
 proceed as to the trespasses affecting two only, he cannot 
 afterward proceed, even, as against those defendants, on other 
 trespasses affecting all.^ The defendants against whom the 
 counsel abandons the case, ought not, however, to be acquit- 
 ted, until the speciab pleas in which they have joined are 
 disposed of.^ Where in a joint action of trespass against 
 six defendants, the plaintiff' proved a joint trespass com- 
 mitted by them all, and then went on to prove another 
 act" of trespass by three of them, expecting to connect the 
 other three with this also, but failed in so doing, it was 
 lield that the latter three were entitled to be acquitted 
 before the defense w^as opened, as the plaintiff must be 
 taken to have elected to waive the joint trespass, and. to 
 have gone on against those three for the second trespass 
 only.^ 
 
 § 100. In trespass against several, if any suffer judgment 
 by default, the plaintiff' need only give evidence to affect the 
 rest ; and it is for the jury to determine whether the trespass 
 proved is the same as that confessed ; but the plaintiff cannot 
 be nonsuited.* ^' 
 
 § 101. Where in an action of trespass against several^ 
 there is a joint plea of not guilty, and it appears that there 
 are some defendants against whom no evidence has been 
 given, they may be discharged, or rather acquitted, and ex- 
 amined as witnesses for the other defendants.^! A distinction 
 
 ' Pricbarcl v. Campbell, 5 Ind. 494. ^ Hitchen v. Teale, 2 M. & Rob. 30. 
 
 ^ Wynne v. Anderson, 3 Car. & P. 596. 
 
 ■* Harris v. Butterly, Cowp. 483; Weller v. Goyton, 1 Burr. 358; Johnson v. 
 Vutrick, 14 Ind. 216. 
 
 ^ Wakeman v. Lindsey, 19 L. J. Q. B. 168; Church v. De Wolf, 2 Root, 282. 
 
 * In personal actions, the nonsuit of one is the nonsuit of all the plaintiffs. 
 Accordingly -where in an action of trespass, tliree of the plaintifl's presented to 
 the court a petition, stating that the action was bronglit -without their consent 
 or kno-wledge, and stating that they became nonsuit, it was held that the non- 
 suit extended to all the plaintiffs (Caverly v. Jones, 3 Fost. 573; citing Kimball 
 V. Wilson, 3 N. Hamp. 101; Wilson v. Mower, 5 Mass. 411; Webb v. Steele, 13 
 jSr. Hamp. 230; Eastman v. Wright. 6 Pick. 316). 
 
 t In New York, subsequent to the enactment of the statute providing that a 
 party may be examined in behalf of his coplaintiff or codefendant as to any mat-
 
 §101. EVIDENCE. 95 
 
 has been inacle between a joint plea of the general issue, and 
 a joint plea of justification. In the latter case, if tlie plea is 
 
 ter in which he is not jointly interested or liable with such coplaintifiF or code- 
 fendant, and as to which a separate and not joint verdict or judgment shall be 
 rendered (Laws of N. Y. of 1851, p. 90;', § 397), in an action for an assault and 
 battery, charged to have been committed upon the plaintiff by five persons, the 
 judge at the circuit refused to permit each defendant to testify for his codefend- 
 ant. But tlie Court of Appeals (Beal against Finch, 11 N. Y. 128), in reversing 
 the judgment, said : " Though this section is not expressed in very clear terms, 
 it seems to me there can be no doubt as to its meaning. Of course, it can be ap- 
 plicable only when defendants are sued jointly. There can be codefendants in 
 no other case; and it declares as to what matters a defendant, thus jointly sued 
 with others, may be a witness for his codefendant. It is as to a matter in which 
 he is not jointly interested, and as to which a separate judgment may be ren- 
 dered. He is a competent witness in all cases where sued jointly, but only as to 
 certain matters. He may prove that his codefendant was not present, or if pres- 
 ent, that he took no part in the assault and battery; or any other separate de- 
 fense of his codefendant. As to such a matter, surely he, the witness, has no 
 interest, and cannot therefore be jointly interested with his codefendant; and as 
 to such matter, a verdict or judgment which is separate, and not joint, can be 
 rendered. * * * In every action for assault and battery, and in all other 
 cases of tort, a verdict and judgment may be rendered in favor of one and 
 against another defendant; that is, in the language of the act, a verdict or 
 judgment, separate and not joint, may be rendered. In such an action, then, a 
 party may be examined for his codefendant as to any matter as to which a sepa- 
 rate and not joint verdict or judgment can be rendered, and as to any mat- 
 ter in which he is not jointly interested or liable with such codefendant. * * * 
 There are many things which the "witness excluded in this case might have 
 proved, that would have constituted a separate defense for the other defendants, 
 and as to which the witness had no interest. He might have proved that the 
 other defendants were not nresent, or took no part in the rencontre, or that the 
 plaintifi" struck first, and that they acted only in self-defense. Any of these 
 matters would constitute an entire and perfect defense for the other defendants 
 for whom he would have testified, and would have been entirely distinct and 
 separate from the defense of the witness. The witness might still have been 
 found guilty, and the other defendants, on his testimony, might be acquitted. 
 So, too, the witness would have been competent to testify as to admissions of 
 the plaintiff, or as to any personal defense arising out of subsequent transac- 
 tions, such as accord and satisfaction, &c., if it had been put in issue by the 
 pleadings. Upon the mere question of mitigation, where a cause of action is 
 clearly made out against all the defendants, I do not see hov,- one defendant can 
 be a competent witness for his codefendant, for that is a matter as to which he 
 is jointly interested with his codefendant, and it is therefore within the excep- 
 tion made by the statute. * * * if^ however, the case made out against the 
 defendant who is called as a witness is a doubtful one, I see no objection to 
 receiving his testimony to mitigate damages for his codefendants, under proper 
 instructions to the jury to consider it if they acquit the witness, and to reject it 
 if they find him guilty." Denio, J., at the close of a long dissenting opinion, 
 in the course of which he took strong ground against the propriety of admitting 
 parties to testify, said : "In a large class of litigated cases, especially in actions 
 like the one under review, the parties come to the trial with minds excited by 
 interest, prejudice, and passion. A system which shall invite them to take the 
 stand as witnesses against each other, will ofl'er a premium to the practice of dis- 
 simulation, craftiness, and perjury; and will, in my judgment, inflict an injury 
 to public morals which no fancied advantage can, in any degree, atone for. The 
 notion of limiting the application of the testimony to the case of the other par- 
 ties jointly charged witli the witness, would be found, in most cases, entirely
 
 96 TRESPASS AS A REMEDY. § 101. 
 
 not supported as to all, neither of the defendants can be pro- 
 tected under it.^ If there be any, even the slightest evidence 
 against the defendant, he cannot be discharged before the 
 rest, but the entire case must go to the jury.^ It is in the 
 discretion of the judge to defer taking an acquittal of one of 
 several defendants until all the evidence in favor of the other 
 defendants has been gone through ; ^ and in England, this is 
 the usual practice.* Where it is in the least probable that 
 evidence which will be given for the other defendants 
 may fix the defendant with liability, the judge will not allow 
 his acquittal at the end of the plaintiffs case.^ The court 
 may, in its discretion, direct the trial of one of the defendants 
 first, when it appears that there is no substantial evidence 
 against him ; and if acquitted, he may be a witness for the 
 other defendants.^ * An acquittal is allowed to avoid the 
 
 illusory. The present action furnishes as good an illustration of that point as 
 any other. Here were five defendants charged with a joint assault and battery 
 upon an individual. Testimony from indifferent witnesses had made out a prima 
 fade case. It is therefore probable that a personal conflict of some character had 
 taken place, and that the question was as to which party was the aggressor, the 
 plaintiff or the defendants. Then it is proposed that each defendant shall give 
 his account of the matter on oath, not professedly as evidence in his own behalf, 
 but as a witness for the others; and the jury, sitting without the conveniences 
 for taking minutes, and not possessing habits to qualify them for making a dis- 
 criminating analysis of the evidence, are expected to give a verdict upon the 
 case of each defendant — not upon the general merits of the conflict, according 
 to all the testimonj' — but by applying to each defendant a history of the occur- 
 rence, of a different ciiaracter, it may be, from that w'hich is to be applied to 
 each of tlie others. This would be sufficiently intolerable if the plaintiff's ac- 
 count was also to be heard ; but he, unfortunately, having no associate on the 
 record, must submit to be silent, and have the case determined upon the oaths 
 of the very individuals whom he has prosecuted for an outrage upon his person." 
 
 ' Schermerhorn v. Tripp, 2 Caines, 108; Drake v, Barrymore, 14 Johns. 166. 
 
 ^ Brown v. Howard, 14 Johns. 119; Hoar v. Clute, 15 lb. 224; Leach v. 
 Wilkinson, 1 M. & Rob. 537. 
 
 ' White V. Hill, 14 L. J. N. S. 79; 9 .Jur. 129. 
 
 * Ibid. ' Spencer v. Harrison, 2 Car. & K. 429. 
 ' Sawyer V. Merrill, 10 Pick. 16; Dorrell v. Johnson, 17 Pick. 263; but see 
 
 Dougherty v. Dorsey, 4 Bibb. 207. 
 
 * In an action of trespass against three, two of whom only are served with 
 process, the one not arrested is a competent witness for the other two (Stockham 
 V. Jones, 10 Johns. 21). 
 
 In an action of trespass against three, one of the defendants pleaded the gen- 
 eral issue. The other defendants, although they appeared on the return of the 
 writ, put in no plea. A jury having been sworn to try the issue joined, rendered 
 a verdict for the plaintiff. It was held that this was equivalent to the formal 
 entry of a nolle prosequi as to the defendants not pleading, or as a verdict acquit- 
 ting them; and that an entry on loose memoranda kept by the clerk of the
 
 § 102. EVIDENCE. 97 
 
 consequences of the improper joinder by tlie plaintiff of de- 
 fendants, merely for the purpose of excluding their testi- 
 mony ; but the want of evidence must be so glaring and ob- 
 vious as to afford strong grounds of belief that the party was 
 arbitrarily made a defendant to prevent his being a witness.^ 
 
 § 102. Proof that the same acts of alleged trespass have 
 already been put in issue between the same parties, and a 
 judgment rendered thereon upon a trial on the merits, will 
 constitute a perfect defense.^ Thus, where the plaintiff, in 
 his declaration, alleged that the defendant beat the plaintiff's 
 head against the ground, and that the plaintiff brought an 
 action for assault and battery for that, and recovered dam- 
 ages, and that, since the recovery of such damages, by reason 
 of the same battery, a piece of the plaintiff' 's skull had come 
 out, and the defendant pleaded, in bar, the recovery men- 
 tioned in the declaration, and averred it to be for the same 
 assault and battery, and the plaintiff demurred, and it was 
 urged that this subsec^uent damage was a new matter, which 
 could not be given in evidence in the first action, when it 
 was not known, it was held that the recovery of damages 
 in the first action was an absolute bar to any subsequent 
 action for the same battery.^ ^ 
 
 court, that the jury were sworn in a suit against the defendant, who pleaded, 
 and others, could not be treated as a part of the record or inconsistent with it, 
 the presumption being that the jury were properly sworn (Breidenthal v. Mc- 
 Kenna, 14 Penn. St. R. 160). 
 
 A defendant in trespass, who has suffered judgment by default, is not a com- 
 petent witness for his codefendant, where the jury are summoned as well to try 
 issues against the one as to assess the damages against the other (Thorpe v. 
 Barber, ""S C. B. 675). 
 
 In an action of trespass against three, who had all jointly, and by one at- 
 torney, pleaded "not guilty by the statute." the judge at Nisi Prius would not, 
 on the application of the plaintiff's counsel just before the jury were sworn, 
 allow a nolle prosequi to be entered as to one of the defendants, in order that he 
 might be called as a witness for the plaintiff. Neither would the judge, imme- 
 diately after the jury were sworn, allow one of the defendants to be acquitted on 
 the application of the plaintiff's counsel, it being stated by the defendant's coun- 
 sel that he appeared for all the defendants and objected to such acquittal (Spen- 
 cer V, Harrison, 3 Car. & K. 439). 
 
 ' Brown v. Howard, supra ; Bates v. Conkling, 10 Wend. 389; Moon v. El- 
 dred, 3 Hill, 104, n. a. 
 
 * Emery v. Fowler, 39 Maine, 326 ; Marsh v. Pier, 4 Rawle, 288 ; ante^ % 84. 
 ' Fetter v. Beale, 1 Salk. 11. 
 
 * " The rule that a judgment is conclusive upon a matter directly in issue 
 
 Vol. I.— 7
 
 98 TRESPASS AS A REMEDY. § 103. 
 
 § 103. The technical rule that a judgment can only be 
 admitted between the parties to the record or their privies, 
 is modified so far as to render it admissible when the same 
 question has been decided and judgment rendered between 
 persons responsible for the acts of others. A familiar exam- 
 ple is presented in suits against a sheriff or his deputy, 
 which, being determined upon the merits, against or in favor 
 of one, will be conclusive upon the other.^ So, likewise, 
 
 upon a former trial is sometimes difficult of application. Any fact attempted 
 to be established by evidence, and controverted by the adverse party, may, in 
 one sense, be said to be in issue. As, for instance, in an action of trespass, if 
 the defendant alleges and attempts to prove that he was in another place than 
 that where the plaintiff's evidence would show him to have been at a certain 
 time, it may be said that this controverted fact is a matter in issue. It may be 
 the only matter put in ccmtroversy by the evidence ; but it is not the matter in 
 issue within the meaning of the rule. It is that matter upon which the plaintiff 
 proceeds by his action, and which the defendant controverts by his pleadings, 
 which is in issue. The pleadings may show specifically what this is, or they 
 may not. If they do not, the party may adduce other evidence to show what 
 was in issue. But facts offered in evidence to establish the matters in issue are 
 not themselves in issue, within the meaning of the rule, although they may be 
 controverted on the trial. Deeds which are merely offered in evidence are not 
 in issue, even if their authenticity be denied. The deed comes in controversy 
 directly, in one sense ; that is, in the course taken by the evidence it is direct 
 and essential. Btit, in another sense, it is incidental and collateral. It is not a 
 matter necessary of itself to the finding of the issue. It may be made so by the 
 parties. There are cases which conflict to some extent with the principle we 
 have thus stated ; some of them holding that, in order to make a record evidence 
 to conclude any matter, it should appear from the record itself that the matter 
 was in issue, and that evidence cannot be admitted that under such a record any 
 particular matter came in question ; while others maintain that a former judg- 
 ment may be given in evidence, accompanied with such parol proof as is necessary 
 to show the grounds upon which it proceeded, where such grounds, from the 
 form of the issue, do not appear by the record itself, provided that the matters 
 alleged to have been passed upon be such as might legitimately have been given 
 in evidence under the issue joined, and such that, when proved to have been 
 given in evidence, it is manifest by the verdict and judgment that they must 
 have been directly and necessarily in question, and passed upon by the jury " 
 (King V. Chase, 15 N. Hamp. 9). In this case, Parker, C. J., in referring to 
 Jackson v. Wood, 3 Wend. 27; s. c. in error, 8 Wend. 9, said: "While, on the 
 one hand, we do not, with the Supreme Court (of New York), deem it essential 
 that the record should of itself show that the matter was in issue, in order to 
 make the determination of it conclusive, we are of opinion, on the other, that 
 the general principle laid down in the Court of Errors is too broad in holding 
 the judgment to be conclusive upon all matters which might legitimately have 
 been given in evidence, under the issue joined, and such that when proved to have 
 been given in evidence, it is manifest, by the verdict and judgment, that they 
 must have been directly and necessarily in question, and passed upon by the 
 jury, and this must include all matters which come in question collaterally by 
 the evidence offered, if they were of such a nature as that it appears the jury 
 must or should have passed upon them." 
 
 ' Ferrers v. Arden, Cro. Eliz. 6G8 ; Kennersley v. Orpe, Dougl. 517 ; Strutt v. 
 Bovingdon, 5 Esp. 56 ; Thurman v. Wild, 11 Ad. & El. 453; Rogers v. Haines, 3 
 Greenlf. 363; White v. Philbrick, 5 lb. 147.
 
 §§ 104, 105. EVIDENCE. 99 
 
 where a juclgmeufc has been rendered against the master for 
 the trespass of his servant, it will bar an action against tlie 
 servant for the same trespass.^ 
 
 § 104. Satisfaction of judgment against one of several 
 joint trespassers will be a bar to an action by the same 
 plaintiff previously commenced, against another of the joint 
 wrong-doers for the same trespass."^ Where it appeared that 
 the defendant and one Libbey had jointly thrown down the 
 plaintiff^'s fence, for which the present action was brought, 
 and that afterward the plaintiff brought another action for 
 the same trespass against Libbey, and recovered judgment, 
 which was satisfied ; it was held that, on the recovery by the 
 plaintiff' of the judgment against Libbey, the claim for dam- 
 ages was canceled as effectually as is would have been by 
 an instrument acknowledging payment, and by a valid con- 
 tract of discharge ; and that the pendency of the action 
 against the cotrespasser did not change the principle.^ The 
 court remarked that perhaps it was in the power of the 
 plaintiff to have omitted to take his judgment against Lib- 
 bey after the verdict, and to have obtained a judgment in ' 
 the present action for the same damages and costs ; but that 
 as he had not done so, the foundation of this action was 
 taken away by the plaintiff's own acts, and no damage 
 could be awarded for what had been satisfied by pay- 
 ment. 
 
 § 105, It is scarcely necessary to say that a recovery in a 
 former action apparently for the same cause, is on\j prima 
 facie evidence that the subsequent demand has been tried ;. 
 
 ' Emery v. Fowler, 39 Maine, 74. * Mitchell v. Libbey, 33 Maine, 74. 
 
 * A judgment against two or more for a joint trespass will not bar an action 
 against one of them for a several trespass (Davis v. Caswell, 50 Maine, 294). 
 
 A party may omit to assess his damages on one of several distinct counts for 
 acknowledged distinct causes of action, and if he does so. a judgment for dam- 
 ages upon the other causes of action will not bar a second suit for the causes of 
 action for which no damages were assessed (Goodrich v. Yale, 8 Allen, 454). 
 Per Dewey, J., citing Seddon v. Tutop, 6 Term R. 607, in which there were two 
 distinct counts, one on a promissory note, and the other for goods sold, set forth 
 in distinct counts, and not in the least blended.
 
 100 TRESPASS AS A EEMEDY. §§ 106, 107. 
 
 and that tlie test to apply is, whether the same evidence 
 will support both actions.^ 
 
 § 106. Proof that the plaintiff received money in con- 
 sideration of the release of a codefendant is admissible in 
 mitigation of damages." But what is done by way of set- 
 tlement or compromise with some of several trespassers is 
 not admissible for the purpose of affording a measure or 
 rule of damages as to the rest. " It is quite as probable 
 that the plaintiffs fixed the sums they would insist upon 
 from the defendants' cotrespassers, w^ith reference to their 
 opinion of the degree of relative culpability to be attached 
 to them, as with reference to their own injury. The defend- 
 ants being legally liable for the whole, are not entitled to 
 complain that the plaintiffs do not pursue others, or have 
 collected less of others than they seek to recover of them. 
 It is their good fortune that the plaintiffs have collected any- 
 thing of others. If the plaintiffs have not been fully satis- 
 fied for the wrong done them, the defendants can only insist 
 that whatever their cotrespassers have done toward it shall 
 apply ^ro tanto^ and they are liable for the balance." ^ 
 
 § 107. Whether the plaintiff shall be permitted to call 
 further witnesses after the defendant has rested, to give 
 merely cumulative testimony to the very facts alleged in the 
 complaint, is a matter w^ithin the discretion of the court; 
 and the exercise of that discretion — unless in case of very 
 palpable and gross injustice- — will not be ground for 
 reversal.^ * 
 
 » Seddon v. Tutpot, 6 Term R. 607 ; Kitchen v. Campbell, 3 Wils. 304. 
 
 ^ Bloss V. Plymale, 3 W. Va. 393. ' Chamberlin v. Murphy, 41 Vt. 110. 
 
 ^ Silverman v. Foreman, 3 E. D. Smith, 322. 
 
 * In Silverman v. Foreman, mfro^ which was an action for assault and bat- 
 tery, the main ground upon which a reversal was sought, on appeal, was, that 
 after the plaintiff had rested the case . upon the evidence of his witnesses, who 
 testified to the blow, and after the defendant had called and examined witnesses 
 to disprove the striking, the court refused to permit the j^laintiff to call witnesses 
 to prove that the defendant had admitted that he struck the plaintiff. It was 
 held that in this there was no error. The court said: " Counsel misapprehend, 
 I think, the meaning of the term rebutting evidence in such a case. It means 
 not merely evidence which contradicts the defendant's witnesses, and corrobo-
 
 §S 108-110 DAMAGES. 101 
 
 § 108. If au objection on account of variance between 
 tlie declaration and the proof be not taken at the trial, it will 
 be considered as waived.^ A party is at liberty, if he please, 
 to Avaive objection to irrelevant testimony, when offered by 
 Ms adversary, from the mouth of one witness, and to object 
 to evidence of the same facts when offered from another 
 source. If irrelevant, it is to be excluded by the court, 
 when seasonably objected to, although like testimony may 
 have been received because not objected to.^ 
 
 § 109, When there is any evidence, however slight, tend- 
 ing to establish a material fact, the sufficiency of the evi- 
 dence to establish the fact is for the jury. But if there be 
 no evidence tending to prove such fact, it is the duty of the 
 court to instruct the jury to find for the defendant. And 
 where the alleged facts do not in law amount to a trespass, the 
 court should, on the defendant's motion, so instruct the jury,^ 
 
 20. Damages. 
 
 § 110. As the law presumes damage from every trespass, 
 an instruction to the jury, that if no damage was done, they 
 may find for the defendant, is error.* An officer in levying 
 upon machinery in a mill, in order to detach it fi*om the 
 bands which united it with the shafting, the bands not be- 
 longing to the owner of the machinery, cut instead of untying 
 the thongs by which the bands were laced together. In an 
 action of trespass against the officer, the judge charged the 
 jury, that if they found that the thongs were old, worn out, 
 
 rates those of the plaintiff, but evidence in denial of some affirmative case or 
 fact which the defendant has endeavored to prove. The plaintiff was strictly 
 bound to prove the allegations in liis conii)laint, and give so much testimony in 
 support of those allegations, that as to them he was willing to trust his case 
 upon the proofs given. The defendant then took the burden of rebutting that 
 proof, and unless some reason was assigned for deviating from the rule, the 
 court below rightly exercised their discretion in not permitting the plaintiff to 
 open his case again, for the purpose of accumulating testimony to the very point 
 to wliich he had already examined such witnesses as he thought proper." 
 
 ' McConihe v. Sawyer, 12 N. Hamp. 396 ; Chandler v. Walker, 1 Fost. 282. 
 
 " Dole V. Erskine, 37 N. Hamp. 316. 
 
 » Crookshank v. Kellogg, 8 Blackf. 256. 
 
 * Atwood V. Fricot, 17 Cal. 37.
 
 102 TRESPASS AS A REMEDY. §§ 111, 112. 
 
 and nearly worthless, unless the defendant cut them wantonly, 
 he ouglit not to be held liable for it ; and that as the action 
 appeared to be brought for the purpose of trying the de- 
 fendant's right to enter the mill, and to take the machinery, 
 lie would not advise them to decide the case on some triilinoj 
 damage in the above particulars, provided they found that 
 the officer acted in good faith. It was held tliat the foregoing 
 instructions were erroneous, the damage done to the thongs 
 though small, being still susceptible of estimation.^ 
 
 § 111. For an involuntary trespass, or a trespass com- 
 mitted under an honest mistake without intent to injure, the 
 damages should be confined strictly to compensation for the 
 injury sustained by the plaintift? But whether tlie de- 
 fendant contemplated or not the actual result, he must be 
 held to have intended all the damages which legitimately 
 resulted from his illegal act ; and in estimating the amount 
 of such damages, all the particulars w^herein the plaintifl:' is 
 aggrieved, may be considered, whether of pecuniary loss, or 
 pain, or insult, or inconvenience.^ If the extent of the 
 injury can be estimated in money, the plaintiff is entitled to 
 recover for the whole damage, without regard to extenuating 
 circumstances. Where however by his own act, he wantonly 
 brings an injury on himself, and the jury refuse to find for 
 him to the extent of his actual loss, a new trial will not be 
 granted.* 
 
 § 112. When the cause of action is not continuing, the 
 prospective, as well as the present injury, may be taken into 
 account, in estimating the damages. But the future injury 
 must be the necessary and natural result of the wrong done, 
 and not the consequence of any further wrongful act giving 
 rise to a fresh cause of action.^ 
 
 ' Fullam V. Stearns, 30 Vt. 443. 
 
 = Allison V. Chandler, 11 Mich. 542; Dibble v. Morris, 36 Conn. 416; 
 Beecher v. Derby Bridge & Ferry Co. 24 lb. 491. 
 ° Allison \. Chandler, n/pra ; ante, §§ 14, 16, 
 * Henderson v. Syles, 2 Hill, S. C. 504. 
 ' Richardson v. Mellish, 2 Bing. 240; Fetter v. Beal, 1 Ld. Raym. 839; s.
 
 §§ 113-115. DAMAGES. 103 
 
 § 113. The plaintiff may prove special damages when 
 they are consequences of the act committed, or when the 
 trespass causing the special damages, is a part of the entire 
 transaction of which the principal trespass was the com- 
 mencement.-^ Where special damages are not alleged in the 
 declaration, the plaintiff' can only prove such damages as are 
 the necessary as well as proximate result, of the act com- 
 plained of ; — but where they are alleged, they may be proved 
 so far as they are the proximate, though not the necessary 
 result.^ 
 
 § 114. In assessing damages, the direct and immediate 
 consequences of the injurious act are to be regarded, and not 
 remote, speculative and contingent consequences which the 
 party injured might easily have avoided by his own act. 
 Suppose a man should enter his neighbor's field unlawfully 
 and leave the gate open; if before the owner know 3 it, cattle 
 enter and destroy the crop, the trespasser is responsible. 
 But if the owner sees the gate open, and j^asses it frequently, 
 and wilfully and obstinately, or through gross negligence, 
 leaves it open all summer, and cattle get in, it is his own 
 folly. So, if one throw a stone and break a window, the 
 cost of repairing the window is the ordinary measure of 
 damao-e. But if the owner suffers the window to remain 
 without being repaired, a great length of time, after notice 
 of the fact, and his furniture, or pictures, or other valuable 
 articles sustain damage, or the rain beats in and causes the 
 window to decay, this damage would be too remote.'^ * 
 
 § 115. The damages are not confined to the mere pecun- 
 iary loss sustained by the plaintiff. For a wilful trespass. 
 
 c. 1 Salk. 11; Caldwell v. Murphv, 1 Duer, 233; aff'cl 11 N. Y. 416; Blunt v. 
 McCormick, 3 Denio, 283. See Plate v. N. Y. Cent. R. R. Co. 37 N. Y. 472 ; 
 ante, § 23 ; post, § 278. 
 
 ' Damron v. Roach, 4 Humph. 134; Snively v. Fahnestock, 18 Md. 391. 
 
 = 1 Chit. PI. Gth eci. 441 ; 2 Greenlf. Ev. § 256; Dickinson v. Boyle, 17 Pick. 
 78; Brown v. Cummings, 7 Allen, 507. 
 
 ^ Loker v. Damon, 17 Pick. 284. 
 
 * The jury cannot lawfully allow interest on damages assessed by them 
 (Jean v. Sandiford, 39 Ala. 317;.
 
 104 TRESPASS AS A REMEDY. § 115. 
 
 or a trespass committed in reckless or wanton disregard of 
 another's rights, or accomj^anied l)y circumstances of cruelty 
 or oppression, or other j^articulars showing the existence of 
 malice, or a corrupt motive, the jury may, and ought, not only 
 to give compensation for the injury, but also further damages 
 in view of the aggravated character which the trespass then 
 assumes, usually called smart money, or exemplary damages.^ * 
 The expenses of the suit, which the jury are sometimes ad- 
 vised they may take into consideration in cases of wanton, 
 malicious, and culpable injuries, are not in fact strictly re- 
 coverable by way of damages. They are only to be consid- 
 ered as a reasonable ground for increasing the damages in 
 
 1 Tillotson Y. Cheethara, 3 Johns. 56: Hoyt v. Gelston. 13 H). 141; Wort v. 
 Jenkins, 14 lb. 352 ; Brizsee v. Maybee, 21 Wend. 144 ; Tifft v. Culver, 3 Hill, 
 180; Jay v. Almy. 1 Woodbury & Minot, 262; Amer v. Longstreth, 10 Barr, 
 145; Wilkins v. Gilmore, 2 Humph. 140; Duncan v. Stalcup, 1 Dev. & Bat. 440; 
 Mitchell V. Billinesley, 17 Ala. 391; Churchill v. Watson. 5 Dav, 140; Ously v. 
 Hardin, 23 111. 40^:3; Ives v. Humphreys, 1 E. D. Smith, 196; Dibble v. Morris, 
 26 Conn. 416; Linsley v. Bushuell, 15 lb. 236; Huntley v. Bacon, lb. 267; Lane 
 v. Wilcox, 55 Barb. 615; St. Peters Church v. Beach, 26 Conn. 355; Hawk v. 
 Eidgway, 33 111. 473; post, § 281. 
 
 * While it may be conceded that there seems to be a want of legal force in 
 the idea of compensation beyond the injury, by way of punishment for the evil 
 motives of the tresjjasser, yet the law is well settled that it may be given. There 
 are many things constituting ])roperty to an owner, the value of which to any 
 one else, would be inappreciable ; such, for instance, as a portrait, the mere ])e- 
 cuniary worth of which in damages would not afibrd the owner an adequate 
 compensation for its destruction (see ]S"agle v. Mullison, 34 Penn. St. R. 48j. 
 
 "There are very respectable authorities against the right of recovery, in tres- 
 pass, of anything more than compensation to the plaintiff for the actual loss or 
 damage he has suffered ; and these authorities exclude all evidence of the inten- 
 tention, motive, and character of the defendant's offense, as immaterial. Other 
 nuthorities, while they disclaim the right of jurors in a civil suit to give dam- 
 ages by way of punishment or example, because these belong to the government 
 as a fine, instead of to the party injured as damages, still hold that the malice, 
 wantonness and wilful cruelty of the defendant's act, are material, on the ground 
 that the injury to the plaintiff is greater if he is subjected to the insult, indig- 
 nity, and oppression of a wilful, premeditated, and unprovoked wrong, than 
 when subjected to a wrong which arose p^r infortunium, from mistaken judg- 
 ment, or even in the heat of natural anger. Still other authorities insist that the 
 jury may allow damages by way of punishment, or smart money. This matter 
 of damages in actions ex delicto has been the subject of much discussion and 
 grave difference of opinion among junsts. But it is clear that it is of very 
 little practical consequence to either plaintiff or defendant, if damages are al- 
 lowed according to the wickedness or wilfulness of the act, whether they are al- 
 lowed upon the ground that the wickedness and wilfulness of the act increases 
 or aggravates the injury to the plaintiff, or upon the ground that the defendant 
 should be punished in damages. Such damages, by the great weight of author- 
 ity, and particularly' of modern authority, are legitimate and matter of right in 
 the discretion of the jury" (Steele, J., in Devine v. Rand, 38 Vt. 621).
 
 § 116. DAMAGES. 105 
 
 order that the plaintiff may not be impoverished by the cost 
 of the litigation necessary to obtain justice.-^ * The propriety 
 of their allowance ^YOuld seem questionable when an action 
 is brought for a tort which may also be prosecuted criminally.^ 
 But every circumstance which affected the plaintiff injuriously 
 will properly enter into the question of damages.^ 
 
 § 116. Where a joint action is brought against two for a 
 trespass, and there is a judgment against l>oth, it must be a 
 judgment for joint damages. All the legal consequences of 
 there being a joint judgment must necessarily follow ; one of 
 which is that each is liable for all the damage which the 
 plaintiff" has sustained l^y such trespass, without regard to dif- 
 ferent degrees and shades of guilt.^ f In such an action, there 
 was rendered the following verdict : — " We, the jury, find A. 
 $150, and B. $100 ; all the costs to be paid by A. and B. ; and 
 fifty dollars damage to be paid by A." It was held that the le- 
 gal effect of the verdict was, that the jury found $200 damages 
 against A. ; and that a joint judgment must be entered against 
 both defendants for that amount, and a remittitur he entered 
 as to the $100 found against B.^ In an action of trespass 
 against three, the jury on one count of the declaration found 
 two not guilty, and assessed the damage upon the third at 
 six dollars. On another count, they found the three guilty, 
 and assessed the damage at seven dollars and eighty-three 
 
 ' Williams v. Ives, 25 Conn. 568; Blythe v. Tompkins, 2 Abb. Pr. R. 468; 
 Parsons v. Harper, 16 Gratt. 64 ; post, § 277. 
 
 * See Bradlaugh v. Edwards, 11 C. B. 377. 
 
 ^ Nossaman v. Rickert, 18Ind. 350; Humphries v. Johnson, 20 lb. 190. 
 
 'Eliot V. Allen, 1 C. B. 18; Brown v. Allen, 4 Esp. 158; Hill v. Goodchild, 
 5 Burr. 2790; Clark v. Bales, 15 Ark. 452; Hair v. Little, 28 Ala. 236; Allen v. 
 Craig, 1 Green, 294 ; Layman v. Heudrix, 1 Ala. 212. 
 
 ' Simpson v. Perry, 9 Geo. 508. 
 
 * In Ohio, it has been held that where compensatory damages are allowable 
 the attorney fees and other necessary expenses of the plaintiff may be included in 
 the estimate of damasfes (Cleveland &c. R. R. Co. v. Bartram, 11 Ohio, N. S. 
 457; Roberts v. Mason, 10 Ohio, N. S. 277). 
 
 t In case of several defendants, the damages should be assessed according to 
 the most culpable (Berry v. Fletcher, 1 Dill. 67). But if the court instruct the 
 jury to sever the damages, and assess what each defendant ought to pay, the er- 
 ror cannot be taken advantage of by a defendant, it not being to his prejudice 
 (Crawford v. Morris, 5 Gratt. 90).
 
 lOG TRESPASS AS A REMEDY. § 117. 
 
 cents against eacli. The judge told tlie jury that the dam- 
 ages must be joint, and directed a verdict to be drawn up in 
 proper form, for the aggregate of twenty-three dollars and 
 foi*ty-nine cents on the count on which they found against the 
 three defendants ; and it was held that there was no error.^ * 
 
 § 117. If in an action of trespass against several defend- 
 ants the jury assess several damages, the plaintiff may enter 
 a nolle prosequi as to one of the defendants and take judg- 
 ment against the others ; or he may enter a remittitur as to 
 the lesser damages; or he may take judgment against all the 
 defendants for the greater damages de meUorihus damnis 
 without entering a remittitur. But if in such case the dam- 
 ages are separately assessed, and judgment is taken for the , 
 whole, it w^ill be bad on error, and the judgment must be 
 reversed.^ f 
 
 ' Fuller V. Chamberlain, 11 Mete. 503. 
 
 =^ 2 Tidd's Pr. 805 ; Heydon's Case, 11 Co. 5; Walsli v. Bishop, Cro. Cha. 
 239, 243; Rodney v. Strode, Carth. 19_; Savin v. Long, 1 Wils. 30; HoUey v. 
 Mix, 3 Wend. 350 ; Halsey v. Woodruft", 9 Pick. 555 ; Johns v. Dodsworth, Cro. 
 Car. 192; Crane v. Hummerstone, Cro. Jac. 118; Wallace v. Brown, 5 Fost. 216. 
 
 * Halsey v. Woodruff, 9 Pick. 555, was an action of trespass against A. and 
 B. for entering the plaintitTs close and tearing down his shop. The jury found 
 A. guilty, and assessed damages against him at two dollars; they also found B. 
 guilty, and assessed damages against B. at seventy-five dollars. The plaintiff 
 elected to take judgment against both defendants for seventy-five dollars, and 
 entered a remittitur as to the two dollars. The Supreme Court in holding that 
 judgment was rightly entered, said : — "The i)laintiff here alleges a joint trespass. 
 The defendants plead severally that they are not guilty — of what ? Of the joint 
 trespass; and tliey are found guilty — of what? Of the same joint trespass. 
 Damages are assessed against one at seventy-five dollars. This therefore, by the 
 finding of the jury, is the damage which the plaintifl" has sustained, and the law 
 draws the inference that both are liable for that sum. The inquiry of damages, 
 though made by the same jury, when an issue in fact is tried, is in some degree 
 collateral to the trial of the issue. Where there is judgment on an issue of law 
 alone, there must necessarily be a distinct inquiry of damages, and then the 
 question for the jury is only what damages has the plaintiff sustained by reason 
 of the trespass done, without regard to the particular acts done by either of the 
 defendants. So where the damages are found by the jury, on an issue in fact, 
 the sole inquiry open to them is, what damages the plaintifl" has sustained, not, 
 who ought to pay them ; and therefore their finding of separate damages is be- 
 yond their authority, and merely void. Suppose in an action against two for a 
 joint trespass, one of the defendants demurs to the declaration, and the declara- 
 tion is sustained, and the other pleads the general issue which is found against 
 him and damages are assessed ; judgment would be rendered that botli were 
 guilty, and execution would issue against both for the damages so found by the 
 jury. On principle, as well as authority, the judgment entered in the case before 
 us, was correct. 
 
 t Where in an action of trespass against several who plead jointly, the jury
 
 §§ 118, 119. DAMAGES. 107 
 
 § 118. The jury may find one defendant guilty of a tres- 
 pass at one time, and the other at another ; or one of them 
 guilty of a part of the trespass, and the other of another part ; 
 or some guilty of the whole trespass, and the others guilty of 
 a part only ; in all which cases several damages may be as- 
 sessed.^ * In Proprietors of Kennebec v. Boulton,^ the dec- 
 laration charged three distinct trespasses, but it appeared 
 that each trespass was jointly committed by some of the 
 defendants only. It was held that the damage for each tres- 
 pass was rightly assessed jointly against those of the defend- 
 ants who jointly committed it, and severally for the several 
 trespasses ; and that the plaintiff was entitled to full costs, to 
 be taxed jointly against all the defendants, the costs being 
 entire, and each of the defendants being responsible for them. 
 
 § 119. If actions are separately brought against each of 
 several defendants, they may all be pursued to final judg- 
 ment, and the plaintiff may elect which of the separate 
 judgments he will enforce. But his right of election will not 
 be determined until he sues out execution, or accepts satisfac- 
 tion of one of the judgments. Having, however, received the 
 damages recovered against any one, and his costs recovered 
 against all, he must be content with that, as otherwise he 
 would receive more than one satisfaction for his injury.'^ f 
 
 by mistake assess several damages, the plaintiff may cure the error by entering 
 a nolle prosequi as to all but one, and taking judgment against him (Crawford v. 
 Morris, 5 Gratt. 90). 
 
 'Hillv. Goodchild, 5 Burr. 2790; Mitchell v. Milbank, 6 Term R. 199; 
 Bohun V. Taylor, 6 Cowen, 313; Kempton v. Cook, 4 Pick. 305; Chase v. 
 Lovering, 7 Fost. 295. 
 
 = 4 Mass. 419. 
 
 ' Stone V. Matherly, 3 Monr. 136; Blannv. Crocheron, 20 Ala. 320; Sodousky 
 V. M'Gee, 4 J. J. Marsh. 2G7; Livingston v. Bishop, 1 Joims. 290; Knicker- 
 backer V. Colver, 8 Cowen, 111; Sheldon v. Kibbe, 3 Conn. 214; Ayer v. Ash- 
 mead, 31 Conn. 447. 
 
 * In Kentucky, in an action of trespass, separate damages may be assessed 
 against each defendant, and the judgment several against each defendant for the 
 damages assessed, and joint for costs against all who are found guilty (Henry v. 
 Sennett, 3 B. Mon. 311). 
 
 t This was the rule laid down in Sir John Heydon's Case, 11 Co. 5, wiiere in 
 trespass against several one appeared and pleaded not guilty to a declaration 
 against liim, and afterwards another appeared and jjleaded not guilty to a like 
 declaration, whereupon separate venires issued, and the issues were separately
 
 108 TRESPASS AS A REMEDY. § 120. 
 
 § 120. When in an action against several defendants they 
 are declared against jointly, they are only liable for acts 
 jointly committed, although by agreement judgment by de- 
 fault has been entered a2:ainst all of them.^ But where all 
 of the defendants were defaulted by agreement, and the case 
 was referred to an assessor to ascertain the damages, it was 
 held that all were liable for the entire damage, although the 
 evidence submitted to the assessor showed that one of them 
 was not guilty.^ * 
 
 tried, and separate and different damages assessed, and the court resolved that 
 the plaintiff had his election of the different damages assessed, which should 
 bind all, and that there should be but one execution. The case of Brown v. 
 Wottou, Moore, 762, is opposed to this view. That was an action of trover, and 
 the defendant having pleaded a judgment and execution in behalf of the plaintifl" 
 against one J. S. for the same goods, the plea was held good. The court made 
 a distinction between the recovery of a thing certain and of a thing uncertain ; 
 and they held, in the first case, a recovery and execution against one was no bar 
 against the other without satisfaction, but that where the demand rested only in 
 damages, as in trespass, a recovery and judgment against one was a bar against 
 the other, for the uncertain demand having been made certain l)y the judgment, 
 the plaintiff could not resort to the uncertain demand again. 
 
 ' Folger V. Fields, 12 Cush. 93. 
 
 ° Gardner v. Field, 1 Gray, 151. 
 
 * In this case, the court said: " The only question open before the assessor 
 was the amount of damages. Who were liable for such trespass as might be 
 I^roved under the declaration, was settled by the admission upon the record. 
 The plaintiff was not required to prove the joint liability of the defendants, and 
 the defendants not at liberty to contest it. The trespass proved must be taken 
 to be that declared on; and his joint liability with the other defendants Gibbs 
 had admitted. The rule de meliorihus damnis applies, and Gibbs is liable for the 
 whole damage, not upon the evidence, but upon his admission." 
 
 In case judgment is taken by default, a writ of inquiry must be issued for the 
 summoning of a jury and the assessment of the damages before the sheriff. The 
 plaintiff must then introduce evidence as to the extent of the injury; and it is 
 the duty of the sheriff to instruct the jury as to the grounds and measure of com- 
 pensation (Chitty ilrch. Pr. Inquiry; Penny, in re, 7 Ell. & Bl. 668). 
 
 " In this State " (New Hampshire) " we have no practice like that in England 
 and New York, of issuing a writ of inquiry and summoning a special jury to 
 assess the damages; but where a default has been entered, the court assess the 
 •damages, unless for some special reason they order an inquiry into the damages 
 by the jury. Should that be done, the matter would be committed to one of 
 the regular juries in attendance upon the court, by whom it would be tried in 
 the same manner as common cases, with the exception that the trial and verdict 
 would be confined merely to the amount of damages. And where one defendant 
 is defaulted and another defends, there is not, in point of form, any inquiry of 
 damages against the one defaulted; but in practice the jury do, in efi'ect, assess 
 the damages if they find against the other defendant. Judgment is rendered 
 against both for the amount of damages assessed by the jury. If the one who 
 defends obtains a verdict, then damages are assessed on the default, as if 
 there had been originally but a single defendant (Eastman, J., in Chase v. Lover- 
 ing, 7 Fost. 295, citing Bowman v. Noyes, 12 N. Hamp. 307.)
 
 § 121. COSTS. 10i> 
 
 21. Costs. 
 
 § 121. Where separate actions of trespass are brought 
 against several, the plaintiff may enter up his costs in all of 
 the suits.^ In New York, in an action against two for wilful 
 injury, if the jplaintift^ has a verdict which carries costs against 
 one defendant, and the other is acquitted, the latter is enti- 
 tled to full costs. This results from the fact that the statute 
 gives costs to the defendant acquitted, and prescribes no rule 
 of apportionment. But w^here the defendants appear by the 
 same attorney, and all of them are acquitted, they cannot tax 
 separate bills of costs ; and the rule is the same where, al- 
 though there is a verdict against one defendant, the case is 
 such that they both recover costs.^ In Massachusetts, where 
 in an action of trespass against several, judgment was ren- 
 dered, in the first instance, against all the defendants, but 
 afterward, on review, one of them was acquitted, it was held 
 that he was entitled to costs of travel and attendance for 
 himself and all the witnesses used in the defense, both ou 
 the first trial and review.^ * 
 
 ' Livingston v. Bishop, 1 Johns. 290. 
 
 "" Canfield v. Gaylord, 12 Wend. 236 ; The Albany & West Stockbridge RR. 
 Co. V. Cady, 6 Hill, 265 ; Decker agst. Gardiner, "S K Y. R. 29 ; K Y. Code, 
 § 305 ; post, § 288. 
 
 ^ Durgin v. Leighton, 10 Mass. 56. 
 
 * In New Hampshire, the act of July 2d, 1838, changed the law to some ex- 
 tent respecting costs in actions of review, by providing that, in the event of a 
 reduction of the damages, on review brought by the defendant in the original 
 action, he should recover of the original plaintiff only so much cost as should 
 equal the amount of the reduction of the former verdict. Formerly, in that 
 State, if upon review the damages were reduced at all, although merely nomi- 
 nally, the whole burden of the costs of the action of review was thrown upon 
 tlie original plaintiff. Such was the law upon the- language and legal interpreta- 
 tion of the statutes then in force. Palpable injustice was seen to result from the 
 operation of those statutes, not foreseen or intended by the Legislature. The 
 rule above stated was adopted for the prevention of such results, and as a means 
 of carrying out the real and manifest design of the statutes upon this subject. 
 By the rule, if, upon the evidence before them, the jury should find the sum due 
 to the original plaintiff to be substantially less than the original verdict, they were 
 bound to return a verdict for such lesser sum. It was only in case of a merely 
 nominal and unsubstantial difference of opinion that the jury, upon the review, 
 were entitled to enlarge their yerdict by adopting that returned on the original 
 trial. The effect of the rule was to cast the expenses of the litigation upon the 
 party reviewing in those cases in which substantial justice had been done by the 
 former verdict. In that way exact justice was effected. No provision of law 
 was violated or disregarded — the expenses of the review were awarded only to a
 
 110 TRESPASS AS A REMEDY. §§ 122, 123. 
 
 22. Verdict. 
 
 § 122. Technical nicety is not required in the verdict. A 
 general finding of guilty and judgment " according to the 
 verdict " is sufficient.^ And a verdict that the jury " do not 
 think or believe the defendant guilty " will entitle him to 
 judgment.^ In New Jersey, where, in trespass, the jury on a 
 special issue fouiid a general verdict of guilty, it was held 
 that the court would adapt the verdict to the issue, and that 
 the amendment might be made by the court in banc, with- 
 out the postea being amended by the circuit judge.^ Where 
 there was a new assignment, and a general verdict was found 
 with entire damages, the English Court of Exchequer ap- 
 plied the damages to the issue on the new assignment.* * 
 That the verdict is in the alternative will not be a ground 
 for arrest of judgment.^ If there be two counts, one under a 
 statute, and the other at common law, and a general verdict, 
 the finding will be presumed to be for single damages only.® 
 
 § 123. When the action is against several, the jury, in 
 rendering their verdict, have no right to discriminate as to 
 the enormity of the acts of each.''^ To a count for an expul- 
 
 party whose rights had been substantially prejudiced by the former finding; 
 -while the party moving a review, whose motive, to be inferred from the result, 
 might well be supposed to have been none other than the love of litigation, or 
 the worse one of harassing his antagonist, was compelled to bear the whole 
 burden of the litigation, as he properly and justly should. Upon a retrial of an 
 action of trespass, upon a writ of review, it was held that the jury were cor- 
 rectly instructed that if they found the just sum of damages due to the original 
 plaintifl', upon the proofs and the law before them, to be less than the sum of 
 the former verdict, and the difference between the sum thus found and the former 
 verdict was merely trifling and inconsiderable, it was competent for them to re- 
 turn a verdict for the precise amount of the former one (Carpenter v. Pierce, 13 
 N. Hamp. 403). 
 
 ' Powers V. David, 6 Ala. 9. ^ Pollard v. Otter, 4 Dana, 516. 
 
 ' Phillips V. Kent, 3 Zabr. 155. " Webb v. Allen, 1 Anst. 261. 
 
 " Johnson v. Packer, 1 N. «& M. 1. ' Cooper v. Maupin, 6 Mo. 624. 
 
 ' Carney v. Reed, 11 Ind. 417. 
 
 * Where the declaration alleged that all of the defendants committed the 
 trespass, to which the defendants all pleaded the general issue, and separate 
 pleas of justification, and the verdict was as follows: "We, the jury, find the 
 defendants guilty as the plaintifl" in declaring has alleged, and assess the 
 damages sustained by the plaintiff to three hundred and tifty dollars." It was 
 held that the verdict was bad in not covering the issues (Hanly v. Levin, 5 
 Ohio, 327).
 
 § 124. VERDICT. Ill 
 
 sion, A. pleaded not guilty, and B. and C. paid twenty shil- 
 lings into court, and pleaded that the plaintiff had sustained 
 no greater damages. The jury wished to find a verdict for 
 the plaintiff against A. for twenty shillings beyond the sum 
 paid into court, and a verdict that twenty shillings as to B. 
 and C. was sufficient. It was held that this could not be 
 done ; that if the jury thought that A. was guilty, and that 
 the damages the plaintiff had sustained exceeded twenty 
 shillings, they should find a verdict against all the defend- 
 ants for so much as the plaintiff''s damages exceeded that 
 sum.^ * 
 
 § 124. The rule in assumpsit, that if one defendant is not 
 found liable, the verdict will be in favor of all the defend- 
 ants, does not hold in trespass ; ^ and if, in an action of tres- 
 pass against several, some are acquitted and others found 
 guilty, setting aside the verdict as to the latter, will not 
 avoid it as to the former.'^ Where in an action against four, 
 the case was left with the jury as to all the defendants, a 
 verdict against three assessing the damages was sustained, 
 though it did not find the fourth not guilty."* It is for the 
 jury to determine whether there was a joint or only a single 
 trespass ; ^ and a general verdict against all will be tanta- 
 mount to finding against all.*^ 
 
 ^ Walker v. Woolcott, 8 Car. & P. 353. ^ Gillerson v. Small, 45 Maine, 17. 
 ^ Brown v. Burrus, 8 Mo. 26. ■* Wilderman v. Sandusky, 15 111. 59. 
 
 * Owens V. Derby, 2 Scam. 26. ' Sutliff v. Gilbert. 8 Ham. 405. 
 
 * In an action of trespass, if the facts stated in the declaration are estab- 
 lished under the general issue, the plaintiff is entitled to a verdict, even though 
 the declaration might be bad on demurrer (Allen v. Parkhurst, 10 Vt. 557). 
 
 If a declaration in trespass contain two counts, and the defendant plead to 
 one, and suffer judgment by default on another, and, on trial of the first, the 
 plaintiff establishes one act of trespass which is covered by the second count, 
 he is not entitled to a verdict on the first count (see Compere v. Hicks, 7 T. R. 
 727). 
 
 In an action of trespass against a number of defendants, who severally pleaded 
 not guilty, the jury found a verdict for the plaintifi", omitting to mention two of 
 the defendants. On motion, the verdict was set aside as not conforming to the 
 issue (Kilbourn v. Waterous, Kirby, 424). 
 
 In trespass against several defendants, and a justification, if a verdict is 
 taken against all on the plea of not guilty, and the period during which a joint 
 trespass is proved is covered by the justification, 'the defendants are entitled to 
 a verdict (Feltham v. Cartwright, 3 Jur. 606).
 
 112 TRESPASS AS A REMEDY. §§ 125-128^ 
 
 § 125. The application to a judge in the course of a cause 
 to direct a verdict for one or more of several defendants in 
 trespass, is strictly to his discretion ; and that discretion is 
 to be regulated not merely by the fact, that at the close of 
 the plaintiff's case no evidence aj^pears to affect them, but 
 by tbe probabilities, whether any such will arise before the 
 whole evidence in the cause closes.^ But it will be error in 
 the court to instruct the jury, on the motion of the plaintiff, 
 to acquit one of several defendants.^ 
 
 § 126. That the judge asked the jury the ground of their 
 verdict, is not matter of exception. It is within his discre- 
 tion to inquire of them upon what facts their verdict is 
 based, for the purjoose of correctly stating the questions of 
 law, if any should arise in the case ; or in order to terminate 
 the case, if the particular facts found are conclusive as to the 
 matters in issue between the parties.^ 
 
 § 127. When the jury come to the bar to deliver their 
 verdict, all or any of them have a right to dissent from a 
 verdict to which they had previously agreed ; and they may 
 change their mind and disagree to their verdict after they 
 have pronounced it in open court, before it is received and 
 entered on the minutes.'* 
 
 § 128. It is the absolute right of a party to have the jury 
 polled on their bringing in their verdict, w^hether it be sealed 
 or oral, unless waived by him.^ The object of polling a jury 
 is to ascertain if the verdict which has just been presented 
 or announced by their foreman, is their verdict, or in other 
 words, if they still agree to it ; not to ask them what their 
 verdict means, nor to question them as to their intention in 
 finding it. The clerk, as he calls over the list of jurors, asks 
 
 ' Sowell V. Champion, 2 Nev. & P. 627; 6 Ad. & E. 407. 
 
 ^ Gearheart v. Smallwood, 5 Mo. 452. ^ Spoor v. Spooner, 12 Mete. 281. 
 
 * Eoot V. Sherwood, 6 Johns. 68. 
 
 * The expression in Blackley v. Sheldon, 7 Johns. 32, " if the court please," 
 would seem to imply that the polling of the jury was in the discretion of the 
 court. But in Fox v. Smith, 3 Cowen, 23, and .Jackson ez clem. Fink v. Hawks, 
 2 Wend. 619, it was held otherwise.
 
 § 129. AMENDMENT AFTER VERDICT. 113 
 
 them one by one, or by the poll, the question, " Is this your 
 verdict ?" This question requires but one answer, and still 
 embraces all the legitimate objects of polling a jury. The 
 party has no right to dictate the manner in which a jury 
 shall be polled, or to insist on any other question being put 
 to them than the simple one to ascertain whether they agree 
 to the verdict as presented.^ * 
 
 23. Amendment after verdict. 
 
 § 129. The reasonable rule in relation to amendments 
 after verdict is, that where the verdict is for a sum larger 
 than the ad damnum^ the difficulty may always be remedied 
 by entering a remittitur for the excess ; that the ad damnum 
 may be amended after verdict when it is apparent from the 
 declaration itself that itVas left blank, or too small a sum in- 
 serted, through mistake, or inadvertence only ; that if there 
 has been a full and fair trial on the merits appearing on the 
 face of the declaration, without any knowledge by either 
 ■party of the defect, judgment may be rendered without a 
 new trial ; but that if it does not appear that the defendant 
 had no knowledge of the defect, the amendment may be 
 made, but a new trial must be granted to give him an op- 
 portunity to contest the enlarged demand. That in actions 
 sounding in damages only, where the plaintiff deliberately 
 estimates the injury to himself, and there is only a difference 
 in judgment between the jury and himself as to the nature, 
 extent, and aggravation of the injury, no amendment increas- 
 
 ■ Labar v. KopUn, 4 N. Y. 547. 
 
 * In this case, which was an action for assault and battery against two, on the 
 return of the jury with a general verdict for the plaintiff against both defend- 
 ants, the counsel for the defendants requested the judge that the jury might be 
 polled by asking them if that was their verdict " against each " and both defend- 
 ants, which the judge refused to permit; and it was held by the New York 
 Court of Appeals that such refusal was proper. Mullett, J., in delivering the 
 opinion of the court, said: "In the case under consideration, the verdict an- 
 nounced was clearly against both defendants, and the question proposed to be 
 put to the jury was not only unusual, but seemed to require an explanation of 
 the verdict. It was in substance asking them whether they intended or designed 
 the verdict to be against each and both of the defendants. Such a departure 
 from the established practice can produce no good result, and may lead to much 
 evil." 
 
 Vol. I.— 8
 
 114 TRESPASS AS A REMEDY. §§ 130-32. 
 
 ing the ad daminuTn to cover the verdict will be allowed, 
 and the only remedy for an excessive ^verdict is a remittitur ; 
 yet that the court, in their discretion, may allow the ad dam- 
 num to be increased in any case where after a full and fair 
 trial upon the merits, the defendant claims and insists upon 
 an appeal or review.^ * 
 
 24. Judgment. 
 
 § 130. The judgment cannot be rendered for any more 
 trespasses than are laid in the declaration.^ If there be 
 several issues on not guilty and justifications which do not 
 cover the whole declaration, and a verdict is found for the 
 plaintiff on the first, and for the defendant on the last, the 
 judgment must be for the plaintiff.^ 
 
 § 131. If the jury assess the damages against one defend- 
 ant at a certain sum and against another at a greater sum, 
 the plaintiff may discontinue as to one defendant, and take 
 judgment against the other, each defendant being separately 
 liable for the whole.* But where in an action of trespass 
 against several there is bat a single plea, and joint damages 
 are found, there must be a joint judgment; if the jury give 
 separate damages, the plaintiff will be entitled to judgment 
 airainst all for the laro-est amount of damag^es found ag-ainst 
 any one ; and if the verdict be set aside as to some, no judg- 
 ment can be rendered against the rest,^ 
 
 § 132. If two defendants in trespass suffer judgment by 
 default, and the plaintiff execute writs of inquiry against 
 them separately, and take several damages against them, it is 
 irregular ; and if the plaintiff enter up final judgment with 
 
 ' Taylor v. Jones, 42 N. Harnp. 25. • Gillen v. Wilson, 2 Monr. 11. 
 
 ^ Knight V. Lillo, 2 Wils. 81. * Turner v. McCarthy, 4 E. D. Smith, 247. 
 
 ^ Cunningham v. Dyer, 2 Monr. 50; Sabin v. Long, 1 Wils. 30; Pryce v. 
 Foulkes, 4 Burr. 2418; Halsey v. Woodruff, 9 Pick. 555; Beal agst. Finch, 11 
 N. Y. 128. 
 
 * Where the defendant, justified in trespass under a custom which could uot 
 be supported, and it was found for liini, the court set aside a verdict rendered in 
 his behalf on that issue, and entered a verdict for the plaintiff with nominal 
 damages (Selby v. Robinson, 2 T. R. 758).
 
 §§ 133-35. WRIT OF ERROR. 115 
 
 those several damages against tlie defeuclants, it is erroneous. 
 But the court will permit the plaintiff to set aside his own 
 proceedings before final judgment, on payment of costs.^ 
 
 § 133. Where upon a motion by the defendant for a new 
 trial it appears that since the term of the court in which the 
 verdict was rendered the defendant has died, the rule for the 
 motion having been discharged, judgment may be entered 
 for the plaintiff, as of the term in which the verdict was had.^ 
 
 § 134. The want of jurisdiction in a court rendering a 
 judgment may be shown collaterally whenever any benefit or 
 protection is sought under the judgment, such want of juris- 
 diction making the judgment coram non judice and void.^ 
 But it is a rule to which there is no exception, that M^hen a 
 judgment is rendered by a court or judge having jurisdiction 
 of the subject-matter, its regularity cannot be inquired into 
 in a collateral proceeding ; and this rule applies to judgments 
 of justices of the peace.^* 
 
 25. Writ of error. 
 
 § 135. An erroneous proceeding is valid until reversed 
 on error; and, notwithstanding such reversal, it is regarded 
 as havina: been valid. It still remains a record though re- 
 versed. It may be pleaded as such, and constitutes a justifi- 
 
 ' Mitchell V. Milbank, 6 Term R. 199. 
 
 * 2 Tidd's Pr. 846 ; Tooker v. Duke of Beaufort, 1 Burr. 146 ; Trelawney v. 
 Bishop of Winchester, 1 Burr. 219; Toulmin v. Anderson, 1 Taunt. 385; Mac- 
 kay V. Rhinelander, 1 Johns. Cas. 408; Ryghtmyre v. Durham, 13 Wend. 245; 
 Collins V. Prentice, 15 Conn. 423. 
 
 ^ Bigelow V. Stearns, 19 Johns. 39; Elliott v. Peirsol, 1 Peters, 340 ; Putnam 
 V. Man, 3 Wend. 202. 
 
 ' Billings V. Russell, 23 Penn. St. R. 189. 
 
 * Where an action of trespass was brought before a justice of tlie peace 
 against several, one of whom was not served with process, and judgment ren- 
 dered against those who had been summoned, and upon appeal to the Circuit 
 Court judgment was rendered not only against them, but also against the de- 
 fendant not summoned, it was held that as to him the judgment was a nullity 
 (Prichard v. Campbell, 5 Ind. 494). 
 
 Where, on a writ of error on a judgment for the plaintiff, in an action of tres- 
 pass, the judgment was afJirmed, the court declined to allow interest on the 
 judgment, stating that where the cause of action was a tort it was not customary 
 to allow interest (Gelstoa v. Hoyt, 13 Johns. 5G1).
 
 116 TRESPASS AS A REMEDY. § 136^ 
 
 cation for all things done under its authority previous to the 
 reversal.^ An erroneous instruction may be revised upon 
 exceptions, although not specifically objected to before ver- 
 dict, when the instruction obviously extends to the whole 
 grounds of defense, and is not of such a casual or incidental 
 nature that the defendant was in fault for not calling atten- 
 tion to its inaccuracy before.^ A judgment against several 
 may be reversed as to one or more of the defendants, and 
 affirmed as to the others.^ 
 
 26. NeiD trial. 
 
 § 136. Where improper evidence is admitted, notwith- 
 standing it is objected to, and the evidence is not noticed by 
 counsel on either side in addressing the jury, or by the court 
 in instructing them, as the jury have the right to regard it 
 as legal and material, and it is impossible to know that it 
 had no effect upon their verdict, its admission is ground for 
 a new trial.* But where evidence is given solely to prove a 
 fact which, upon examination, is found not to be material^ 
 and it has no tendency to influence the minds of the jury 
 upon other points, the verdict ought not to be set aside, 
 tbougb such evidence was not legally competent.^ * 
 
 ' Blanchard v. Goss, 2 N. Hamp. 493; Gorrill v. Whittier, 3 lb. 265; Smith 
 V. Knowlton, 11 lb. 191 ; Morse v. Presby, 25 lb. 303; Gay v. Smith, 38 lb. 171. 
 
 ' Esty V. Wilmot, 15 Gray, 168. 
 
 ' Van Slyck v. Snell, 6 Lansini^, 299. But see Whitmore v. Delano, 6 N. 
 Hamp. 543, and Farrell v. Calkins, 10 Barb. 348. 
 
 * Brown v. Cummings, 7 Allen, 507. 
 
 ' Buddington v. Shearer, 22 Pick. 427. 
 
 * Where, in an action of trespass against two, one is acquitted and the other 
 found guilty, a new trial will not be granted, in order that the one convicted 
 may have the other as a witness (Sawyer v. Merrill, 10 Pick. 16). By the court: 
 "On general principles, we doubt whether, as a matter of policy and convenience, 
 an application like this ought be granted. The petitioner would put it on the 
 ground of newly discovered evidence, but that is incorrect. It is the case of an 
 incompetent witness having become competent. To grant the petition would be 
 to make every case of a witness' becoming competent, a ground for a new trial. 
 But a decisive reason against granting this application is, that, upon a new trial, 
 the petitioner could not avail himself of the testimony in question. If the ver- 
 dict is set aside, the case must come to trial just as it did before against both of 
 the defendants, and Bryant would be put on his trial again, after having been 
 acquitted." 
 
 In Leroux's case, cited 6 T. R. 625, 626, where in an action of trespass against
 
 §§ 137, 138. NEW TRIAL. 117 
 
 § 137. A verdict for tlie defendant, though contrary to 
 evidence, will not be set aside if the plaintiff was only en- 
 titled to nominal damages.^ In Burton v. Thompson,^ in 
 which a new trial was denied, although it was admitted that 
 the verdict was in direct opposition to the proof. Lord Mans- 
 field remarked that it did not follow, by necessary conse- 
 quence, that there must be a new trial granted in all cases 
 whatever, where the verdict was contrary to evidence, where 
 there was no real damage and the injury trivial And, 
 in Cady v. Fairchild,'^ which was a case similar in its nature, 
 and presenting the same question, the Supreme Court of New 
 York said : " This is strictly a verdict contrary to evidence, 
 but as no more than nominal damages ought to have been 
 given, no material injustice has been done ; and we ought to 
 apply the rule which has been settled in regard to new 
 trials." 
 
 S 138. In actions of tort, the damao-es must be excessive 
 and outrageous to Avarrant a new trial on that ground. 
 Where printer's boys, who bad been unlawfully imprisoned 
 for six hours, brought their several actions, and the jury gave 
 each of them 300^. damages, the court refused to disturb the 
 verdict, although it was proved that each of the plaintiffs 
 had been generously fed during their imprisonment. Pratt, 
 C. J., forcibly expressed the principle governing this and 
 similar cases thus: "If the jury had been confined by theii* 
 oath to consider the mere personal injury only, perhaps 201. 
 damages would have been thought sufficient. But the small 
 injury done to the plaintiffs, or the inconsiderahleness of 
 their station and rank in life, did not appear to the jury in 
 that striking light in which the great point of law touching 
 the liberty of the subject did." ^ 
 
 three, two were acquitted and one convicted, a new trial was granted, but it was 
 done witli the consent of those who were acquitted. 
 
 ' Stephens v. Wider, 32 N. Y. R. 351. 
 
 ' 2 Burr. 664. ' 18 Johns. 129. 
 
 .' Iluckle V. Money, 2 Wils. 205; Williams v. Currie, 1 C. B. 848; Fabrigas 
 V. Mostyn, 2W. Bl. 929; Allen v. Craig, 1 Green, 294.
 
 118 TRESPASS AS A REMEDY. §§ 139, 140. 
 
 § 139. Before tlie court can set a verdict aside merely 
 for excess of damages, it ought to be able to ascertain some 
 rule by which the damages are to be measured, and to which 
 the facts may be applied. When the damages depend in 
 any wise upon calculation, the court have some criterion by 
 which it is enabled to correct any mistake of the jury. 
 But where the court has no such light to guide it, the dam- 
 ages depending upon mere sentiment and opinion, it would 
 be very dangerous for it to interfere.^ " I should be sorry 
 to say," remarked Lord Mansfield, " that in cases of personal 
 torts, no new trial should ever be granted for damages which 
 manifestly show the jury to have been actuated by passion, 
 partiality, or prejudice. But it is not to be done without 
 very strong grounds indeed, and such as carry internal evi- 
 dence of intemperance in the minds of the jury. I always 
 have felt that it is extremely difficult to interfere, and say 
 when damages are too large. You may take twenty juries, 
 and every one of them will differ from 2,000^. down to 200^.. 
 Nevertheless, it is now well acknowledged in all the courts 
 of Westminster Hall, that if the damages clearly are too large, 
 the courts will send the iuquiiy to another jury. Where they 
 interfere, they always go into all the circumstances, put 
 themselves in the situation of the plaintiff and defendant, 
 and examine closely into all their conduct." ^ 
 
 § 140. Where it appears that a person against whom 
 excessive damages have been recovered, acted in the dis- 
 charge of some duty, or in the hona fide exercise of some 
 power or authority which he supposed he possessed, and 
 meant to act right, but, by mistake, did wrong, a new trial 
 will be granted.^ So, on the other hand, a new trial will be 
 granted where the plaintiff does not come into court with 
 clean hands, and the circumstance has been overlooked by 
 the jury, and excessive damages have been given.^ A judg- 
 
 ' Duberley v. Gunning, 4 Term R. G51. 
 
 ' Gilbert v. Bartenshaw, Cowp. 230; Lofft, 771 ; Britton v. South Wales R. R. 
 Co. 27 L. J. Exch. 355. 
 
 ' Eliot V. Allen, 1 C. B. 18. " Duberley v. Gunning, mpra.
 
 § 141. NEW TRIAL. 119 
 
 ment based on the allowance of interest on the damages as- 
 sessed by the jury, will be eorrected by the appellate court 
 as a clerical error.^ 
 
 § 141. Although a new trial will sometimes be granted 
 in actions ex delicto for smallness of damages, yet this will 
 not be done when there is no standard for estimating the 
 damages, and the court are not able to lay down any rule 
 for the guidance of the jury.'^ 
 
 ' Jean v. Sandiforcl, 39 Ala. 317. 
 
 = Stafford's Case, cited 4 Term R. 655.
 
 BOOK II. 
 
 TEESPASS TO THE PERSON. 
 
 CHAPTEE I. 
 
 ASSAULT AND BATTERY. 
 
 1. Meaning of assault. 
 
 2. Battery defined. 
 
 3. When accident will excuse. 
 
 4. Self-defense. 
 
 5. Defense of property. 
 
 6. Retaking property. 
 
 7. Right of owner or occupier of premises to eject persons therefrom, 
 
 8. Right of innkeeper to exclude or expel persons. 
 
 9. Expulsion from religious meeting. 
 
 10. Expulsion from place of public amusement. 
 
 11. Forcible removal from public conveyance. 
 
 12. Right of access to railway depot. 
 
 13. Seduction of daughter with violence. 
 
 14. Chastisement of pupil by teacher. 
 
 15. Chastisement of servant by master. 
 
 16. Corporal punishment by master of vessel. 
 
 17. Abuse by keeper of almshouse. 
 
 18. Personal violence by husband upon wife. 
 
 19. Injury from reckless driving. 
 
 20. Resisting arrest. 
 
 21. Aiding or encouraging assault. 
 
 22. Place of trial. 
 
 23. Holding to bail. 
 
 24. Parties to action. 
 
 25. Declaration. 
 
 26. Plea. 
 
 27. Replication. 
 
 28. Right to begin. 
 
 29. Burden of proof. 
 
 30. The proof must correspond with the pleadings. 
 
 31. Proof of time. 
 
 32. Evidence as to possession. 
 
 33. Proof of malice. 
 
 34. Admissions and declarations. 
 
 35. Evidence of provocation. 
 
 36. Proof of mitigating circumstances. 
 
 37. Evidence as to character. 
 
 38. Proof of consequences of wrongful act. 
 
 39. Evidence as to pecuniary condition of party. 
 
 40. Damages in general. 
 
 41. Damages from wounded feelings. 
 
 42. Malicious intent as affecting the damages. 
 
 43. Damages for assault upon child or servant.
 
 § 142. MEANING OF ASSAULT. 121 
 
 44. Damages after conviction for public ofifenae. 
 
 45. Damages accruing after commencement of action. 
 
 46. Inadequate or excessive damages. 
 
 47. Costs. 
 
 48. Verdict. 
 
 1. Meaning of assault. ' 
 
 § 142. An assault is an attempt or offer, against the will 
 of another, to commit some bodily harm, accompanied .by an 
 act which, if not arrested, will result in personal injury.^ * 
 Where a policeman prevented a member of a society from 
 entering the society's room, it was held that, if the policeman 
 was wholly passive, and merely obstructed the entrance, as 
 any inanimate object would, it was not an assault.^ The 
 offense may, however, be committed against a person who is 
 not seen or known to be present. As if one were wantonly 
 to fire a loaded gun, and the ball should pass through a house 
 where people were, it might be an assault on all of them. 
 But proof that A. entered a house with force, having a right 
 to the immediate possession, and removed the windows of a 
 room in which B. was sick in bed, without evidence that A, 
 knew that B. was in the house, will not support an allegation 
 that A. broke and entered the house and committed an as- 
 sault on B. therein.'^ f 
 
 ' Com. Dig. Battery, C ; Bac. Abr. Assault and Battery, A ; 1 East's P. C. 
 406; 3 Blk. Com. 120, n. 3; Christopherson v. Bare, 11 Q. B. 473; Reg. v. Mar- 
 tin, 9 C. & P. 315 ; R. v. Johnson, 34 L. J. M. C. 192; State v. Malcom, 8 Clarke, 
 Iowa, 413; Com. v. Ruggles, 6 Allen, 588. 
 
 » Innes v. Wylie, 1 Car. & K. 357. ' Header v. Stone, 7 Mete. 147. 
 
 * An important object to be attained by the enactment of laws and the insti- 
 tution of civilized society, is security against unlawful assaults. Without such 
 security, society loses most of its value. Peace, order and domestic happiness, 
 more precious than mere forms of government, cannot be enjoyed without the 
 sense of perfect security. We have a right to live in society without being put 
 in fear of personal harm. But it must be a reasonable fear of which we com- 
 plain. 
 
 The Revised Statutes of Maine define an assault and battery thus: " Whoever 
 unlawfully attempts to strike, hit, touch or do any violence to another, however 
 small, in a wanton, wilful, angry or insulting manner, having an intention and 
 existing ability to do some violence to such person, shall be deemed guilty of an 
 assault; and if such intent is carried into effect, he shall be deemed guilty of an 
 assault and battery" (ch. 118, § 28). 
 
 t In an action by a husband and wife for an assault on the wife, the following 
 evidence was held insufficient to sustain the charge : That the defendant, having 
 bought the premises occupied by the plaintiffs, and terminated the tenancy, 
 peaceably entered and requested the plaintiffs to leave and remove their furniture,
 
 122 ASSAULT AND BATTERY. § 143. 
 
 § 143. The following have been held to constitute an as- 
 sault : Raising the fist in a threatening manner ; ^ riding a 
 horse so near another as to endanger him, and create the be- 
 lief in his mind that it is the intention of the person on the 
 horse to ride over, or to beat him ; ^ ordering the plaintiff to 
 leave the defendant's shop, and, upon his refusal, sending for 
 some .men who gather around the plaintiff, tuck up their 
 sleeves and aprons, and threaten to break his neck, if he does 
 not leave ; ^ the advancing of A., in a threatening attitude, 
 with an intention to strike B., so that his blow would have 
 reached B. if he had not been stopped, although, at the par- 
 ticular moment when A. was stopped, he was not near enough 
 for his blow to have taken effect ; ^ holding a gun in a manner 
 indicating an intention, coupled with the ability, to shoot 
 another ; ^ but not holding a cocked pistol by one's side, with- 
 out any attempt to use it, and saying, " I am now ready for 
 you;"® nor when a gun is not held as if about to be fired, 
 and without an intention to fire, although pointed in the 
 direction of the other, and within shooting distance.'^ In an 
 action for an assault, the declaration stated that the defend- 
 ant assaulted the plaintiff, " and also then presented a certain 
 pistol, loaded with gunpowder, ball and shot, at the plaintiff, 
 and threatened and oftered therewith to shoot the plaintiff 
 and blow out his brains," It appeared that the parties, being 
 on board a ship, the defendant (who was the captain) went 
 into his cabin and brought out a pistol, and cocked it, and 
 presented it at the plaintiff's head, saying that, if the plaintiff' 
 was not quiet, he would blow his brains out. It was held 
 
 which they refused to do; that he then broke open an inner door, which she 
 fastened and refused to open, took off the doors and windows on a bleak winter's 
 day, took a bloodhound into the house, made a great disturbance on the premises 
 for several days, and would not allow any food to be taken into the house (Stearns 
 V. Sampson, 59 Maine, 568). 
 
 ' Murray v. Boyne, 42 Mo. 472. 
 
 " The State v. Sims, 3 Strobh. 137 ; Mortin v. Shoppe, 3 Car. & P. 373. 
 
 " Read v. Coker, 22 L. J. C. P. 201 ; 17 Jur. 990. 
 
 * Stephen v. Myers, 4 Car. & P. 349; State v. Vannoy, 65 N. C. 532. 
 
 ' Higginbotham v. State, 23 Texas, 574. ° Warren v. State, 33 Texas, 517. 
 
 ' Woodruff V. Woodruff, 22 Geo. 237 ; Farver v. State, 43 Ala. 354. 
 
 I
 
 § 144. MEANING OF ASSAULT. 123 
 
 that, if the defendant, when he presented the pistol, used 
 words showing that it was not his intention to slioot the 
 plaintiff, this would not constitute an assault ; and that it 
 was incumbent on the plaintiif to substantiate the averment 
 in the declaration that the pistol was loaded with gunpowder, 
 ball and shot ; and that, unless the jury were satisfied that 
 the pistol was loaded, they ought to find for the defendant.^ 
 
 § 144. The last mentioned case can scarcely be deemed a 
 safe or reasonable precedent. The court, doubtless, yielded 
 something to the circumstance that the transaction occurred 
 on ship board, where much latitude of conduct on the part of 
 the officers is allowed for the preservation of necessary dis- 
 cipline.* It has been held that, if a person presents an un- 
 loaded pistol at another, threatens to shoot, and finally lowers 
 the pistol, it is an assault ; and that the fact that it was not 
 loaded will not excuse him, without also proving that the 
 other person knew that it was not loaded.^ In Beach v. Han- 
 cock,^ it appeared that the plaintiff and defendant, being en- 
 gaged in a quarrel, the defendant stepped aside and procured 
 a gun, which he aimed at the plaintiff, in an excited and 
 threatening manner. There was proof that the defendant 
 snapped the gun twice at the plaintiff; that the plaintiff did 
 not know whether the gun was loaded or not ; and that the 
 gun was not loaded. The following instruction, given in the 
 court below, was held correct : That " the pointing of a gun, 
 in an angry and threatening manner," at a person three or four 
 rods distant, who was ignorant whether the gun was loaded 
 or not, was an assault, tliough it should appear that the gun 
 was not loaded; and that, whether or not the gun was snap- 
 ped, made no difference. Where several persons followed 
 another with a gun, and, by threats and insults, put him in 
 bodily fear, it was held that they were guilty of an assault 
 
 » Blake v. Barnard, 9 Car. & P. G26. See jwst, § 204. 
 
 = State V. Cherry, 11 Ired. 475. = 7 Fost. 323. 
 
 * In Blake v. Barnard, supra, the plaintiflf who was a seaman, had been 
 guiltj' of noisy and mutinous conduct. Instructing the jury to decide what is an 
 assault, is error (Handy v. Johnson, 5 Md. 450),
 
 124 ASSAULT AND BATTERY. §§ 145-47. 
 
 upon him, altliougli they did not approach him nearer than 
 seventy-five yards, and did not point the gun at him.^ 
 
 § 145. Abusive language alone, cannot constitute an 
 assault. But threatening words accompained by an advance 
 in a threatening attitude may do so.^ And on the other 
 hand, words sometimes serve to explain a person's intent so 
 as to prevent what would otherwise be deemed an assault 
 from amounting to such an offense ; as where a man partly 
 drew a sword from its scabbard, and in a threatening posture 
 said, '' if it were not that it is assize time,, I would run you 
 through the body ; " this was held not to be an assault, the 
 words explaining that the party did not mean any immediate 
 injury.^ ^ 
 
 2. Battery defined. 
 
 § 146. A battery is the wilful or careless touching the 
 person of another by the aggressor, or by some substance 
 put in motion by him.'* Every such touching is actionable, 
 unless it can be justified on the ground of self-defense, or 
 in defense of one's property, or in obedience to some legal 
 warrant of authority, or as the result of inevitable accident.^ 
 
 § 147. Placing the open hand upon another's breast, and 
 pushing him back, constitutes a battery.^ Where a person. 
 
 ' State V. Rawles, 65 N. C. 334. 
 
 » Keyea v. Devlin, 3 E. D. Smith, 518; Shorter v. The People, 2 Comst. 193; 
 Stephen v. Myers, 4 C. & P. 349 ; ante, § 3 ; post, § 259. 
 
 ' 3 Bui. N. P. 15; Vin. Abr. Trespass, A; 3 Blk. Com. 120; n. 3; Bac. Abr. 
 Assault & Battery, B ; 1 East's P. C. 400 ; Com. v. Ruggles, 6 Allen, 588. 
 
 * Ibid. 
 
 " Griffin v. Coleman, 28 L. J. Exch. 134; 4 H. & N. 265; Wright v. Court, 
 4B. &C. 596. 
 
 ' State V. Baker, 65 N. C. 322. 
 
 * A criminal conviction for an assault, cannot be upheld where no battery 
 has been committed, and none attempted, intended, or threatened, by the party 
 accused. It is indispensal)le to the oftense that violence to the person be either 
 offered, menaced or designed (The People v. Bransby, 32 N. Y. R. 525, per Porter, 
 J., citing, Rosinski's Case, 1 Moody's Cr. Cas. 19; Nichol's Case, Russell & Rvan, 
 130; Regina v. Case, 1 Eng. L. & Eq. R. 544; Jackson's Case, Russ. & Ry. 487; 
 Saunder's Case, 8 C. «& P. 265; Bank's Case, 34 Eng. Com. L. 531; Meredith's 
 Case, 34 Eng. Com. L. 539; Martin's Case, 38 Eng. Com. L. 85; The Queen v. 
 Read, 13 London Jurist, 68; The People v. Hays, 1 Hill, 351).
 
 § 148. BATTERY DEFINED. 125 
 
 on a charge of larceny, was taken outside of the town by those 
 having charge of him, and one of them, putting his hand 
 upon the person's shoulder, and, showing him a rope, told 
 him he must confess the larceny, it was held that they were 
 guilty of an aggravated trespass.^ It is a battery for an of- 
 ficer to handcuff a prisoner previous to his conviction, when 
 there is no attempt to escape, nor any reasonable ground to 
 fear a rescue ; ^ or for parish officers to cut off the hair of a 
 pauper in the poorhouse by force, and against the will of such 
 pauper.^ Again, if one, in trying to pass through a crowd, 
 rudely and violently push against another, it will constitute 
 a battery.* So, likewise, if one of two persons who are fight- 
 ing, unintentionally strike a third, the absence of intention 
 can only be urged in mitigation of damages,^ unless such third 
 person brought the injury upon himself by officiously and 
 improperly intruding himself in the way of danger.^ The 
 same may be said where a person drives against and violently 
 upsets another in his carriage, or knocks him down, or over- 
 turns the chair in which he is seated, although he did not in- 
 tend to do so.''^ And the offense may be committed even with 
 consent : as where two persons fight by agreement, although 
 the injured party said he would exonerate the other ; ^ or where 
 the resistance of a female to sexual intercourse is overcome by 
 brutal violence, and her consent thereto is finally obtained.^ * 
 But if one clap another on the back by way of joke, or in 
 friendship, or touch him to call his attention to something, it 
 is not a battery, unless done in a hostile or insulting manner.^" 
 
 § 148. Where the law has given an authority, it will pro- 
 
 ' Stallings v. Owens, 51 111. 93. " Forde v. Skinner, 4 C. «fe P. 239. 
 
 ' Cole V, Turner, 6 Mod. 149. * James v. Campbell, 5 C. «fc P. 373. 
 
 ' Hojiper V. Reeve, 7 Taunt. 698. ' Cogdell v. Yett, 1 Cold. Tenn, 230. 
 
 ' Bell V. Hausley, 3 Jones, N. C. 131. 
 
 • Stout V. Wren, 1 Hawks, 420; Adams v. Waggoner, 33 Ind. 531. 
 » Dickey v. McDonnell, 41 111. 02. 
 
 '" Williams v. Jones, Hard. 301 ; Wiffin v. Kincard, 3 B. & P. N. R. 472 ; 
 Coward v. Baddelley, 4 H. & N. 481 ; 28 L. J. Exch. 261. 
 
 * But in such case, the sexual intercourse should not be taken into considera- 
 tion, in estimating the damages (Dickey v. McDonnell, supra).
 
 126 ASSAULT AND BATTERY. §§ 149, 150. 
 
 tect persons from tlie abuse of the authority, by leaving the 
 one guilty of the abuse in the same situation as though he 
 had acted without any authority. In Ward's Case^ it was 
 held that a constable who had a warrant of a justice of the 
 peace to search the house of J. S. for stolen goods, and who 
 pulled down the sheet of a bed in which there was a woman, 
 and attempted to search under her night clothes, by this in- 
 decent abuse of his authority became liable as a trespasser. 
 
 3. When accident will excuse. 
 
 § 149. Having heretofore^ defined the term accident, as it 
 is employed in the law, but little need be said on the subject 
 here. We may, however, be permitted to repeat that to con- 
 stitute an accident or casualty, or as the law sometimes terms 
 it, an inevitable accident, it must have been such an occur- 
 rence as the defendant could not have avoided by the kind 
 and degree of care which a prudent and cautious man would 
 have used under the circumstances, A person who should 
 have occasion to discharge a gun on an open and extensive 
 plain, or in a forest, would be required to use less circum- 
 spection and care, than if he were to do the same thing in an 
 inhabited town or city. If a horse, suddenly frightened by 
 a flash of lightning, runs away with his rider, and the latter 
 loses all power and control over the animal, and is unable to 
 guide him, the injuries inflicted by the ungovernable horse, 
 under such circumstances, are not injuries done by the rider, 
 and the latter is, in substance, not gudty of committing 
 them. ® 
 
 § 150. If the act of hitting the plaintiff was unintentional 
 on the part of the defendant, and done in the performance of 
 a lawful act, the defendant will not be responsible unless it 
 was done through the want of the exercise of due care 
 adapted to the exigency of the case. Where in an action for 
 assault and battery, it appeared that the two dogs of the 
 
 ' 4 Clayton, 44. « Ante, §§ 5, 6, 7. 
 
 = Gibbons v. Pepper, 2 Salk. 637 ; 1 Ld. Raym. 38 ; 4 Mod. 405.
 
 § 150. WHEN ACCIDENT WILL EXCUSE. 127 
 
 parties were fighting, and that the defendant, in trying to 
 separate them, accidentally hit the plaintiff in the eye, in- 
 flicting a severe wound, which was the offense charged ; the 
 case involved the inquiry how far, and under what qualifica- 
 tions, the party by whose unconscious act the damage was 
 done was responsible for it. It w^as held that if both plaintiff' 
 and defendant, at the time of the blow, were using ordinary 
 care, or if, at that time, the defendant was using ordinary 
 care and the plaintiff was not, or if at that time both the 
 plaintiff and defendant were not using ordinary care, the 
 plaintiff' could not recover. ^ * Castle v. Duryea, ^ was an ac- 
 tion of trespass against the colonel of a regiment of militia, 
 who, in the course of the evolutions of his regiment at a mili- 
 tary encampment, caused his men to face toward spectators 
 some 350 feet distant, and then gave the order to fire; 
 whereupon the guns, supposed to be loaded only with blank 
 cartridges, were discharged, and the plaintiff and her infant 
 in her arms, were wounded by a musket ball, the former seri- 
 ously, the latter fatally. The following instruction of the 
 judge was held correct : " That the defendant was not respon- 
 sible for the injury complained of, if he exercised the prudent 
 care and diligence demanded by the circumstances ; and that 
 he was not responsible for the negligence of those under his 
 command, unless he made himself a party to the negligence 
 by giving an improper order, or by neglecting some precau- 
 tion which prudence required him to adopt. That the de- 
 
 ' Brown v. Kendall, 6 Cusb. 292. ' 32 Barb. 480; aff'd 2 Keyes, 169. 
 
 * In Brown v. Kendall, supra, the court said: " We can have no doubt that 
 the act of the defendant in attempting to part the fighting dogs, one of which 
 was his own, and for the injurious acts of which he might be responsible, was a 
 lawful and proper act, which he might do by proper and safe means. If then, 
 in doing this act, using due care and all proper precautions necessary to the exi- 
 gency of the case, to avoid hurt to others, in raising his stick for that purpose, 
 he accidentally hit tlie plaintiff in the eye and wounded liim, this was the result 
 of pure accident, or was invohintary and unavoidable, and therefore the action 
 would not lie. Or if the defendant was chargeable with some negligence, and 
 if the plaintiff was also chargeable with negligence, we think the plaintiff cannot 
 recover without showing that the damage was caused wholly by the act of the 
 defendant, and that the plaintiff's own negligence did not contribute, as an effi- 
 cient cause, to produce it" (citing 2 Greenlf. Ev. §§ 85 to 92; Wakeman v. Rob- 
 inson, 1 Bing. 213; Powers v. Russell, 13 Pick. 69, 76; Tourtellot v. Rosebrook, 
 11 Mete. 460).
 
 128 ASSAULT AND BATERRY. §§151,152. 
 
 gree of care required to avoid an injury was in proportion ta 
 the seriousness and magnitude of the consequences which 
 would probably ensue from the want of it. That gunpowder 
 and firearms were powerful agents, and it was proper for the 
 jury to consider whether the person using them under the 
 circumstances detailed in the e\ddence, was not bound to 
 exercise a high degree of care and diligence to prevent injury. 
 A verdict was rendered in favor of the plaintiff for $1,500, 
 and the appellate court declined to disturb it. 
 
 § 151. The burden of proof in cases of apparent accident 
 is on the plaintiff to show either that the intention was un- 
 lawful or that the defendant was in fault. Where, therefore, 
 A. threw a stick which struck the plaintiff, but it did not 
 appear for what purpose the stick was thrown, it was held 
 that it was fair to conclude that the stick was thrown for a 
 proper purpose, and that the striking of the plaintiff was an 
 accident. -^ 
 
 4. Self-defence. 
 
 § 152. Self-defense has been justly characterized as the 
 primary law of nature, and is held to excuse not only 
 breaches of the peace, but even homicide.* But the resist- 
 
 ' Alderson v. Waistell, 1 Car. & K. 358. 
 
 * In State v. Hooker, 17 Vt. 658, -which was an indictment for an assault and 
 battery upon a sheriff, it appeared that the sherifl'went to the respondent's house 
 with legal process for the purpose of serving it upon him, and found the outer 
 door fastened, and that not succeeding in having the door opened, he effected 
 an entrance by bursting off the latch. At the trial the judge instructed the jury 
 that the sheriff had no right to break open the outer door, and that for so doing 
 he was a trespasser; but that if, after he had entered the house, he proceeded to 
 arrest the respondent, the latter had no right to resist him. The Supreme Court, 
 in granting a new trial for misdirection, said: "It is a familiar maxim of the 
 law, that ' a man's house is his castle,' and that he has a right to defend it. 
 How far he may carry his defense, and within what bounds it must be restrained, 
 is the subject of inquiry. A man has a right to defend himself against an un- 
 lawful aggression to an extent that shall make his defense effective, without 
 regard to consequences. Chitty, in his treatise upon criminal law, lays down 
 the doctrine in its broadest sense, that the breaking the outer door of a dwelling- 
 house upon civil process is unjustifiable. The inquiry, therefore, is whether, 
 having thus done what is unjustifiable, the sheriff may, by the means and aid of 
 this unjustifiable act, proceed to do a lawful act. The officer, when he restrains 
 the debtor of his liberty, justifies the act by the authority of the law, not by any 
 natural right of his own to do so. It then presents this strange anomaly, that 
 an officer who has no authority except what is delegated to him by the law for
 
 § 152. SELF-DEFENSE. 129 
 
 ance to be lawful must not exceed the bounds of mere de- 
 fense and prevention ; and the force employed must be 
 appropriate in kind as well as suitable in degree.^ In an ac- 
 tion for trespass on land, and for assault, battery and wound- 
 ing, the defendants pleaded that the public had a prescriptive 
 right to navigate a stream ; that the plaintiff obstructed it ; 
 
 a specified purpose, can justify an attempt to restrain the liberty of another, 
 when his purpose is aided and accomplished by an unjustifiable act, and a breach 
 of the very law under which he assumes to act. Mr. Chitty makes a distinction 
 between the killing of an officer thus breaking the outer door, and one not an 
 officer. But what shall be the effect of any resistance short of killing, he does 
 not say. There are instances in which an officer may be resisted, which he 
 enumerates, and they are— 1. When the warrant is defective; 2. When it is not 
 enforced by a proper officer; 3. When it is executed out of the jurisdiction; 4. 
 When the wrong person is taken under it. So that by this authority it seems 
 that the person of the officer is not so sacred that all other rights must yield and 
 be postponed to his. It would by this seem, therefore, that in order to throw 
 the shield of the law over an officer so as to make it criminal for another to resist 
 liim in what he is attempting to do, certain requisites are necessary. He must 
 not only be a legal and proper officer, but be must have a good and sufficient 
 precept which he is attempting to execute, and he must be attempting to exe- 
 cute it in a legal way. After the respondent had made the resistance for which 
 he is indicted, he was arrested by the officer. Now, suppose the respondent had 
 instituted proceedings to obtain a discharge from that arrest, what would have 
 been the inquiry, and what ought to have been the judgment? Without answer- 
 ing the question which I have proposed, we can see what has been the inquiry in 
 analogous cases. There are certain times and occasions on which persons are 
 exempted from arrest on civil process, such as witnesses, parties, and jurors in 
 attendance upon court, and members of Parliament, public ambassadors and 
 their servants; and when such are arrested, and even committed on execution, 
 they are discharged from custody; and in some cases it has been held that the 
 court had the power to punish the officer for arresting them. When a man is 
 wrongfully brought into a jurisdiction, and is there lawfully arrested, yet he 
 ought to be discharged, for ' no lawful thing, founded on a wrongful act, can be 
 supported ' (per Lord Holt, in 11 Mod. 51). Where a person was detained with- 
 out a writ, and afterwards, while thus detained, was arrested on a writ, he was 
 discharged (3 H. Bl. 29). All these legal maxims have their correlatives. 
 When A. unlawfully attempts to arrest B., B. may lawfully resist him. What- 
 ever I may lawfully enjoy, I may lawfully defend. In the protection of my own 
 rights, whatever it is unlawful for another to do, it is lawful for me to prevent 
 him from doing. In the present case, then, if it was unlawfid for the officer to 
 break open the house in order to arrest the respondent, it was lawful for the 
 respondent to prevent him from doing it. The breaking and arresting were de- 
 pendent one upon the other, and are not to be discimnected. The breaking was 
 for the purpose cf arresting, and the arresting was consequent upon the break- 
 ing. It would therefore seem to follow that if one was unlawful, the other was 
 equally so" (and see Hooker v. Smith, 19 Vt. 151). 
 
 ■ Mcriarty v. Brooks, 6 C. &. P. 684; Keece v. Tavlor, 4 Nev. & Man. 470; 
 1 ITar. &W. 15; O'Leary v. Rowan. 31 Mo. 117; Scfibner v. Beach, 4 Denio, 
 448; Elliott v. Brown, 2 Wend. 497; Gates v. Lounsbury, 20 Johns. 427; Greg- 
 ory V. Hill, 8 Term 11. 299; Baldwin v. Ilayden, 6 Conn. 453; Curtis v. Carson, 
 2N. Ilamp. 539; 3 BIk. Com. 3; 1 Hawk.' P. C. 130; State v. Davis, 7 Jones, 
 N. C. J^aw R. 52; Shorter v. Ti»e People, 2 N. Y. R. 193; Rogers v. Waite, 44 
 Maine R. 275 ; Cora. v. Clark, 3 Mete. 23 ; Greeulf. Ev. § 95. 
 
 Vol I.— 9
 
 ] 30 ASSAULT AND BATTERY. § 153^ 
 
 tliat while trying to remove the obstruction, the plaintift" 
 assaulted them, and they, in self-defense, necessarily beat and 
 Avouiided him a little, employing only such, force as was 
 necessary to remove the obstruction. The plaintiff having 
 demurred, it was held that the facts set forth in the plea 
 were prima facie a justification of the wounding.-' xVnd 
 where the plaintiff was lying in wait to execute threats of 
 personal violence upon the defendant, and actually gave 
 him a severe blow, it was held that tlie defendant might law- 
 fully pursue and lay hold of him, as Avell to ascertain the 
 assailant as to protect himself against further injury.^ * 
 
 § 153. If a person be attacked in such a way as to justify 
 a reasonable belief that it is made with the design to take 
 his life or inflict great bodily injury, he may lawfully kill, 
 or attempt to kill his assailant, although it subsequently ap- 
 pear that lie was mistaken ; and the question of reasonable 
 belief must be passed upon by the jury. In Morris v. Piatt,* 
 it was proved that the defendant wounded the plaintiff' in 
 two places, by two shots fired fi^om a pistol ; and from the 
 nature of the weapon, and other conceded circumstances, the 
 ^vounds appeared to have been inflicted ^vith a design to 
 take the life of the plaintiff'. The defendant offered to prove 
 that he was attacked by the plaintiff and others, in a manner 
 which indicated a design to take his life — that " he was in 
 great bodily peril, and in danger of losing his life by means 
 of the attack " — and that he fired the pistol to protect his 
 life and save himself from extreme bodily injury. It was 
 held, that if these facts were proved, the defendant was 
 justified in the attempt to take the life of the plaintift? f 
 
 ' Brubaker v. Paul, 7 Dana, 438. = Paige v. Smith, 13 Yt. 251. 
 
 = 32 Conn. 75. ' See posU § 164. 
 
 * A person is not called upon to flee to avoid an assault and battery before he 
 is entitled to recover therefor (Heady v. Wood, 6 Ind. 82). 
 
 t In an action by C. against T. the following charge was held error: — ''If 
 the jury find that C. committed the first assault, yet that T. had used more force 
 than was necessary to defend himself, and in so doing had shot C. when it was 
 not necessary for him so to do to save himself from being harmed by C, then 
 they must find for C. (Taylor v. Clendening, 4 Kansas, 524).
 
 §§ 154, 155. SELF-DEFENSE. 131 
 
 § 151. But the restraining the employment of force to 
 what is necessary to protect the assailed from injury, is, of 
 itself, enjoining upon the assailed to nse no violence, if self- 
 protection can be otherwise had. It is the very imminence of 
 the danger of injury that justifies the counter assault ; and it is 
 therefore a necessary corollary that it is the duty of every 
 citizen to endeavor to avoid the assault which another 
 threatens. The proposition might be stated in stronger 
 terms, viz. : — That an assault cannot be justified as made in 
 self-defense, unless the danger of injury is so manifest and 
 pressing that no other reasonable means of self-protection 
 are immediately available. Human pride may sometimes be 
 wounded by prescribing such a rule of conduct. But a love 
 of peace, respect to good order in society, no less than the 
 teachings of the highest code of morals, forbid that any should 
 lay violent hands upon his neighbor without an endeavor to 
 avoid his assault.-^ Where a woman asked a man on horse- 
 back why he had been talking about her, and threw a stone 
 and stick at him, and he dismounted and hit her on the head 
 with a stick, he was held guilty of assault and battery.^ 
 And where a person struck the horse of another on the head 
 with his hand, causing the horse to step back three or four 
 feet, it was held that this did not justify the owner of the 
 horse in severely beating the other and knocking him down 
 with the butt of his whip.^ '^ 
 
 § 155. An act in necessary self-defense which injures an 
 innocent bystander is justifiable. If, therefore, a lighted fire- 
 
 ' Selw. K P. 25; Keyes v. Devlin, 3 E. D. Smith, 518; Mitchell v. State,-41 
 Geo. 537; Chambers v. Porter, 5 Gold. Tenn. 273; Elliott v. Brown, 2 Wend. 497. 
 
 ' The State v. Gibson, 10 Ired. 214. = Com. v. Ford, 5 Gray, 475. 
 
 * Cockroft, in a scuffle, ran his finger toward Smith's eye, who bit a joint off 
 from Cockroft's finger. The question was, whether this was a proper defense for 
 the defendant in an action for the mayhem. Holt, C. J., said, "That a man 
 ought not, in the case of a small assault, to give a violent or unsuitable return, 
 but in such a case plead what is necessary for a man's defense, and not who 
 struck first; for hitting a man a little blow with a little stick on the shoulder, is 
 not a reason for him to draw a sword and cut and hew the other" (Cockroft v. 
 Smith, 11 Mod. 43). 
 
 Whoever is guilty of a breach of the ])eace, or of doing unnecessary violence 
 to the person of another, although it may be in the assertion of an unquestioned 
 and undoubted right, is liable to be i)rosecuted tlierefor (Williams, Ch. J., in 
 llodgeden v. Hubbard, 18 Vt. 504).
 
 132 ASSAULT AND BATTERY. §155. 
 
 work be thrown into a coacb full of j^assengers, and flung 
 out again in necessary selfdefense, and falls against and 
 burns a bj^stander, or explodes in his face and blinds him, 
 the cul^^able party is he who threw the burning material 
 into the coach, and the person who threw it out is not liable 
 for the damage.^ In the case previously noticed of the 
 lighted squib, ^ which was thrown into a market house, it may 
 be observed that the force which was given to it was spent 
 when it fell upon the standing, and that it was afterward 
 twice 23ut in motion, and in different directions, before it 
 struck the plaintiff and put out his eye. But as the throw- 
 ing of the squib was a mischievous act which was likely to 
 do harm to some one, and as the two men who gave the new 
 impulses to the missile, acted from terror and in self-defense, 
 they were held excused. In Morris v. Piatt, ^ which was an 
 action for an assault in which the defendant pleaded that he 
 acted in selfdefense, the plaintiff' in reply, denied that he 
 was an assailant, and claimed that he was a bystander merely, 
 and requested the court to charge the jury in substance, that 
 if they so found, he was entitled to recover, although they 
 should also find that the defendant was lawfully defending 
 himself against his assailants, and that the injury to the 
 plaintiff was accidental. The request of the plaintiff" em- 
 bodied the unqualified proposition that a man lawfully exer- 
 cising the right of selfdefense, is liable to third persons for 
 any and all unintentional, accidental injurious consequences 
 which may happen to them ; and the court having so charged, 
 it was held error.* 
 
 'DeGrey, C. J., S Wils. 413. 
 
 "" Scott V. Shepherd, 3 W. Blk. 893; ante, § 20. . = 32 Conn. 75. 
 
 * In Morris v. Phitt, siqira, the court said: — "If the defendant had been in 
 the act of firing a pistol at an assailant in lawful self-defense, and a flash of light- 
 ning had blinded him at the instant, and diverted his aim, or an earthquake 
 had shaken him and produced the same result, or if his aim was perfect, but a 
 sudden A-iolent puff of wind had diverted it, or the ball after it ])assed from the 
 pistol, and the ball by reason of the diversion, liad hit the iilaintiff, the acci- 
 dent would have been so effected, in part, by the uncoutrollable and unexpected 
 operations of nature, as to be inevitable or absolutely unavoidable ; and there is 
 no principle or authority which would authorize a recovery by the plaintiff. 
 And in the second place, if while in the act of firing the pistol lawfully at an as ;ail- 
 ant, the defendant was stricken, or the pistol seized or stricken by another assailant,
 
 §§ 150, 157. SELF-DEFENSE. 133 
 
 § 15G. Besides self-protection, the right also includes the 
 defense of those who sustain the relations of husband and 
 wife, j^areut and child, master and servant ; ^ and a person 
 may rightfully use reasonable force to protect a stranger from 
 unlawful violence, and thus prevent a breach of the peace.^ 
 But the force employed in such case, will only be justifiable 
 to the extent that it is necessary for the defense, and only 
 where the person defended was first attacked and was resist- 
 ing his assailant wdien the party interfered.^ 
 
 § 157. The Cj[uestion has sometimes arisen whether' the 
 party first attacked in a personal rencounter, is entitled to an 
 action for assault and battery if he use so much personal 
 violence toward the other party, exceeding the bounds of self- 
 defense, as could not be justified under the plea of son assault 
 demesne^ were he a party defendant in a suit. The negative 
 was held in an early case in New York.* The ground upon 
 which the decision was placed was, that there could not be 
 
 so that its aim was unexpectedly and uncontrollably diverted towards the 
 plaintiff; or if, while in the act of tiring with a correct aim, the assailant sud- 
 denly and unexpectedly stepped aside, and the ball passing over the spot, hit 
 the plaintiff, who till then was invisible, and his presence unknown to the de- 
 fendant; or if the pistol was fired, in other respects, with all the cai'e which the 
 exigencies of the case required, or the circumstances permitted, the accident was, 
 wdiat has been correctly termed ' unavoidable under the circumstances ; ' and 
 whether the defendant should, in such case, be holden liable or not, is the ques- 
 tion we have in hand. For in the third place, if the act of firing the pistol was 
 not lawful, or was an act which the defendant was not required by any necessity 
 or duty to perform, and was attended with possible danger to third persons, 
 which required of him more than ordinary circumspection and care, as if he had 
 been firing at a mark merely; or if the act, though strictly lawful and necessary, 
 was done with wantonness, negligence, or folly, then, although the wounding 
 was unintentional and accidental, it is conceded, and undoubtedly true, that the 
 defendant would be liable. In this case the rule of law claimed by the plaintiff, 
 and given by the court to the jury, authorized them to find a verdict for the 
 plaintift" if they found tiie accident to belong to the second class, and to have 
 been 'unavoidable under the circumstances.' We have seen that if the injury 
 had been conse(juential, and the form of action case, the defendant would not 
 have been liable, and the question returns whether he can and should be holden 
 lialjle because the injury was direct and immediate, and the form of action is 
 trespass. I think not, whether the decision of the question be made upon prin- 
 ciple or governed by authority." 
 
 ■ 3 Blk. Com. 3, 4: Hill v. Rogers,. 3 Clarke, G7; Hathaway v. Rice, 19 Vt. 
 102. 
 
 - Mellen v. Tliompson, 32 Vt. 407. ^ Obier v. Neal, 1 Houston, Del. 449. 
 
 " Elliott V. Brown, 2 Wend. 497. 
 
 * That it was tlie plaintiff's own original assault.
 
 134 ASSAULT AND BATTERY. § 157 
 
 a recovery in cross actions for the same affray, bnt that the 
 party who first recovered might plead that recovery in a 
 suit against himself. In New Hampshire, however, a con- 
 trary view has been taken, the Supreme Court of that State 
 holding, in a comparatively recent case,-^ that cross actions 
 will lie for the same affray by the person assaulted for the 
 attack first made upon him, and by tlie assailant for the ex- 
 cess of force used beyond what was necessary for self-de- 
 fense.'^ 
 
 ' Dole V. Erskine, 3o N. Ilamp. 503. 
 
 * In Dole V. Erskine, siiprcf, the court said : " Up to the time that the excess 
 is used, the party assaulted is in the right. Until he exceeds the bounds of self- 
 defense he has committed no breach of the peace, and done no act for which he 
 is liable, while his assailant, up to that time, is in the wrong, and is liable for 
 his illegal acts. Now can this cause of action which the assailed party has for 
 the injury inflicted upon him, and which may have been severe, be lost by acts of 
 violence subsequently committed by himself ? Can the assault and battery which 
 the assailant himself has committed, be merged in or set ofl' against the excessive 
 force used by the assailed party ? Unless this be so, and the party first com- 
 mencing the assault and inflicting the blows, and thus giving to the other side a 
 cause of action, can have the wrong thus done and the cause of action thus 
 given wiped out by the excessive castigatiou which he receives from the other 
 party, then each party may sustain an action ; the one that is assailed for the 
 assault and battery first committed upon him, and the assailant for the excess of 
 force used upon him beyond what was necessary for self-defense. We think 
 that these are not matters of set-off; that the one cannot be merged in the other; 
 and that each party has been guilty of a wrong for which he has made himself 
 liable to the other. There have, in effect, been two trespasses committed ; the 
 one by the assailant in commencing the assault, and the other by the assailed 
 party in using the excessive force. And upon principle, we do not see why the 
 one can be an answer to the other, any more than an assault committed hj one 
 party on one day, can be set off against one committed by the other party on 
 another day. The only difference would seem to consist in the length of time 
 that has elapsed between the two trespasses. In a case where excessive force is 
 used, the party using it is innocent up to the time that he exceeds the bounds of 
 self-defense. When he uses the excessive force, he then for the first time be- 
 comes a trespasser. And wherein consists the difference, except it be that of 
 time, between a trespass committed by him then, and one committed by him on 
 the same person the day after ? In Elliott v. Brown, it is conceded that both 
 parties may be indicted, and both be criminally punished, notwithstanding it 
 was there held that a civil action can be maintained only against him who has 
 been guilty of the excess. If this be so, and each party can be criminally pun- 
 ished, then each must have been guilty of an assault and battery upon the 
 other; and if thus guilty, why should not a civil action be maintained by each ? 
 It would seem that 'the fact that both are indictable shows that each is' in the 
 wrong as to the other, and that each has a cause of action against the other, and 
 that such cause of action may be successfully prosecuted, unless one is to be set 
 off against the other. That torts are not the subjects of set-oft" is entirely clear. 
 AVe arrive then at the conclusion that the causes of action existing in such cases 
 cannot be set off the one against the other, nor merged the one in the other, 
 but that each party may maintain an action for the injury received; the assailed 
 party fin- the assault first committed upon him, and the assailant for the excess 
 above what was necessary for self-defense. This rule, it appears to us, will do
 
 § 158. DEFENSE OF PROPERTY. 135 
 
 5. Defense of propertij. 
 
 § 158. By the common law, a man may justify a battery 
 of a person who endeavors wrongfulfy to dispossess him of 
 Ms goods or lauds, or the goods of another delivered to him 
 to keep.^ The owner of laud may re]3el by force any forcible 
 attempt to expel him ; and his son, acting under his authority, 
 has the same right.'^ And the lessee of premises has the same 
 right to employ force in maintaining the possession that the 
 owner has.'^ " But the mere suspicion or fear of an encroach- 
 ment will not justify au assault.'^ If a person unnecessarily 
 stop a horse and wagon in the highway, and there hinder the 
 overseer of highways, or the men under him, while repairing 
 such highway, the overseer may use all necessary and proper 
 force to remove him, if he neglects or refuses to pass along 
 after being requested by the overseer to do so.^ In an action 
 for assault and battery at the funeral of a qhild of a Mr. 
 Prince, it appeared that the plaintiff and defendant were 
 hackmen ; that Mr. Prince employed one Potter to superin- 
 tend the funeral arrangements ; that Potter engaged the de- 
 fendant, among others, to attend with his hack; and that a 
 brother of Mr. Prince, without the knowledge of Potter, had 
 engaged the plaintiff to attend the funeral with his carriage. 
 The plaintiff and defendant ])oth attended with their car- 
 
 more justice to the parties and more credit to the hiw than the other; for by it, 
 •the party who has commenced tlie assault, and who has been tlie moving cause 
 of the difficulty, is made to answer in money, instead of having his assault 
 merged in the one which lie has provoked, and which has been inflicted upon 
 him by his antagonist." 
 
 ' 3 Blk. Com. 4; 1 Esp. Dig. 3U; 1 Hawk. P. C. 130; Gates v. Lounsbury, 
 20 Johns. 427; Gregory v. Hill, 8 Term R. 299; Alderson v. Waistell. 1 Car. & 
 K. 358. 
 
 = Tribblc v. Frame, 7 J. J. Marsh. 599, G17. 
 
 ' Corey v. The People, 45 Barb. 262. " McAuley v. State, 3 Iowa, 435. 
 
 '" Bull V. Colton, 22 Barb. 04. 
 
 * Where A. gives B. verlial permission "to dig and carry away ore," and B. 
 assigns the license to C, who enters torcil»ly into the premises of A., the latter 
 being at the time the owner of the freehold, and warning C. not to attempt to 
 enter, C. is a trespasser, and may be resisted by A. with all the force requisite to 
 protect his possession (Riddle v."^ Brown, 20 Ala. 412). 
 
 A person who has a right to go on to premises and make improvements, not 
 interfering with the tenant's farming operations, cannot be forcibly ejected, un- 
 til he actually does so interfere (McAuley v. State, 3 Iowa, 435).
 
 136 ASSAULT AND BATTERY. § 159, 
 
 I'iages, and the alleged assault and battery was committed in 
 a contest between them as to their relative position in the 
 funeral procession. It w^as held that, as Mr. Prince was in 
 the possession of that part of the highway for what was a 
 lawful purpose, he had a right, either personally or through 
 an agent, to direct as to the places in the procession w^hich 
 the carriages engaged by him should occupy, and the drivers,, 
 therefore, had a right to follow those directions ; and if, in 
 conforming or endeavoring to conform to them, they were 
 prevented from doing so, or obstructed by the plaintiif, they 
 had a right to oppose such acts of the plaintiff, or to defend 
 themselves against any injury fi'om him, by as much force as 
 was necessary, in order to enable themselves to occupy the 
 place in the procession assigned to them. That the proper 
 inquiries were : 1st. Whether the defendant was directed by 
 Potter to occupy the place, and was, while occupying or en- 
 deavoring to occupy it, obstructed by the plaintiff'; and 2d. 
 If he was so disturbed, whether he used unnecessary force in 
 obtaining or keeping the place. And a verdict having been 
 found for the defendant in the court below, the Supreme 
 Court refused to disturb it.^ 
 
 § 159. The law does not oblige the owner of goods to 
 stand idly by and see a thief or a trespasser take them from 
 his premises, or limit him to mere verbal remonstrance. 
 He may act promptly ; and whether he may use force or not 
 in the first instance, and what degree of force, depends upon 
 the exigency .of the particular case. The mere taking of the 
 property by the owner, under such circumstances, from the 
 custody of the wrong-doer, without other force or violence, 
 would not constitute an assault and battery. To a count for 
 assaulting the plaintiff', the defendants pleaded that the 
 plaintiff had wrongfully in his possession dead rabbits belong- 
 ing to the Marquis of E., and was about wrongfully and un- 
 lawfully to carry away and convert them to his own use, where- 
 upon the defendants, as the servants of the IMarquis, and by 
 
 ' Goodwin v. Avery, 20 Coun. 58o.
 
 § 160. DEFENSE OF PROPERTY. 137 
 
 his command, requested the plaintiff to refrain from carrying 
 away and converting the rabbits, which he refused to do, 
 whereupon they, as the servants of the Marquis, and by his 
 command, molUter maniis imposuerunt, using no more force 
 than was necessary to take the rabbits from him. Held, a 
 good plea.^ If the taking, or the attempt to take, is resisted 
 by the trespasser, and he persists in his attempts to retain 
 possession and carry the property off, then the owner may 
 lawfully use so much additional force as may be necessary to 
 prevent it.^ In Baldwin v. Hayden,^ it was proved, that the 
 defendant, having a certain writing, handed it to the plaintiff" 
 to read and return to him, but that the plaintiff folded it, and 
 was about carrying it away, when the defendant seized the 
 plaintiff by the collar, threw him down, held him down, and 
 choked him, until he gave the paper up. After a verdict for 
 the plaintiff in the court below, the Supreme Court granted 
 a new trial, because the circuit judge, instead of submitting 
 to the jury the questions: 1st. Was the ^^aper in question 
 delivered by the defendant to the plaintiff to be carried away 
 by him ? 2d. If not, did the defendant use more force than 
 necessary to prevent it, — instructed them that, if they should 
 find that the paper was peaceably in the plaintift^'s hands, by 
 the consent and delivery of the defendant, he had no right to 
 use the violence proved to recover it. This withdrew from 
 the consideration of the jury the only questions of fact in 
 the case — the intentioR with which the paper was delivered 
 to the plaintiff", and the quantum of force emj)loyed by the 
 defendant to prevent the abuse of that intention — and di- 
 rected the jury to the manner of the plaintiff's obtaining the 
 paper, instead of the object of its delivery by the defendant. 
 
 § IGO. If a constable, having an execution against A., at- 
 tempts to take B.'s property from the possession of B., and a 
 bystander, upon being commanded by the officer, forcibly 
 
 ' Blndcs V. Ili-^jjrs, 10 J. Scott, 713. 
 
 ' Gyre V. Culver, 47 Barb. 592. = G Coun. 453.
 
 138 ASSAULT AND BATTERY. § 161. 
 
 lays liands upon B. to overcome Lis resistance, B. may main- 
 tain an action for assault and battery against the bystander.^ ^* 
 
 § IGl. The question as to ho^v far an officer about to 
 make an attachment of personal property upon process 
 against one having in fact no attachable interest in the same, 
 may be resisted by the real owner of the property, has been 
 settled in Vermont by repeated decisions, which have held 
 that such resistance was unlawful ; and it follows that a re- 
 capture of the property after an attachment would be equally 
 unlawful, inasmuch as the recapture ^vould necessarily in- 
 
 ' Elder v. Morrison, 10 Wend. 128; ante, § 25. 
 
 * In this case, it was argued for the defendant, that the officer, when indem- 
 nified by the plaintiff in the execution, was bound to sell the property ; that, by 
 the New York Revised Statutes, it was enacted that, when a sheriff or other 
 public officer sliould find resistance, or have reason to apprehend it, in the exe- 
 cution of any process delivered to him. he may command every male inhabitant 
 of his county, or as many as he shall think proper, to assist him in overcoming 
 such resistance and in seizing and confining the resisters; that the statute fur- 
 ther required that the officer should certify to the court from which the process 
 issued the names of the resisters, to the end that they may be punished for their 
 contempt of such court ; and that every person commanded by an officer to assist 
 him, who should refuse without lawful cause, should be deemed guilty of a misde- 
 meanor, and subject to fine and imprisonment (N. Y. Rev. Sts. 5th ed. vol. 3, 
 p. 740). The inference drawn by the defendant's counsel, from the foregoing, 
 was, that the person who comes in aid of an officer to overcome I'eddaiice, is jus- 
 tified, whether the officer is justified or not; and that the question of title to the 
 property is not a proper subject of inquiry. The plaintiff', on the other hand, 
 contended that, if the principal be a trespasser, all persons acting in his aid or 
 by his command are also trespassers; that the fair meaning of the statute is, that 
 the officer shall be aided in the lawful execution of his process, and that such 
 process must be against the individual whose person or property is attempted to 
 be seized; and that the process, to authorize a justification, must be against the 
 person in 230ssession of the property taken. The Supreme Court, in affirming the 
 judgment of the Common Pleas, which was for the plaintiff", said: ''It is cer- 
 tainly true that, ;f the officer be guilty of a trespass, those who act by his com- 
 mand or in his aid must be trespassers also, unless they are to be excused in con- 
 sequence of the provision of the Revised Statutes. If a stranger comes in aid of 
 an officer in doing a lawful act, as executing legal process, but the officer, by 
 reason of some subsequent improper act, becomes a trespasser ab initio, the 
 stranger does not thereby become a trespasser. But when the original act of the 
 officer is unlawful, any stranger who aids him will be a trespasser, though he 
 acts by the officer's command. The counsel for the plaintiff" in error insists that 
 there is a diff'erence between aiding in the original taking, and the over- 
 coming resistance. It seems to me, that there is no such distinction. If the 
 taking was lawful, the resistance was unlawful. But if the taking was unlaw- 
 ful, the resistance was lawful. If the resistance was lawful, neither the officer 
 nor those he commanded to assist him could lawfully overcome that resistance. 
 Nor does the fact of the officer's being indemnified confer on him any authority 
 which lie had not without such indemnity. He may thereby be compelled to do 
 an illegal act in selling tlie property of strangers to the execution ; but he is a 
 trespasser in doing so, as are all others who aid liim."
 
 § IGl. DEFENSE OF PROPERTY. 139 
 
 elude resistance to the officer, if done forcibly. The courts 
 of that State have said that if the rule were otherwise, it 
 "would many times involve the officer in such ];)erplexing un- 
 certainty that he could not, with any degree of safety, pro- 
 ceed to execute his precept ; that questions of property 
 oftentimes depend upon such nice legal discrimination, and 
 upon sucli an accurate knowledge of facts, that to require 
 slieriffs and other officers to decide at their peril, when op- 
 posed, whether to proceed, and to make the legality of their 
 proceedings hinge upon the correctness of that decision, 
 would involve the public peace in constant disturbance.^ On 
 the other hand, in Massachusetts, it has been decided that 
 the owner of goods which are in his actual possession, may 
 lawfully defend his possession of them against a seizure or an 
 attachment by an officer who comes to take them on a pre- 
 cept against another person who has no right or interest in 
 the goods.^ * 
 
 ' Men-itt v. Miller, IB Vt. 416; State v. Fuller, 8 lb. 424; State v. Buchanan, 
 17 lb. 573; State v. Miller, 12 lb. 437. 
 
 ° Com. V. Kennard, 8 Pick. 133. 
 
 * In Com. V. Kennard, supra, the court said: ''Certainly, tlie officer in such 
 case would be a trespasser, for he does not act under any precept against such 
 owners, nor is he commanded to take their goods. Actions of trespass against 
 officers thus transgressing are among the most common actions in our courts, and. 
 they depend upon the same principle as actions of assault and battery, or false 
 imprisonment by one who is arrested on a writ or warrant against another per- 
 son. In such case, there is no authority for the arrest, and the person making- 
 it, whether by mistake or design, is a mere trespasser. And the same facts 
 which would sustain an action of trespass by the person arrested, will justify 
 any resistance which may be necessary to defend his 2:)ersonal liberty short of in- 
 jurious violence to the officer. We cannot distinguish between an officer who 
 assumes to act under a void precept and a stranger who should do the same act 
 without any precept, for a command to arrest the person or seize the goods of B. 
 is no authority against the person or goods of A. And an officer without a pre- 
 cept is no officer in the particular case in which he so undertakes to act. The 
 officer must judge at his peril in regard to the person against wdiom he is com- 
 manded to act. This is said to be hard, but it is a hardship resulting from the 
 voluntary assumption of a hazardous office, and, considering that in all cases of 
 doubt the officer may require indemnity before he executes his precept, the hard- 
 ship is imaginary. It is said that the owner of goods seized or attached on a 
 precept against another, has legal remedies l)y action of replevin, trover, or tres- 
 pass, and tiierefore ougiit not to ))e allowed to protect his goods with a strong 
 hand, for this power may be abused so as to cover the property of the debtor, 
 and so the creditor may Ije disabled from obtaining satisfaction. Sucii a mis- 
 chief may happen, but it is not a fair argument against tlie existence of a right 
 that it may i)e abused. If tiie right did not exist, great a'ouses miglit come from 
 the power in officers to take any person's property upon suspicion or suggestion
 
 140 ASSAULT AND BATTERY. § 162. 
 
 § 162. A forcible entry into a house or grounds may be 
 resisted with force, without previously requesting the in- 
 truder to depart ; unless the forcible entiy be made by an 
 officer acting under competent legal authority;-^ and the rule 
 is the same, in the case of the forcible seizure of goods. ^■^* 
 
 that it belongs to the debtor, and the owner might be driven to a replevin in 
 which he must give a bond with surety, or to his action for damages, in which 
 the expense may consume the value of the property. But it is again said, that 
 the rule sought to be established by the defense will deprive creditors of the 
 power of trying the question of property in cases where there may be grounds to 
 believe that it is covered by the person in possession claiming to be the owner. 
 But the creditor is not without a legal remedy. He may have an action on the 
 case for interrupting unlawfully his attachment. The officer may have an action 
 of trespass if the goods are taken out of his possession. And the trustee process 
 will compel the possessor to make full disclosure of his right to hold. And 
 besides all this, the party is lial)le to indictment, and if he fails in making out 
 his right strictly, will incur a severe penalty. That a man may defend his per- 
 son, his lands, or goods against the intrusion or invasion of those who have no 
 lawful authority over tliem, would seem entirely unquestionable. If tiie officer 
 believes the possession is only colorable, and the claim of property fraudulent, 
 if backed by the creditor's orders, or secured by bond of indemnity, he will take 
 care to be so attended as to be protected against insult in the execution of his 
 precept." 
 
 ' Tullay V. Eeed. 1 C. & P. G; Polkinhorn v. Wright, 8 Q. B. 197; Pitford 
 V. Armstrong, Wright, 94. 
 
 ' Green v. Goddard, 2 Salk. 641 ; Owen, 150 ; Weaver v. Bush, 8 Term R. 78. 
 
 * Wakefield v. Fairman (41 Vt. 339), was an action by an officer for an as- 
 sault and battery committed upon him while attempting to attach a stallion be- 
 longing to the defendant. At the trial of the cause in the court below, the de- 
 fendant asked the. court to charge the jury that if the attachment was merely col- 
 orable, and the real end and jjurpose was to use the process in order to restore 
 the stallion to the possession of one Eaton, it would be such an abuse of the pro- 
 cess that all acts of the officer under it would be a trespass, and would justify 
 the defendant in the employment of reasonable force to protect his property. 
 But the court refused so to instruct. The Supi-eme Court, in sustaining such 
 refusal, said: "The point made as to the attachment being colorable, involves 
 the assumption that the plaintiti had ample official authority to serve the writ. 
 It is claimed that his being aware of the alleged purpose of the plaintiff in the 
 writ, precluded him from the exercise of official authority. The case shows that 
 the plaintiff in the writ had a valid claim and cause of action against the defend- 
 ant in it. The alleged illegality of the proceeding involved in the point under 
 consideration, consists in the fact that the plaintiff therein had the purpose of 
 restoring possession of the horse to S. V. Eaton, and the officer, the present 
 plaintiff", being aware of that purpose, was not only deprived of his authority 
 and duty to serve the writ as directed by the plaintiff' therein, but became a tres- 
 passer in attempting to serve it. Aside from that purpose, it is not claimed that 
 the attachment would not have been entirely lawful. It is virtually conceded 
 that it would have l)een. and that the efforts of the plaintiff as officer, to make 
 t*he attachment, would have been lawful and proper. We have a course of de- 
 cisions in this State, based on unquestioned principle, and countenanced by 
 many cases in England and States of the Union, to the effect that such purpose 
 would not render the attachment of the horse upon that writ unlawful, even as 
 to the plaintiff' in the writ. Of course, it would not be unlawful in the officer to 
 make such attachment merely because he was aware of such purpose in the 
 plaintiff. The principle is involved and strongly illustrated in cases for mali-
 
 § 163. DEFENSE OF PROPERTY. 141 
 
 Where au officer unlawfully breaks open the outer door of a 
 house, and entering, seizes property therein, he may be right- 
 fully opposed in carrying the property away. ^ Unless, how- 
 ever, the trespass is accompanied with violence, the owner of 
 the land or goods will not be justified in assaulting the tres- 
 passer in the first instance, but must request him to depart 
 or desist, and if he refuses, he should gently lay his hands on 
 him for the purpose of removing him, and if he resist w^ith 
 force, then force sufficient to expel him may be used in re- 
 turn by the owner ;^ and if a policeman standing by sees the 
 resistance, he may take the intruder into custody, who, by 
 resisting the attempt of the owner of the house to put him 
 out, will be guilty of assault and battery.^ 
 
 § 163. As previously stated,* care must be taken not to 
 exceed the bounds of mere defense, prevention or recovery, 
 so as to become vindictive. To an action for assault and bat- 
 tery, the defendant pleaded that he was possessed of a horse 
 and gig which were upon a public highway, and that the 
 plaintiff seized the horse and gig, and was driving them 
 away and dispossessing the defendant of them, and would, in 
 breach of the peace, have dispossessed him of them ; where- 
 fore the defendant defended his possession of them and re- 
 sisted the plaintiff's endeavor, and in so doing committed the 
 said assault. It was held that evidence that showed that the 
 plaintift' seized the defendant's horse for the purpose of merely 
 obtaining his name and address, did not support the plea. ^ 
 A declaration in trespass charged that the defendant upset a 
 
 cious prosecution, iu which the plaintiff cannot recover, however virulent the 
 malice, if probable cause for the prosecution existed. In those cases, the plaintiff 
 has the burden of negating the existence of probable cause, as well as of proving 
 the existence of malice" (citing Sonth Rovalton Bank v. Suffolk Bank, 27 Vt. 
 505; Barron v. Mason, 31 Vt. 181); Chatfield v. Wilson, 28 Vt. 49; State v. 
 Buchanan, 17 Vt. 573; Bui. N. P. 14). 
 
 ' The People v. Hubbard, 24 Wend. 369. 
 
 "^ Scribner v. Beach, 4 Denio, 448; Seaman v. Cuppledick, Owen, 150; 
 Weaver v. Bush, 8 Term R. 78; Hawkins' P. C. b. 1, c. 60, § 23; 1 East's P. C. 
 400; pod, § 170. 
 
 =" Wheeler v. Wliiting, 9 C. & P. 262. " Ante, § 152. 
 
 " Gaylard v. Morris, 3 Exch. 695 ; 18 L. J. 297.
 
 142 ASSAULT AND BATTERY. § 164. 
 
 ladder upon wliicli the plaintiff was standing, and threw the 
 plaintiff from it to the ground. The defendant pleaded that 
 he was possessed of a house and garden, and that the plaintiff 
 erected a ladder in the garden and ascended the ladder in 
 order to nail a board to the house of the plaintiff'; that the 
 defendant forbade the plaintiff* so to do, and told him to 
 come down ; and that, as the plaintiff' persisted in nailing the 
 board, the defendant gently shook the ladder, gently over- 
 turned it, and gently threw the ^^laintiff' from it to the 
 ground, doing as little damage as possible to the plaintiff. 
 Upon demurrer to the plea, it was held that the overturning 
 and throwing down of the ladder, however gently, was, under 
 the circumstances, unjustifiable. ^ One of the marshals of the 
 city of London, whose duty it ^vas on the day of a public 
 meeting in the Guildhall, to see that a passage was kept for 
 the transit to the carriages of the members of the corporation 
 and others, directed a person in the front of the crowd at 
 the entrance, to stand back, and on being told by him that 
 he could not for those behind him, struck him immediately 
 on the face, saying that he would make him. It was held 
 that in so doing the marshal exceeded his authority; that he 
 should have confined himself to the use of j^ressure, and 
 should have waited a short time to afford an opportunity for 
 removing the party in a more peaceable way. ^* 
 
 § 164. The class of crimes in the prevention of -which a 
 
 ' Collins V. Renison, Say. 138. See State v. Elliot, 11 N. Hamp. 540. 
 
 ' Imason v. Cope, 5 C. & P. 193. 
 
 * In an action for throwing water over the plaintiif's apartment and herself, 
 it was held no defense that the plaintiff was engaged in obstructing an ancient 
 window of the defendant's house, and that the defendant threw water over her 
 to prevent it (Simpson v. Morris, 4 Taunt. 821). In an action for assault and 
 battery it is not a justification that the plaintiff kept a disorderly house in which 
 were dejjosited stolen goods, and that the defenclants tore down the hovise as a 
 public nuisance, and in so doing, necessarily assaulted the plaintiff, and some- 
 what beat, bruised and wounded him (Gray v. Ayres, 7 Dana, 375). The expul- 
 sion of a person from his dwellins'-house is an injury to the dwelling-house (Me- 
 riton V. Coombes, 1 Pr. R. 570; fo L. J. C. P. 336}.' "Whenever the justifica- 
 tion of any act, alleged to be wrongful and injurious, is based on the exercise of 
 authority, whether that authority be incident to the official character and duty of 
 the party exercising it, or arise from the misconduct of the opposite party and 
 the necessities of the case, the question of the excess of such authority is to be 
 determined by the jury " (Hilliard v. Goold, 34 K Hamp. 230).
 
 § 1G5. DEFENSE OF PROPERTY. 143 
 
 man may, if necessary, exercise his natural right to repel 
 force by force, to the taking of the life of the aggressor, is 
 confined to felonies which are committed by violence and 
 surprise. Foster states the rule thus : " A man may repel 
 force l)y force in defense of his j^erson, habitation, or j)rop- 
 ertv, against one who manifestly intends or endeavors, by 
 violence and surprise, to commit a known felony, such as 
 murder, rape, robbery, arson, burglary, and the like, upon 
 either. In these cases, he is not obliged to retreat, but 
 may pursue his adversary, until he has secured himself from 
 all danger ; and if he kill him in so doing, it will be justi- 
 fiable self-defense ; " ^ and even his servant, then attend- 
 ant on him, or any other person 23resent, may interpose for 
 preventing the mischief.'^ "' Where a slave was stealing prop- 
 erty in the night, and the o"\vner of the property, owing to 
 the darkness, could not identify him, and had reason to sup- 
 pose that the thief could not be apprehended, it was held 
 that the owner of the property might lawfully shoot with in- 
 tent to disable, but not take life.^ 
 
 § 165. If, in an action for the forcible expulsion of the 
 plaintiff from land, the defendant do not show a right of 
 possession, his justification will, of course, fail.* According- 
 ly, where a landlord enters upon a tenant who holds over 
 after the expiration of his lease, lays hands on the tenant, 
 and turns him out, he cannot truly say that this was done 
 in defense of his (the landlord's) possession ; such possession 
 not having been gained until after the exercise of the act of 
 force constituting the assault. But if the tenant, or any 
 other person who has originally lawfully come into posses- 
 
 ' Foster's Cr. L. 2d!J. 
 
 ° State V. Moore, 31 Conn. 479; Scribner v. Beacli, 4 Denio, 448. 
 
 ' McClelland v. Kay, 14 B. Mon. 103. ' Post, § 170. 
 
 * Blackstone says: "Such homicide as is committed for the prevention of 
 any forcible and atrocious crime is justifiable by the law of nature, and also by 
 the law of England as it stood as early as the time of Bractou" (4 Blk. Com. 
 180, 181). And he specifies as of that character those which we have spoken of 
 in the text. No others are mentioned by Hale or Hawkins, who wrote prior to 
 Blackstone, or by any writersince (1 Hale's P. C. 488; 1 Hawk. P. C. 71;.
 
 144 , ASSAULT AISD BATTERY. § 165. 
 
 sion, voluntarily leaves the premises vacant, the landlord or 
 lawful owner may at once enter and take and keep posses- 
 sion. The previous possessor is then lawfully dispossessed, 
 and if he reenters, he commits a trespass, and may be turned 
 out of the house or off the land.^ In Russell v. Dodds,^ 
 which was an action for assault and battery, the facts were 
 as follows : In the interval between the summer and winter 
 schools, one Hutchins proposed to open, in the district 
 school-house, a private school for the children of the district 
 and vicinity, which object was generally concurred in by the 
 inhabitants of the district, though no corporate action was 
 had in relation thereto. Hutchins applied to the defendant, 
 who was the prudential committee of the district, for the use 
 of the school-house, and thereupon the defendant agreed with 
 Hutchins that he mio-ht have the school-house for his school 
 for the i^eriod of eleven weeks. Hutchins thereu2:)on took 
 possession of the school-house and opened his school. After 
 the school had continued several weeks, the defendant, for no 
 alleged reason, in the absence of Hutchins and his pupils, fast- 
 ened the door of the school-house, and the defendant, in en- 
 deavoring by force to prevent Hutchins and the plaintiff from 
 reentering, used personal violence. The defendant contended 
 that he had no authority to make any such agreement with 
 Hutchins, and that at most it was a mere license, which he 
 might revoke at any time, and resume possession. It was, 
 however, held that the plaintiff was entitled to recover.^ * 
 
 ' Tavlor v. Cole, 3 Term E. 292; Browne t. Dawson, 13 Ad. &E. 624; Taimtou 
 V. Costar, 7 Term E. 431 ; Butcher v. Butcher, 7 B. & C. 403. 
 
 ^ 87 Yt. 497. 
 
 = Deane v. Clayton, 7 Taunt. 489; Ilott v. Wilkes, 3 B. & Aid. 304; Bird v. 
 Holhrook, 4 Bing. G28; Johnson v. Patterson, 14 Conn. 1; State v. Moore, 31 
 Ih. 479; Barnes v. Wood, 14 Jur. 334; Blyth v. Topham. Cro. Jac. 158; Hard- 
 castle Y. South Yorkshire &c. E. E. Co. 4 H. & N. 74 ; Gillis v. Penusylv. E. E. 
 Co. 59 Penn. St. E. 129; Touaw^nnda E. E. Co. v. Munger, 5 Denio, 255; afl^'d, 
 4 N. Y. 349. 
 
 * In Eussell v. Dodds, sv/pra, the court said: "The defendant in this case as- 
 sumed to agree with Hutchins that he should have the use of the house for his 
 school for the period of eleven weeks. Hutchins had acted upon this agreement, 
 got up his school, and taken possession of the house, and was fully performing 
 on his part. If his school Avas broken up before its intended termination, it 
 might, and doubtless would, be a serious loss to him as well as to his pupils. 
 Whether the defendant had exceeded his proper authority in agreeing to let him
 
 § 166. DEFENSE OF PROPERTY. 145 
 
 § 1G6. Even a trespasser on the land of another may 
 maintain an action for a wanton or intentional injury inflicted 
 on him by the owner. The question whether an action can 
 be supported by a trespasser for personal injury caused by a 
 spring gun, man trap, or dog spike set on the grounds of the 
 defendant, has been elaborately discussed in the English 
 courts, and it has been held that when no proper warning 
 has been given, such an action will lie, on the ground that a 
 man cannot laAvfully do indirectly that which it is unlawful 
 for him to do directly. He cannot shoot, or maim, or set a 
 ferocious dog upon a mere trespasser, or place there a concealed 
 machine where it will be likely to do the same thing, with- 
 out warning. In England, as against a trespasser, a person 
 may make any defensive erection, or keep any defensive 
 animal which may be necessary for the protection of his 
 grounds, provided he take due care to confine himself to 
 necessity. But it has been held that in these and the like 
 cases the defendant shall not be justified, even as against a 
 trespasser, unless he give notice that the instrument of mis- 
 chief is in the way. This has been held of spring guns ; 
 and it goes on the principle that secrecy is not necessary to 
 the object, or, at least, not so necessary that the means may 
 be used to the hazard of human life or safety. This doc- 
 trine was much discussed in Deane v. Clayton,^ in which the 
 defensive erection was spikes or dog spears fixed along hare 
 paths, for the destruction of dogs upon the defendant's prem- 
 ises. The plaintiff's dog being decoyed by a hare and killed, 
 the judges of the Common Pleas were equally divided on the 
 
 have the house for eleven weeks or not, vpe think it does not lie in the defend- 
 ant's mouth to say that he had no authority to make such agreement, and that 
 thei'efore he will violate and repudiate it. If the district, his principal, was 
 content, he was bound to be. So far as the defendant is concerned, it is the 
 same as if he had himself been the owner of the house and made such a con- 
 tract. Having made such a contract, and Hutcliins having acted on it, taken 
 possession of the house, and opened his school, the agreement was not revokable 
 by the defendant without cause ; nor can lie allege his want of legal authority to 
 make the agreement. Hence, when he undertook forcibly to prevent Hutcbius 
 , from continuing his school in the house during the period he had agreed he 
 migiit do so, he was acting contrary to law, and such use of force was unlawful, 
 and he would be liable therefor." 
 
 ' 7 Taunt. 489. 
 
 Vol. I.— 10
 
 14G ASSAULT AND BATTERY. § 161^ 
 
 question whether an action hiy by the owner of th.e trespass- 
 ino; cloCT. But they all seem to have aoTeed that the case 
 w^ould have been different were the life or even the safety of 
 a human being thus put in hazard. Dallas, J., was against 
 the action in that case, and yet he admitted that " the law 
 distinguishes to many and most essential purposes, between 
 property and the life of a man." In respect to such defenses, 
 Best, C. J., in Holt v. Wilkes,^ said, that humanity required 
 that the fullest notice possible should be given, and that the 
 law of England would not sanction what was inconsistent 
 with humanity. In the United States, as we shall have 
 occasion to show hereafter,- a man cannot lawfully maintain 
 on his premises, as a protection against the depredations of 
 trespassers, anything dangerous to life or limb.* 
 
 6. Metciking pj^operty. 
 
 § 167. Where personal property is immediately followed 
 for recapture from the individual taking it, the same rule for 
 the most part holds, as in the defense of property in posses- 
 sion. Hawkins ^ says : " It seems certain that even at this 
 day, he who is wTongfully dispossessed of his goods, may 
 
 ' 3 B. & Aid. 304. ^ Post, § 845. = PL Cr. 274. 
 
 * Although the owner of property is not liable to a trespasser, or to one who 
 is on it by mere permission or sufferance, for the negligence of himself or serv- 
 ants, or for that which would be a nuisance if it were in a public street or com- 
 mon, yet there is a class of cases in which defendants have been held responsible 
 for their misconduct, although culpable acts of trespass by the plaintiffs produced 
 the consequences. In Lynch v. Nurdin, 1 A. <fcE. IS". S. 30, the defendant's serv- 
 ant left his horse and cart standing for half an hour in an open street, where the 
 plaintiff with other children got into and about the cart, and teased the horse 
 until he moved forward, and with the cart ran over and greatly injured the 
 plaintiff. In Birge v. Gardner, 19 Conn. 507, a child too young to exercise any 
 discretion, by shaking a gate, which the owner had left carelessly standing on 
 his own land, in a lane through which children were accustomed to pass, pulled 
 it over upon himself and broke his leg; and he recovered damages though he 
 was a trespasser. But where the plaintiff" fell into a quarry which was left open 
 and unguarded on the unenclosed waste lands of the defendant, over which, in 
 passing from one public highway to another, the public were freely allowed to 
 walk, it was held that the defendant, the owner, was under no legal obligation 
 to fence the excavation, unless it was made so near to a public road or way as to 
 constitute a public nuisance. Williams, J., said: '"Xo right is alleged. It is 
 merely stated that the owners allowed all persons to go upon the waste without 
 complaint; that they were not churlish enough to interfere with any person who 
 went there. He must take the permission with its concomitant conditions, and. 
 it mav be, perils " (Hounsell v. Smyth, 7 C.B. X. S. 731).
 
 § 1G7. RETAKING PROPERTY. 147 
 
 justify the retaking of them by force from the wrong-doer, if 
 he refuses to redeliver them; for the violence which happens 
 through the resistance of the wrongful possessor, being 
 originally owing to his own fault, gives him no just cause of 
 complaint, inasmuch as he might have prevented it by doing 
 as he ought." ^ The property may be taken from the custody 
 of the wrong-doer without a previous request. But unless 
 it was seized, or attempted to be seized forcibly, the owner 
 cannot justify doing anything more than gently laying his 
 hands on the wrong-doer to recover it.^ Generally, the only 
 points to be determined in such case are, whether the pur- 
 suer has an undoubted right of property and of immediate 
 possession, and whether the individual removing it is a mere 
 wrong-doer. In such case, a recaj^ture of the property is 
 permitted by the individual, when made only with the 
 reasonable exercise of power which the occasion demands. 
 In State v. Elliot,^ the alleged assault and battery originated 
 in a controversy as to the ownership of certain windows 
 which had been placed in a dwelling-house by the complain- 
 ant while it was occupied by her as a tenant at sufferance, 
 she having been told, as she alleged, by the owner of the 
 house, that if she would furnish windows she might take 
 them away when she left. The owner of the house having 
 died, the administrator directed her to leave the premises, 
 and she did so, claiming the windows, the administrator 
 telling her before she left, that if there was such an agree- 
 ment in relation to them as she stated, it would be fulfilled, 
 but that he could give no authority to her at that time to 
 take them. The building was afterward sold to one Jack- 
 man without any reserve of the windows ; and Elliot, the 
 respondent, w^ent into possession as tenant of Jackman, 
 neither of them having any notice of the complainant's claim. 
 
 ' See post, § 439. 
 
 = Com. Dig. Pleader, 3 M. 17; Weaver v. Bush, 8 T. R. 78; Scribner v. 
 Beach, 4 Denio, 448; Barnes v. Martin, 15 Wis. 240; Andre v. Johnson, 6 
 Blackf. 375 ; post, § 789. 
 
 ' 11 N. Hamp. 540.
 
 148 ASSAULT AND BATTERY. § 1G8. 
 
 Subsequent!}^, the complainant went to tlie house in the re- 
 spondent's absence took out the windows, and left with them ; 
 and the respondent upon being informed of what she had 
 done, immediately followed to reclaim the property. She had 
 gone about one hundred rods when the respondent overtook 
 her, stopped her horse, turned him partly around, and seized 
 the window^s, claiming them as his ; and after some struggle 
 and violent language on his part, forced the windows from 
 her, causing some injury to the comj^laiuant, but using no 
 more violence than was required to regain possession of the 
 windows. As the windows passed by deed, and the re- 
 spondent was in actual possession of them as parcel of the 
 premises conveyed, w^hen they were dissevered from the 
 house of the complainant, without leave or authority from 
 any one, the case resolved itself into a question as to the ex- 
 tent of violence which may be exerted by the owner in re- 
 claiming property taken from him by a wrong-doer under a 
 mistaken claim of title, where the retaking attempted is im- 
 mediately consequent on the taking. It was held that the 
 facts elicited constituted a perfect defense."^ 
 
 § 168. Most cases of this kind arise where there is a 
 
 * In State v. Elliot, supru, the court said: "In the case before us, the true 
 title to the property, as we hold, was in the individual under whom the respond- 
 ent claimed as tenant. At the same time, there is no doubt the complainant 
 supposed the property behmged to her, and that she might lawfully remove it. 
 The circumstances were such as would not call for, or justify an aggravated case 
 of violence, and fortunately none such occurred. It does not appear that the 
 respondent in any manner seized upon the person of the complainant, or that 
 any injury occurred, except what was merely incidental to the removal of the 
 windows from her possession, and this was caused by the tenacity of the 
 complainant in holding to the property. There was no immediate contact of the 
 parties themselves, and nothing indicating a design of personal violence. There 
 ■was some irritation of feeling manifested in language; but tlie sole force used 
 was directly u[)on the property, until it was relinquished, owing to the weaker 
 hold of the complainant. If there is any case, where a recapture of property 
 wrongfully taken, and which the party is at the same time moving, may be per- 
 mitted, it would seem as though this might be one; and if force may be at all 
 allowed, we could hardly expect a less degree of it than was here used. We deem 
 it our duty to be especially cautious in permitting an injurea party to take his 
 redress into his own hands. It is most usually a dangerous experiment for him. 
 and for the peace of the community, so to do. Circumstances at times render 
 this power necessary. In the present case, the respondent went as far as was advis- 
 able, or perhaps justifiable to go. But as it does not appear that he transcended 
 his rightful exercise of power, we regard his justification as sufficient, and that 
 be cannot, under such circumstances, be held guilty of an assault and battery."
 
 § 1G9. RETAKING PROPERTY. 149 
 
 felonious intent. When such is the cause of the taking, the 
 urgency of a recapture is vastly greater than where the tak- 
 ing arises from a mere conflicting claim of title in the prop- 
 erty. In the former case, a greater degree of force may with 
 propriety be resorted to than in the latter. But a resort to 
 any unusual degree of violence where there is no felonious 
 intent — or where the violence is disproportioned to the ex- 
 igency — or where there are other remedies equally effective 
 — should not be encouraged, and will always admit of more 
 or less doubt whether it can be justified. 
 
 § 169. The right to retake land which is in the wrong- 
 ful possession of another, depends upon somewhat similar 
 principles wath the right to retake personal property. In an 
 early case in Vermont,^ the court held the folio wing. language : 
 " If the defendants went into possession without right, and 
 as mere trespassers upon the plaintiif's rights, he having a 
 superior right to the land, he might well put the defendants 
 out of such wrongful possession, and if he did it by force 
 even, he would acquire a rightful possession, and would, at 
 most, only be liable for a breach of the peace, or a trespass 
 upon the person of the defendants. It was formerly con- 
 sidered that the proprietor of land, who found an intruder in 
 quiet possession of the same, must resort to his legal remedy, 
 and could not forcibly expel such wrong-doer. But it is now 
 well settled, that such intruder may be forcibly expelled, so 
 far as the land is concerned. If the owner of the land is 
 guilty of a breach of the peace, and trespass upon the j^er- 
 son of the intruder in so doing, he is liable for that ; but 
 his possession of the land is lawful, and he may maintain it, 
 or sustain any proper action for an infringement of it." But 
 necessary force to eject the trespasser after he shall have in- 
 truded into the premises, is the utmost remedy which the 
 law allows by the act of the owner.^ And if the trespasser 
 be allowed to continue on the land, and the owner sleeps 
 upon his rights, he will gain a possession, and cannot be 
 
 ' Beecher v. Parmele, 9 Vt. 353. ' Loomis v. Terry, 17 Wend, 496.
 
 150 ASSAULT AND BATTERY. § 170. 
 
 forcibly ejected.^ lu Mugford v. Richardson, ^ it appeared 
 that the plaintiff was the tenant of the defendant ; that hav- 
 ing failed to pay rent, and being notified to quit, the defend- 
 ant entered the house and proceeded to take out the windows ; 
 and that while the defendant was so doing, he was resisted 
 by the plaintiif, which resulted in the alleged assault and 
 battery. The following instruction at the trial in the Su- 
 perior Court, was held correct : — " That the defendant had a 
 right to enter the premises and take out the windows, pro- 
 vided he created no breach of the peace ; that if the plaintiff 
 undertook to prevent him, he might use as much force as was 
 required to overcome her resistance ; and that if he used 
 more force than was necessary for that purpose, and she 
 was injured ]>y reason of such excess of force, the plaintiff 
 was entitled to recover for the injuries thereby sustained." 
 In an action for an assault, the defendant pleaded that the 
 plaintiff entered the defendant's close without leave and 
 license, and that the defendant ordered him oft*, and that he 
 not going, the defendant molliter manus, &.c. Replication 
 de injuria. It was held that it was not necessary for the de- 
 fendant to rebut all leave and license, because that was not 
 material to the issue ; the defendant's justification being 
 complete, if he could show that he required the plaintiff' to 
 leave the close, and the plaintiff refused to do so, although 
 the plaintiff had, in fact, entered, at first, by the leave and 
 license of the defendant, such leave and license lasting only 
 during the defendant's j^leasure.^ 
 
 § 170. If the owner of land assaults and expels persons 
 who, having originally come into possession lawfully, con- 
 tinue to hold unlawfully after their title to occupy has been 
 determined, he will be liable for the assault.^ The law does 
 not allow a person to redress his private wrongs. He may 
 
 ' Browne v. Dawson, 12 Ad. & E. 624. = 6 Allen, 76. 
 
 = Jelly V. Bradley, 1 Car. & M. 270. 
 
 * Newton v. Harlaud, 1 Sc. N. R. 474; Pollen v. Brewer, 7 C. B. K S. 
 373; ante, §105.
 
 § 171. RIGHT OF OCCUPIER TO EJECT PERSONS. 151 
 
 make use of force to defend Lis lawful possession ; but being 
 dispossessed he has no right to recover possession by violence 
 and breach of the peace, much less by the infliction of per- 
 sonal injury. This principle applies to the possession and 
 dispossession of personal property ; ^ and it ought, especially, 
 to be rigidly observed in relation to a man's dwelling-house, 
 in which he is peculiarly protected by the law.^ In an ac- 
 tion for attacking the plaintiff with a deadly weapon, the de- 
 fendant undertook to justify that he was, at the time men- 
 tioned, lawfully seized of a messuage and dwelling-house, of 
 which he ought then to have been in the quiet and peaceable 
 possession, but which at the time when, &c., was unlawfully 
 withheld from him by the plaintiff, he then being, and before 
 having been, in the unlawful possession of the same, and that 
 for the purpose of entering his said dwelling-house, he com- 
 mitted the assault and battery complained of, as lawfully he 
 might, using no more force than was necessary to overcome 
 the unlawful resistance of the plaintiff. The plaintiff replied, 
 that he and his son, and family had been, for the sj^ace of a 
 year before the time when, <fec., and at that time was in the 
 quiet possession of the dw^elliug-house, as his and their home, 
 when the defendant made a violent attack on the plaintiff", 
 and beat and Ijruised him in manner set forth in the writ. 
 It was held that the plaintiff was entitled to recover.^* 
 
 7. Might of owner or occ^ipier of premises to eject persons 
 
 tlierefrom. 
 
 § 171. The owner or rightful occupant of land or prem- 
 
 ^ Ante, § 162. 
 
 " 3 Brk. Com. 4, 5 ; Gregory v. Hill, 8 Term R. 299 ; Hyatt v. Wood, 3 Johns. 
 239. 
 
 ' Sampson v. Henry, 11 Pick. 379. 
 
 * A tenant in common, cannot lawfully assault one who enters upon the land 
 by permission of his cotenant (Causce v. Anders, 4 Dev. «& Batt. 246). 
 
 Where the duly authorized agent of a tenant in common, of land, goes thereon 
 to remove his principal's share of the crops, and is forciljly ejected therefrom by 
 the cotenant,the latter is guilty of an assault and battery (Com. v. Rignev, 4 Allen, 
 316; citing Com. v. Randall, 4 Gray, 36; Com. v. Presby, 14 lb. 65; Walker 
 V. Fit^s, 24 Pick. 191; Chandlery. Tliurston, 10 Pick. 205; Com. v. Lakeman, 
 4 Cush. 597.
 
 152 ASSAULT AND BATTERY, ' § 171. 
 
 ises has a legal right to control it, and to allow whom he 
 pleases to enter and remain there. But if he desires a per- 
 son to leave, he must first request him to do so, and if such 
 person refuses, he can then use so much force as is necessary 
 to ]3ut him out.^ And although one enters the office of an- 
 other for the purpose of transacting business, the owner or 
 his agent may eject him after a request to leave and a refusal, 
 using no more force than is necessary.^ In an action for as- 
 sault and battery by A. against B., it appeared that A., hav- 
 ing been turned out of the liquor store of B., where he had 
 become drunk, went back flourishiug a knife and threatening, 
 B., whereupon the latter retreated a little and then struck A. 
 with a stick. The court refused to instruct the jury that the 
 plaintiff deserved more forbearance at the defendant's hands 
 on account of havino^ become intoxicated at his bar, but 
 charged them that the defendant's store " was his castle," and 
 that no person, after being ejected from it, had a right to re- 
 turn unless armed with legal authority.^ Where goods are 
 placed in a shop window with the price marked on them, the 
 shopkeeper is not obliged to sell them at the price indicated ; 
 and if a person insists upon having the goods, and refuses to 
 leave the shop, after being requested by the shopkeeper or 
 his servants, he may be ejected.^ '^' 
 
 ' State V, Woodward, 50 N. Hamp. 527. 
 
 * Woodman v. Howell, 45 111. 367. ' Pierce v. Hicks, 34 Geo. 259. 
 
 * Timothy v. Simpson, 6 C. & P. 500. 
 
 * Where, in an action by a female employee in a factory against the superin- 
 tendent for using improper force in ejecting her for disorderly conduct, the judge 
 charged the jury that if, during the process of ejecting her from the room, the 
 defendant used unnecessary and improper force and violence towards her, he 
 thereby became a trespasser ah initio, and would be lialjle for all his acts; it was 
 held that the instruction was erroneous, because the defendant was not in the 
 exercise of any authority conferred by law when he committed the alleged as- 
 sault. "He had the legal right to use the kind and degree of force necessary 
 and appropriate to protect his person and his employer's property from the dis- 
 order and misconduct of the plaintiff. But the parties stood on equal terms in 
 this respect. Their relation to each otlier was created by contract, and the right 
 of the defendant to remove the plaintiff from the room for misbehavior was an 
 incident to that relation" (Esty v. Wilmot, 15 Gray, 168). 
 
 It is as unlawful for a grown son or daughter to create a disturbance in the 
 family as for a mere stranger, and the father may as rightfully interpose to pre- 
 serve tlie good order and propriety of the household. Where a married daughter, 
 who lived with her father, engaged in an angry dispute with the servant girl.
 
 § 173. EIGHT OF OCCUPIER TO EJECT PERSONS. 153 
 
 § 172. The owner or occupier is not, however, permitted 
 to invite or allow another to enter in order to irritate or in- 
 sult him, and thus make an excuse for committing an assault 
 and battery upon him. Where A. entered a book store with 
 the permission of the owner, and conducted himself peace- 
 ably, and B., who was a partner of the owner, and had a 
 right to the possession in common with him, seeking for an 
 occasion to lay hands on A., in order to injure and abuse him, 
 used insulting language to irritate and provoke him, and re- 
 quested A. to leave the store, and A. refusing to depart, B. 
 forced him towards the door, it was held that B. was liable 
 for the assault.^ "' 
 
 § 173. When a person enters another's premises for a law- 
 ful purpose, which he has a right to accomplish before leav- 
 ing, he may resist an attempt to put him out. Accordingly, 
 where in an action for assault and battery, it appeared that 
 the defendant went to the plaintiff's house with a subpoena, 
 which he was authorized by law to serve, that the person 
 upon whom he was to make service was in the house, and 
 that, having found the door open, he entered peaceably, it 
 was held that the plaintiff, by resisting the defendant in 
 making such service, was guilty of an unlawful act ; that the 
 defendant was justified, notwithstanding such resistance, in 
 
 and refused to desist when requested by her father to do so, it was held that he 
 was justified in employing whatever force was necessary to preserve the peace of 
 his family (Smith v. Slocum, 62 lil. 354). 
 
 ' Watrous v. Steel, 4 Vt. 629. 
 
 * In the above case, the following instructions of the court below were held 
 correct: " That, if the plaintiff was in the book store making a noise or disturb- 
 ance, the defendant, after requesting him to depart, might lawfully use all neces- 
 sary force, short of actual striking, to put him out; but, although the defendant 
 had such right, yet as the plaintiff entered the store by license, if the jury found 
 that he was conducting himself peaceably, and making no disturbance there, and 
 that the defendant was the aggressor, and used insulting language to the plaintiff 
 to irritate and provoke him, they would inquire (although the defendant re- 
 quested him to leave the store, and he refused) whether the assault was made 
 upon the plaintiff to remove him from the store and in defense of his possession, 
 or whether it was done without such intent, and the occasion was sought by the 
 defendant to lay hands upon tlie plaintiff for the purpose of injuring and abusing 
 him. If they found that the assault was committed for the former cause, they 
 would return a verdict for the defendant ; if for the latter purpose, the defend- 
 ant's plea of justification was not supported.''
 
 154 ASSAULT AND BATTERY. § 174. 
 
 using all the force necessary to enable him to serve the sub- 
 pcena ; and that he was only liable for violence used by him 
 more than, was necessary to overcome the plaintiff's resist- 
 a,nce.^ And an action of trespass may be maintained against 
 a clerk of court who forcibly turns a person out of the clerk's 
 office without cause, though such person went there merely 
 from motives of curiosity.^ 
 
 8, HigM of innlceeper to exclude or exj^el persons. 
 
 § 174. As an innkeeper holds out his house as a public 
 place to which travelers may resort, he cannot prohibit per- 
 sons who come in that chara(iter, in a proper manner, and at 
 suitable times, from entering, so long as he has the means of 
 accommodation for them. But he is not obliged to make his 
 house a common receptacle for all comers, whatever may be 
 their character or condition. He is not obliged to receive 
 one who is not able to pay for his entertainment. As he is 
 indictable if he usually harbor thieves, and is answerable for 
 the safe keeping of the goods of his guests, he is not bound 
 to admit one whose notorious character as a thief furnishes 
 good reason to suppose that he will purloin the goods of his 
 guests, or his own. So, likewise, as he is liable if his house 
 is disorderly, he cannot be held to wait until an affray is 
 begun before he interposes ; but may exclude common brawl- 
 ers, and any one who comes with intent to commit an assault 
 or make an affray. And he may prohibit the entry of one 
 whose misconduct in other particulars, or whose filthy con- 
 dition would subject his guests to annoyance. He has aright 
 to prohibit idle persons and common drunkards from enter- 
 ing, and to require them and the others before mentioned to 
 depart if they have already entered. i\.nd any person enter- 
 ing not for a lawful purpose, but to do an unlawful act — as 
 to commit an assault upon one rightfully there — will be 
 deemed a trespasser.^ 
 
 ' Hager v. Danforth, 30 Barl). 16; reversing 8. c. 8 How. 435. 
 
 ' O'Hara v. King, 52 111. 303. 
 
 ^ Hawk. Cr. L. ch. 78, § 1 ; Bac. Abr. Tit. luus ; Story on Bailment, § 307.
 
 § 175. EIGHT OF INNKEEPER TO EXPEL PERSONS. 155 
 
 § 175. As an innkeeper is bound to admit travelers 
 under certain limitations, he may likewise be held, under 
 proper limitations, to admit those who have business with 
 them as such. This may be considered as derived from the 
 right of t|ie traveler. There may be such connection be- 
 tween travelers and those engaged in their conveyance, that 
 the latter, although noli specially sent for, may have a right 
 to enter a common inn ; or such that the landlord, if he give 
 a general license to some of those whose business is connected 
 with his guests, in their character as travelers, cannot law- 
 ftdly exclude others pursuing the same business, and who 
 enter for a similar object. There seems to be no good reason 
 why the landlord should have the power to discriminate in 
 such cases, and to say that one shall be admitted and another 
 excluded, so long as each has the same connection with his 
 guests, the same lawful purpose, comes in a like suitable 
 condition, and with as proper a demeanor, any more than he 
 has the right to admit one traveler and exclude another 
 merely because it is his pleasure. If one came to injure the 
 house, or if his business operated directly as an injury, that 
 would present a diiferent question. And perhaps there may 
 be cases in which an innkeeper may have a right to exclude 
 all but travelers and those who have been sent for by them.^ * 
 
 ' Markham v. Brown, 8 N. Hamp. 523. 
 
 * In the case here cited, which was an action against a stage driver and stage 
 proprietor for entering the plaintiff's house, being a common inn, and making a 
 disturbance there, the court stated the law as follows: "The defendant had 
 clearly a right to estal>ish a line of stage coaches, and to go to the plaintiff's inn 
 ■with travelers, and he might, of course, lawfully enter it for the purpose of 
 leaving their baggage and receiving his fare. And we are of opinion that, so 
 long as others were permitted to do the same, the defendant had an equal and 
 lawful right, notwithstanding any prohibition by the plaintiff, to enter the 
 plaintiff's inn for the purpose of tendering his coach for the use of travelers and 
 soliciting them to take passage with him, and for that purpose to go into the 
 common public rooms of the inn where guests were usually placed to await the 
 departure of the stages, although he was not requested by sucli guests ; provided 
 there was a reasonable expectation that passengers might be there, and he came 
 at a suitable time, in a proper manner, demeaned himself peaceably, and re- 
 mained no longer than was necessary, and was doing' no injury to the plaintiff. 
 But the defendant might forfeit this right by his ..misconduct, so that the 
 plaintiff might require him to depart, and expel him; and if, by reason of 
 several instances of mis'conduct, it appeared to be necessary, for the protection 
 of his guests or of himself, the plaintiff might prohibit the defendant from enter- 
 ing again until the ground of ajjpreheusiou was removed. Thus, if affrays or
 
 156 ASSAULT AND BATTERY. §§ 17G, 177. 
 
 § 170. If a person conducts himself in a disorderly man- 
 ner in a public house, and the landlord requests him to de- 
 part, and he refuses to do so, the landlord is justified in lay- 
 ini^ hands on him to put him out.^ If while the landlord 
 has hold of him to put him out, he lays hands on the land- 
 lord, this is an assault, and the latter may repel force by 
 by force ; ^ and the landlord will be justified although he 
 does not succeed in ejecting him.^ Trespass for assaulting 
 the plaintiff and striking him with a bludgeon, and with the 
 said bludgeon striking and j)ushing him down to and upon 
 the ground : pleas, first, not guilty ; secondly, as to assaulting, 
 beating, and ill treating the plaintiff; that the defendant was 
 the possessor of a public house, that the plaintiff made a great 
 noise and disturbance therein, and obstructed the business, 
 whereupon the defendant requested him to cease from mak- 
 ing such noise and disturbance, and to leave the house, which 
 he refused to do, whereupon the defendant, in defense of his 
 possession, molliter mantis imposuit, to remove the plaintiff, 
 and did remove him out of the house ; thirdly, as to assault- 
 ing, beating and ill treating the plaintiff, son assault demesne; 
 replication to the tAvo latter pleas, de injuria. At the trial, 
 the judge directed the jury that even though the plaintiff 
 assaulted the defendant first, yet if the defendant struck the 
 plaintiff with a bludgeon, he was not justified on the plead- 
 ings. It was held that this was a misdirection.* 
 
 § 177. If a person without committing any assault, make 
 such noise or disturbance in a public house as would create 
 
 quarrels were caused through his fault, or he was noisy, disturbing the guests in 
 the house, interfered with its due regulation, intruded into the private rooms, 
 remained longer than was necessary after being requested to depart, or other- 
 wise abused his right, as by improper importunity to guests to induce them to 
 take passage with him, the plaintiff would have a right to reform that and, if 
 necessary, to forbid the defendant to enter, and treat him as a trespasser if he 
 disregarded the prohibition.'' 
 
 ' Howell V. Jackson, 6 C. & P. 723 ; Webster v. Watts, 11 Q. B. 311 ; IT L. J. 
 73. 
 
 ^ Howell V. Jackson, supra. 
 
 ' Moriarty v. Brooks, 6 C. & P. 684. * Howell v. Jackson, supra.
 
 § 177. RIGHT OF INNKEEPER TO EXPEL PERSONS. 157 
 
 alarm, and disquiet tLe neigliborhood and the persons passing 
 along the adjacent street, this would be such a breach of the 
 peace as would not only justify the landlord in turning the 
 person out of the house, but also in immediately giving him 
 into the custody of a peace officer, provided that this had oc- 
 curred in the presence of the officer. It was accordingly held 
 to be a good plea in justification to a declaration for assault- 
 ing and seizing the plaintiff and forcing him to go as a pris- 
 oner from a public house to a police station, that the defend- 
 ant was lawfully possessed of a house being a tavern, <fec., 
 that the plaintiff came into the house and made a disturb- 
 ance, and assaulted the defendant and others there, and after- 
 wards stood and remained in the public highway, near and 
 opposite to the door of the said house, and made a disturb- 
 ance there, and used menacing language to the defendant 
 and his family then in the said house and within hearing, 
 and that by reason of such the plaintiff's cpnduct, while he so 
 stood, &c., many persons while he so stood, &c., congregated 
 in the said highway, near to, and opposite, <fec., and made a 
 noise, disturbance and riot in the said highway, near, <fec., in 
 breach of the peace and to the obstruction of the defendant's 
 business, and of the said highway ; and at the time of the 
 removal afore mentioned, the plaintiff' persisted in so stand- 
 ing, &c., making such noise, <fec., and by reason of his so 
 standing, &c., making, &c., was causing many people to con- 
 gregate in the said highway, opposite and near to, &c., in 
 breach of the peace and to the obstruction of the said high- 
 way, although before such removal, and while he was so 
 standing, <fec., making, <fec., he was requested by the defend- 
 ant to depart, &c., and to cease from making such noise, &c. ; 
 wherefore the defendant, in order to restore and preserve the 
 peace, and to get rid of the nuisance so occasioned by the 
 plaintiff, just V)efore the time when, &g., gave the plaintiff in 
 charge to A. B,, a constable, and required A. B. to remove 
 the plaintiff and deal with him according to law ; and A. B. 
 then being such constable, thereupon removed the plaintiff 
 and took him to the police station, and detained him there.
 
 158 ASSAULT AND BATTERY. § 178. 
 
 to be dealt with according to law, and examined by a justice 
 of tlie peace, and for the purpose of so doing, and in so 
 doing, committed the trespasses.^ 
 
 9. Expiihion from religious meeting. 
 
 § 178. A religious society may lawfully prescribe sucli 
 rules as they think proper for keeping order during public 
 worship, and may use necessary force to eject a person mak- 
 ing a disturbance. ^ But the offender must first be requested 
 to retire ; though it is not necessary to show that the dis- 
 turbance was wilful.'^ Wall v. Lee^ was an action for assault 
 and battery alleged to have been committed in a Roman 
 Catholic church. The plaintiff was a member of the congre- 
 gation, and also a pewholder. The defendant, Gorman, was 
 a member of the same congregation. The defendant, Lee,, 
 was a Roman Catholic clergyman and j)astor of the church. 
 He rented out the pews, conducted the religious services, and 
 had the exclusive charge of the church edifice, the right of 
 property in which was in the bishop. On Sunday there was 
 di™e service in the church, conducted, as usual, by the de- 
 fendant Lee. In the course of his sermon he alluded, with- 
 out naming him, to some membef of the congregation who 
 had young ladies at his house, and drinking and dancing on 
 Saturday night, which lasted until some time into the morn- 
 ing of Sunday, and that some of the party became intoxi- 
 cated. These revels and practices the preacher condemned 
 as unworthy pastimes. When the sermon was closed, and 
 before the congregation was dismissed, the defendant Lee 
 came down from the pulpit to take up a collection. It was 
 the custom for the pastor to call upon each member of the 
 church in his seat and personally solicit his subscription oi* 
 contribution. The pastor came to the plaintiff's pew, and 
 solicited his contribution. The j^laintift' immediately rose 
 
 ' Ibid. ; seej'os^, § 315. = McLain v. Matlock, 7 Ind. 525. 
 
 ' Ballard v. Bond, 1 Jur. 7. " 31 N. Y. 141.
 
 § 178. EXPULSION FROM RELIGIOUS MEETING. 159 
 
 from Ills seat, and in a voice louder than usual began to in- 
 terrogate the defendant in regard to what he had said about 
 the dancing, and stated that what had been said was false, 
 and demanded the name of the defendant's informer. The 
 defendant requested him to sit down or go out of the church ; 
 to w^hich the plaintiif replied that he would not go out for 
 him or any other man, until he got an explanation. The 
 defendant again told him to sit down, and he said he would 
 not. The defendant Lee then took him by the collar of the 
 coat, and attempted to put him out, and failed. He then 
 called for aid to remove the plaintiff from the church, and 
 the defendant Gorman came to his assistance. Both of them 
 took hold of the plaintiff's coat collar, and endeavored, by 
 pulling him from the pew, to remove him from the church. 
 The plaintiff resisted, and they were unable to effect their 
 purpose, and so desisted. There was no striking. At the 
 trial in the court below-, the jury, under the charge of the 
 judge, found a verdict for the plaintiff of $200. The judge, 
 among other things, charged the jury, that in order to justify 
 the removal, or attempt at removal, it must be made to ap- 
 pear that the person so forcibly removed, or attempted to be 
 removed, was guilt 5^ of w^ilfully disturbing the meeting. The 
 verdict w^as, how^ever, set aside by the Court of Appeals. * 
 
 * In Wall V. Lee, siqyra, the New York Court of Appeals, per Davies, J., in 
 reversing the judgment, said; "The fact of disturbance, and refusing to depart 
 upon request, were the essential and only elements necessary to a justification of 
 the trespass and assault. There is not an intimation in any of the cases that the 
 disturbance must be wilful; and no such qualification of the oflfense has ever 
 been deemed requisite to justify the removal or attempted removal of the 
 offender. The precedents of pleas contain no countenance of the idea that the 
 noise or disturbance which justifies the molUter manus imposuit to turn the 
 off'endcr out, must be wilful. There was no warrant, therefore, in that part of 
 the charge of the learned justice to the jury, that to justify the removal or 
 a"ttempted removal of the plaintiflf, they must be satisfied that he was guilty of 
 a wilful disturbance of the meeting. If it had been a proceeding to convict the 
 plaintitf under the statute, then this rule of evidence would have been appro- 
 priate; and tlie error of the learned justice consists in the position that the same 
 evidence was requisite to justify a removal or attempted removal, as would have 
 been required for a conviction under the statute. * * * Religious meetings 
 would lose all solemnity and usefulness if turned into halls of disputation, and 
 any and every one could call upon the minister for explanation of his sermons, 
 or be permitted to engage in controversy with him pending the services. Such
 
 160 ASSAULT AND BATTERY. § 179. 
 
 10. Expulsion from lylace of public amusement 
 
 § 179, The sale of a ticket of admission to a place of 
 public amusement is a license to the purchaser of the ticket 
 to enter and remain during the performance. But the license 
 may be revoked before tlie purchaser has taken his seat, 
 who, if he remain and refuse to de^^art upon request, becomes 
 a trespasser, and may be removed by the employment of so 
 mucli force as his resistance renders necessary.^ * To an ac- 
 tion for assault and false imprisonment, the defendant pleaded 
 that, at tke time of the supposed trespass, the plaintiff was 
 in the close of E., and that the defendant, as the servant of 
 E., and by his command, molliter mantis imposuit on the 
 plaintiff to remove him from the close, which was the tres- 
 pass complained of. The plaintiff replied that he was in 
 
 exhibitions would be most unseemly, and convert our churches into arenas for 
 controversy and ill-feeling. It is most appropriate that the minister or priest 
 should preserve order, and rebuke all violations of it. As the acknowledged 
 presiding officer of the meeting, it is liis duty to check all attempts to interrupt 
 its order, quiet, and solemnity; and for this purpose, he unquestionably has full 
 power and authority to call upon others to aid him, or direct them to remove the 
 offender. In this sense, therefore, he has a greater right to enforce order, and 
 use force for that purpose, than any other member of the congregation." 
 
 In a recent case in Massachusetts it was held that the sexton of a church 
 whose duty it is to take charge of, and conduct funerals there, may lawfully 
 eject from the church an undertaker who, upon being requested to desist and 
 leave, refuses, and persists in unauthorized intrusion (Com. v. Dougherty, 107 
 Mass. 243). 
 
 ' Burton v. Scherpf, 1 Allen, 133; Nettleton v. Sikes, 8 Mete. 34; Claflin v. 
 Carpenter, 4 lb. 580; Giles v. Simonds, 15 Gray, 441_. 
 
 * The remedy of the buyer of tiie ticket in such case is an action to recover 
 the money paid, and damages for breach of contract. 
 
 In Burton v. Scherpf, supra, the general proposition that a parol license by 
 the owner of real estate to enter or do any particular act upon it, may commonly 
 be revoked at any time before the object and purpose for which it was conceded 
 has been fully availed of or wholly accomplished, was not disputed by the 
 plaintifi". But he claimed that as the contract under which his license was de- 
 rived was either wholly or in part executed, and as he was in the actual enjoy- 
 ment of the privilege conferred upon him at the time when the defendant under- 
 took to revoke it, the right of revocation was lost, and could no longer be 
 asserted. Th^'s claim was founded upon the clear and well-recognized distinc- 
 tion between a mere license, which neither passes any interest, nor alters or tran- 
 fers property in anything, but only makes an action lawful which would other- 
 wise have been unlawful; and a license coupled with a grant, or arising from a 
 sale of property to be taken and carried from the land where it is situate or upon 
 which it is placed. In the latter case, it is irrevocable so far as the contract is 
 executed (Kuggles v. Lesure, 24 Pick. 187; Hewlins v. Sliippam, 5 B. & C. 221; 
 Thomas v. Sorrell, Vaughan, 330). 
 
 I
 
 § 179. EXPULSION FROM PLACE OF PUBLIC AMUSEMENT. 161 
 
 the close by the leave aud license of E., which was traversed 
 by the rejoinder. The evidence was that E. was steward of 
 the Lancaster races ; that tickets of admission to the grand 
 stand were issued with his sanction, and sold for a guinea 
 each, entitling the holders to come into the stand and the 
 inclosure around it; that the plaintiff bought one of the 
 tickets, and was in the inclosure during the races ; that the 
 defendant, by the order of E., desired him to leave, and on 
 his refusing to do so, the defendant, after a reasonable time 
 had elapsed for his quitting, put him out, using no unneces- 
 sary violence, but not returning the guinea. It was held 
 that the jury were properly directed to find the issue for the 
 defendant.^ McCrea v. Marsh ^ was an action for an assault 
 in forcibly excluding the j^laintiif from a theater in Boston, 
 on account of his color. It appeared that the plaintiff 
 having bought the usual ticket, offered it to the door-keeper 
 in attendance at the head of the staircase leading to the 
 " family circle," and that the door-keeper, acting under the 
 orders of the defendant, forcibly prevented his entrance. 
 The Supreme Court held that it was correctly ruled at the 
 trial in the Superior Court that the plaintiff could not main- 
 tain the action."^ 
 
 ' Wood V. Leadbitter, 13 Mees. & W. 838. ■ 13 Gray, 211. 
 
 * In McCrea v. Marsh, supra, the court said: "Assuming that the plaintiff, 
 by the purchase of the ticket from the defendant, obtained permission to enter 
 the family circle in the Howard Athengeum in his own person, and occupy a 
 place there during the exhibition, yet it was only an executory contract. It was 
 a license legally revocable, and was revoked before it was in any part executed. 
 After it was revoked, the plaintifl''s attempts to enter were unwarranted, and the 
 derendant rightfully used the force necessary to prevent his entry. The plaintiff 
 is, doubtless, entitled to recover in an action of contract tlie money jiaid by him 
 for the ticket, and all legal damages which he sustained by the breach of the 
 contract implied by the sale and delivery of the ticket'' (citing Wood v. Lead- 
 bitter, 13 M. & W. 838; Adams v. Andrews, 15 Ad. & El. N. R. 284; Roffey v. 
 Henderson, 17 Ad. & El. N. R. 574; Bridges v. Purcell, 1 Dev. & Bat. 492; Foot 
 V. New Haven & Northampton Co. 23 Conn. 214 ; Jamieson v. Millemann, 3 
 Duer, 255). 
 
 By a private act of Parliament, the shire hall of G. was vested in the justices 
 of the peace for the county, in trust to allow courts of justice to sit there, &c., 
 and to permit and suffer it to be used for such other public purposes as a major 
 part of the justices in session should direct. The hall had always been used for 
 the holding of the county musical festivals, but there was no evidence that the 
 justices had under the act so directed it to be used. It was held that the stew- 
 ards of one of the nhisical festivals had such a possession of the hall that they 
 might justify turning out an intruder (Tliomas v. Marsh, 5 Car. & P. 59G). 
 Vol. I.— 11
 
 ] 62 ASSAULT AND BATTERY. § 180. 
 
 11. Forcible removal from i^uhlic conveyance. 
 
 § 180. A corporation may become liable to respond in 
 damages for an assault and battery committed by its serv- 
 ants in tlie execution of its orders ; ^ ^' and it may also be so 
 charged, whenever the personal violence was the probable 
 and natural result of the orders given, within the rule that 
 a master is liable for the wrongful acts of his servant com- 
 mitted in the master's employment, although, in so doing, 
 the servant has departed from the instructions of his master.^ 
 
 ' Eastern R. R. Co. v. Broom, 6 Exch. 314; 15 Jur. 297; 20 L. J. Exch. 196; 
 Goffv. Gt. North. R. R. Co. 80 L. J. Q. B. 148; Chicago &c. R. R. Co. v. Mc- 
 Carthy, 20 111. 385 ; Alton and Chicago R, R. Co. v. Dalby, 19 lb. 353 ; Jackson 
 V. Second Av. R. R. Co. 47 N. Y. 274; Passenger R. R. Co. v. Young, 21 Ohio, 
 518. 
 
 ' Higgins v. Watervliet T. Co. 46 N. Y. 23 ; ante, § 42, et seq. 
 
 * In Smith on Master and Servant, 157, it is said if the act be done in the 
 execution of the autliority given him by his master, the latter will be holucn for 
 wanton acts, if done in order to perform his orders. 
 
 A person engaged in the business of transporting passengers cannot by an 
 agreement exempt himself from liability for any injury resulting from any wilful 
 or wanton misconduct of his own. That a party should be permitted to contract 
 that he may with impunity inflict wanton injury ujjon others is repugnant to 
 every sentiment of justice and propriety. 
 
 The principle js, that parties cannot contract that they themselves may with 
 impunity be guilty of wilful misconduct, or of that degree of recklessness which 
 is its equivalent. To this extent, do doubt, carriers of passengers are precluded 
 from absolving themselves by contract from tiieir responsibilities. But the rule 
 has no application to contracts exempting them from liability for the acts of 
 third persons. There is some difficulty in ap])lying these principles to railroad 
 companies, on account of the artiticial nature of corporations. As they can act 
 only through agents, it may be said, on the one hand, that every act of their 
 authorized agents, and, on the other, that no such act, is to be regarded as a 
 direct act of the corporation. But a distinctive is, no doubt, to be made be- 
 tween the directors or managing officers of a corporation and its subordinate 
 agents. As the former exercise all the powers of the corporation, and are its 
 only direct medium of communication with outside parties, they must, in respect 
 to all its external relations, be considered as identical with the corporation itself. 
 No contract, therefore, can exempt a railroad company from liability for the 
 wilful or wanton misconduct or gross recklessness of its directors. The rule is 
 not confined to common carriers and other bailees, but, from its nature, must be 
 general in its application (Perkins v. The N. Y. Centr. R. R. Co. 24 N. Y. R. 196, 
 per Selden, Ch. J.) 
 
 There is a degree of recklessness which can scarcely be distinguished from a 
 wanton or wilful disregard of duty. It is equally reprehensible, and its conse- 
 quences are in general held to be the same. It is to this degree of negligence 
 to which Welles, J., in Parsons v. Mouteath, 13 Barb. 353, seems to refer when 
 he says that "a contract which should excuse the carrier from liability for dam- 
 . age or loss arising from his own fraud or gross negligence would not be en- 
 forced." And see Jones on Bailm, 11 ; Wells v. The Steam Nav. Co. 4 Seld. 375; 
 Catlin v. The Springfield Ins. Co. 1 Sumn. 434 ; Thurtell v. Beaumont, 1 Bing. 
 339.
 
 § 181. FORCIBLE REMOVAL FROM PUBLIC CONVEYANCE. 163 
 
 In Greenwood v. Seymour/ where the conductor of a public 
 conveyance ejected a passenger for what he deemed improj^er 
 conduct, and, in doing so, committed acts of personal vio- 
 lence to such a degree as to cause great injury to the party, 
 the principal was held liable therefor. The argument was 
 pressed upon the court that the conductor was a trespasser, 
 and that the principal should not be held for a trespass com- 
 mitted by his servant ; but the court held otherwise, when 
 the act complained of was done in the execution of the 
 duties assigned to him by his master. That was an action on 
 the case. And, in Sandford v. The Eighth Av. R R. Co.,^ it 
 was held that the master was responsible for the act of his 
 servant in wrongfully ejecting a passenger from the train, and 
 responsible also for any acts of aggravation in doing the act 
 causing an injury to the passenger. This judgment was 
 based upon the principle that a part of the duties of the 
 servant was to exclude from the cars such passengers as re- 
 fused to pay fare, or to comply with the regulations adopted 
 by the company ; and that having authority from the master 
 to perform the acts, all such acts done by the servant were 
 to be regarded as done by virtue of this authority. 
 
 § 181. If, however, the person committing the assault 
 acted beyond the scope of his authority, the corporation is 
 not liable. Where, therefore, a station-master arrested a 
 railway passenger in charge of a horse, for not paying for its 
 transportation, and the railway company could not lawfully 
 arrest a person for such non-payment, but only detain the 
 property, it was held that, as the station-master exceeded his 
 authority, the company was not responsible.^ A female de- 
 siring to get out of a street car, stepped to the platform and 
 asked the conductor to stop the car, declaring that she would 
 not alight until the car had stopped ; whereupon he threw 
 her violently on to the pavement and seriously injured her. 
 
 ' 4 Law Times, N. S. (18G1), 835. " 23 N. Y. 343. 
 
 ' Poulton V. Lond. & S. Western R. R. Co. 3 L. R. Q. B. 534.
 
 1G4 ASSAULT AND BATTERY. § 182. 
 
 It was held that the company was not liable.^ In an action 
 for forcibly ejecting the plaintiff from railroad cars, upon his 
 refusing to pay the fare demanded, the plaintiff claimed that, 
 for the purpose of removing him from the cars and keeping 
 him oif, the conductor called to his assistance a servant of 
 the defendants ; that thereupon a struggle ensued between 
 the plaintiff on one side, and the conductor and his assistant 
 on the other, and that before the termination of the struggle, 
 and immediately upon the j)laintiff's coming ^from the car to 
 the ground, the servant intentionally kicked him in the face. 
 The defendants claimed that such kick, if given, was without 
 the knowledge, and without any particular or express direc- 
 tion, of the conductor or any other officer or agent of the 
 company. The judge having instructed the jury that, upon 
 the facts as claimed by the plaintiff, the defendants were 
 liable for the kick, the Supreme Court granted a new trial 
 for misdirection.^ "^ 
 
 § 182. A question with respect to responsibility has 
 arisen where the order is of such a character that, if properly 
 done, it may be executed in a manner which, in law, would 
 
 ' Isaacs V. Third Av. R. R. Co. 47 N. Y. 122. 
 
 ^ Crocker v. The New Lond. &c. R. R. Co. 24 Conn. 249; and see Milwaukee 
 &c. R. R. Co. V. Fiuney, 10 Wis. 388. 
 
 *■ In Crocker v. The New London &c. R. R. Co. supra, the court said: " Tlie 
 jury should have been instructed, in substance, that if the kick was given by tlie 
 servant for the puqiose of keeping the plaintiflf off the car, and was, under the 
 circumstances, but the exercise of necessary and proper force for that pui'pose, 
 the defendants were responsible for it, provided the plaintiff had been wrong- 
 fully put out and had a right to re-enter. But if such kick was not necessary 
 and proper, for the purpose of keeping the plaintiff' off, and was given by the 
 servant intentionally, without the kuov>ledge or direction of the conductor or 
 any other officer or agent of the company, the defendants were not liable for it. 
 In this case, the servant was called to assist the conductor, and may be consid- 
 ered as having a general order or command to keep the plaintiff off'. But that 
 order authorized the employment of none but usual and legal means for the pur- 
 pose; and the intentional employment of such an unusual, unnecessary and un- 
 justitiable measure as a kick in the face, could not have been contemplated by 
 the conductor, and, in the absence of proof, the law will not deem it authorized 
 by him." 
 
 The defendant hired a steamboat for an excursion to R., the owner's captain 
 navigating her. It was held that the defendant did not have such a possession 
 as to justify him in forcibly turning out a stranger whom the captain had allowed 
 to come on board (Dean v. Hogg, 10 Bing. 845; 4 M. & Scott, 188; 6 Car. & 
 P. 54).
 
 § 182. FORCIBLE REMOVAL FROM PUBLIC CONVEYANCE. 1G5 
 
 constitute no breach, of the peace, nor subject any pai*ty to 
 any liability for executing it. In cases of this character, 
 where the agent, in the execution of the order, does it with 
 such violence and in such a careless or wanton manner as to 
 inflict an unjustifiable personal injury upon the person or- 
 dered to be seized and removed, the position has sometimes 
 been taken and maintained, by adjudicated cases, that the 
 principal is not liable at all, or, if liable, that a claim for 
 damages can only be enforced in an action on the case.^ The 
 more consistent rule would seem to be, that where a corpora- 
 tion gives an order to a servant to do an act which implies 
 the use of force and personal violence to others, if the serv- 
 ant, in the execution of that service, goes beyond proj^er 
 limits as to the use of force, and commits a trespass by unjus- 
 tifiable violence, and inflicts an injury by a blow or a kick 
 upon the person attempted to be removed, the corporation 
 will be liable to an action of trespass therefor.^ In Hewett 
 V. Swift,'^ the president of a railroad comj)any had directed 
 the servant of the company to keep boys out of the depot, 
 pursuant to a regulation of the comj)any, and the servant, in 
 removing a boy about fourteen years of age, who refused to 
 leave, kicked and severely injured him. It was held that a 
 joint action of trespass might be maintained against the 
 company and its servant. In an action against a railway 
 company for the act of the conductor in ejecting the plaintiff 
 from the cars, the judge at the trial in the Common Pleas 
 charged the juiy that if the conductor, in j)utting the plaintiff" 
 out of the cars, acted by direction of the company, the com- 
 pany were liable ; but that 'if the company directed the con- 
 ductor to put out of the cars j^tassengers who had not paid 
 their fare, and he put out passengers who had paid their 
 fare, the company would not l^e responsible for his acts. A 
 
 ' Hibljard v. The K Y. & Erie R. R. Co. 15 N. Y. 455 ; St. Louis, Alton & 
 Chicago R. K. Co. v. Dalby, 19 111. 353. 
 
 " Ramsden v. Boston &c. R. R. Co. 104 Mass. 117; Phila. & Reading R. R. v. 
 Derby, 14 How. 4G8. ' 
 ' 3 Allen, 420.
 
 166 ASSAULT AND BATTERY. § 183. 
 
 verdict Laving been found for the plaintiff, tlie Supreme 
 Court, in refusing to disturb it, said : " The instructions as 
 to the liability of the defendants for the acts of their servant 
 were favorable to the corporation. The only point upon 
 which a doubt might be suggested, would be upon the 
 second clause of the instructions, that if the company author- 
 ized the conductor to put out of the car passengers who had 
 not paid their fare, and he put out persons who had paid 
 their fare, the company Avould not be responsible for his acts. 
 If a passenger, who has paid his fare and conducts himself 
 well, is removed by the servant of the company having 
 charge and control of the train, it is difficult to see how the 
 company could escape responsibility for his act." ^ * It has 
 been held that a railroad company is liable for blows unjus- 
 tifiably struck by the conductor's assistants in ejecting a per- 
 son from the train, notwithstanding the blows are struck con- 
 trary to the conductor's orders.^ 
 
 § 183. The right and duty of railway companies to estab- 
 lish and enforce reasonable regulations for the government 
 
 ' Moore v. Fitchburg K. R. 4 Gray, 465. 
 
 "" Coleman v. N. Y. & New Haven E. R. Co. 106 Mass. 160. 
 
 * In an action against a railway company for an assault, laying as special 
 damage the loss of a pair of race-glasses, which the plaintiff left behind him in 
 a railway carriage when he was forcibly removed therefrom, with a count in 
 trover, it appeared that the plaintiff" was traveling with other passengers on a 
 railroad, and that, upon the tickets being collected, there was found to be a 
 ticket short; that the plaintiff' was charged by the conductor of the train with 
 not having a ticket, and, on his refusal to pay the fare or leave the carriage, he 
 was put out, without any unnecessary violence, by the oflScers of the company, 
 although he, in fact, had a ticket. There being no evidence that the glasses 
 had come to the possession of any of the company's servants, it was held that 
 the plaintiff could not recover for their loss (Glover v. The London & South 
 Western R. R. Co. 3 L. R. Q. B. 24). ♦Cockburn, C. J. : "The case would 
 be very diff"erent, in my judgment, if the glasses had fallen from the plaintiff's 
 person as the immediate result of any violence offered to him. But the jury 
 must be taken to have negatived — and rightly, as it seemed to me — any violence 
 beyond that necessary to remove the plaintiff from the carriage, so that it was 
 not the case of a man being dragged out of a carriage under circumstances which 
 rendered it impossible for him to take the property with him which he had 
 under his own personal protection. * * * j^q doubt, if he had applied to be 
 allowed to get the glasses, or asked one of the passengers to hand them to him, 
 this would have been done. He has, therefore, only himself to blame that the 
 glasses were left in the carriage, and the loss was not the necessary consequence 
 of the defendant's act, but owing to the plaintiff's own negligence or careless- 
 ness. This head of damage is therefore too remote, and the plaintiff cannot, 
 recover it."
 
 §184. FORCIBLE REMOVAL FROM PUBLIC CONVEYANCE. 1C7 
 
 of their lines, have been frequently recognized by the courts 
 in this country. The safety and security of the traveling 
 public, as well as the interest of the roads themselves, require 
 that such right and duty should exist and be enforced. Upon 
 that ground, it has been held that the company and its servants 
 may not only exclude those who refuse to pay their fare, or 
 to comply with such reasonable regulations as are made for 
 their government, but that they may also rightfully inquire 
 into the habits or motives of those who claim the right of 
 passage. ^ * 
 
 § 184. When a person buys a railroad ticket, the ticket 
 implies a contract that he is to be carried in the usual man- 
 ner in which passengers are carried who have tickets of the 
 same kind, although the purchaser is ignorant of the rules 
 and regulations of th« company.^ A railroad company had 
 two lines of road between the same points, on the longer of 
 which more was charged than on the other. A person hav- 
 ino; bousrht a ticket for the shorter route, took a train on the 
 longer one. The conductor told him that he could only be 
 taken to a certain point by that train, unless he paid addi- 
 tional fare, which refusing to do, he was put off. It was held 
 that the person was lawfully ejected from the train. ^ AVhere 
 the condition of a commutation ticket was that it should be 
 shown to the conductor on every passage, and if not shown 
 the regular fare should be paid, and the holder of the ticket 
 by mistake left it at home, and so told the conductor, and 
 refused to pay the fare, it was held that he was rightfully 
 ejected from the cars. * In a case subsequently tried in the 
 same court, the plaintiff was a commuter on the New York 
 
 ' Stephen v. Smith, 29 Vt. 160, per Isham, J., citing Jencks v. Coleman, 3 
 Sumner, 221, and Cora. v. Power, 7 Mete. 596. 
 
 = Cheney v. The B. & M. R. R. Co. 11 Mete. 121. 
 = Adwin V. N. Y. &c. R. R. Co. 60 Barb. 590. 
 
 * Downs V. N. Y. &c. R. R. Co. 3G Conn. 287. 
 
 * The want of instructions in relation to the right of a railroad conductor to 
 remove a passenger from the cars if intoxicated or using profane language, is not 
 the subject of exception, unless the instruction was asked for, and refused at the 
 trial (Moore v. Fitchburg R. R. 4 Gray, 465).
 
 168 ASSAULT AND BATTERY. §§ 185, 186. 
 
 and New Haven Railroad, and was known to be sucli by the 
 conductor ; and the latter knew that the plaintiff's ticket was 
 still good. The plaintiff had his ticket when it was de- 
 manded, but could not find it, and he so informed the con- 
 ductor, and refusing to pay the fare, he was ejected from the 
 train. It was held that the plaintiff was entitled to ride as 
 long as there was any reasonable expectation of finding the 
 ticket during the trip ; and that if the defendants had the 
 right to eject the plaintift' from the train, they had no right 
 to do it elsewhere than at some regular station. '^ 
 
 § 185. When a railroad ticket contains no special condi- 
 tion, but by a rule of the company, such a ticket entitles the 
 holder to ride only on certain trains, of which rule he is un- 
 informed, he cannot lawfully be ejected from a train which 
 he has entered contrary to such rule. ^ Where, however, the 
 train does not stoji at the station for which the passenger has 
 purchased his ticket, though it has on previous occasions 
 sometimes stopped there, and the passenger refuses to pay 
 additional fare to the regular stopping place, he may law- 
 fully be ejected. ^ 
 
 § 186. A person on a railroad train who unreasonably 
 refuses to pay his fare, may be ejected forthwith without 
 being taken to a regular station. * To require his being put 
 oft" at some station on the road "would compel railroad com- 
 panies to carry a passenger to the station next to the one at 
 which he entered the train, which might, and doubtless would 
 often be the very point to which he desired to be taken, and 
 if the passenger wei*e unknown to the conductor, the com- 
 pany would be without remedy."^ But in Vermont, the 
 statute ^ provides that, " If any person shall refuse to pay his 
 fare, or shall be disorderly or drunk, or refuse to comply 
 
 * Maples V. N. Y. & New Havea R. R. Co. 38 Conn. 557. 
 "" Moroney v. Old Colony &c. R. R. Co, 306 Mass. 153. 
 
 ' Fink V. Albany &c. R. R. Co. 4 Lans. 147. 
 
 * McClure v. Pliila. &c. R. R. Co. 34 Md. 532. 
 
 * Ibid, per Grasou, J. « Ch. 26, § 52.
 
 § 188. FORCIBLE REMOVAL FROM PUBLIC CONVEYANCE. 1C9 
 
 with all the reasonable regulations of the corporation for the 
 government of the conduct of passengers, it shall be lawful 
 for the conductor of the train, and the servants of the cor- 
 poration, to put him out of the cars at any usual stopping 
 place the conductor may elect." Although the foregoing 
 statute does not expressly negative the right or forbid the 
 exercise of the power, at any other place on the line of the 
 road, yet by implication it restricts it to some one of the 
 stations or usual stopping places. 
 
 § 187. The right of a railway conductor to expel a per- 
 son from the cars for the reason that he will not pay his fare 
 when asked to do so, cannot lawfully be exercised in a man- 
 ner regardless of all circumstances. Where a passenger was 
 carried beyond the 2-)lace to which he had paid his fare, and 
 put off at a station live miles further on, in consequence of 
 which he was compelled to walk back through the rain, 
 whereby his health was seriously injured, it was held that 
 the company was liable therefor. ^ And where the conductor 
 of a freight train uj^on leaving the station neglected to ascer- 
 tain whether there were any passengers on the train who 
 had not procured tickets, and after proceeding a mile and a 
 half to a place where there was no station, ejected a passen- 
 ger, knowing him to be ill, it was held that a verdict in favor 
 of the passenger for $1,150 was not excessive.^ 
 
 § 188. A raih'oad company may be made to respond in 
 damages for forcibly ejecting a person from the cars while 
 the train is in motion, notmth standing such person has no 
 right on the train. ^ Where, in an action for injury caused 
 by being forcibly ejected from a railroad car while in motion, 
 it was proved that the conductor ordered the plaintiff to 
 leave the car, and at the same time made such a display of 
 force as to cause him to believe that he would be put off, and 
 that he thereupon jumped from the car, it was held that he 
 
 ' Mobile &c. R. R. Co. v. McArthur, 43 Miss. 180. 
 '^ Illinois &c. R. R. Co. v. Sutton, 53 111. 397 
 ' Law V. Illinois &c. R. R. Co. 32 Iowa, 534.
 
 170 ASSAULT AND BATTERY. §§ 189, 190. 
 
 > 
 
 was entitled to recover. -^ In a case in New York ^ it was 
 proved that the conductor of the defendants' car, ^vithout 
 arresting its motion, seized the phiintiif's intestate, and forci- 
 bly ejected him. The danger attending such an act was en- 
 hanced by other circumstances. It was in the night, and a 
 high bank of snow was thrown upon each side of the track. 
 No injuiy might have resulted if the expulsion had taken 
 place from the rear instead of the front of the car. As a 
 direct consequence of the conductor's act, the passenger was 
 injured so that he died ; and the act itself, under the circum- 
 stances, being necessarily attended with great danger, was 
 held to be without legal justification. 
 
 § 189. It is scarcely necessary to observe that one may 
 lawfully resist an attempt to expel him from a railroad train 
 in rapid motion, although he be liable to expulsion. As the 
 refusal of a passenger to pay fare will not excuse a homicide, 
 so it fails to justify any act which in itself puts human life 
 in peril ; and the passenger has the same right to repel an 
 attempt to eject him, when such attempt is accompanied with 
 hazard, that he has to resist a direct attempt to take his life.^ 
 So, if he be ejected with unjustifiable violence, he is not 
 bound to give the parties ejecting him notice of a secret in- 
 firmity for the purpose of inducing them to lessen the vio- 
 lence ; though it might be otherwise, if they were only 
 employing reasonable force to expel him.^ 
 
 § 190. The special condition which is frequently printed 
 on railroad tickets in reference to the time of their use has 
 given rise to considerable controversy.* Where such cases 
 
 ' Kline v. Central &c. R. R. 39 Cal. 587. 
 
 ■" Sandford v. The Eighth Av. R. R. Co. 23 N. Y. 343. 
 
 ^ Sandford v. The Eighth Av. R. R. Co. supra. 
 
 ' Coleman v. N. Y. & New Haven R. R. Co. 106 Mass. IGO. 
 
 * A railroad company is under a legal obligation to permit any persons to get 
 upon their cars, and to transport them to any place they desire to go upon the 
 line of the road, where the train is accustomed to stop, upon the payment of the 
 usual fare, and a compliance with all reasonable and proper rules and regulations 
 established by the company for the safety and convenience of the public and the 
 proper government and management of the road (Harris v. Stevens, 31 Vt. 79; 
 Com. V. Powers, 7 Mete. 596.)
 
 § 190. FORCIBLE REMOVAL FROM PUBLIC CONVEYANCE. 171 
 
 were free from wrongful intention on the part of the passen- 
 gers, the courts Avere at first inclined to give to all such 
 exceptions and reservations a liberal construction in favor of 
 public travel. But the later decisions ,have adopted a more 
 risrid rule. 
 
 In an action for assault and battery against a railroad 
 conductor for forcibly ejecting the plaintiff from the cars, it 
 appeared that the plaintiff took a seat in one of the passen- 
 ger cars on the New York and Erie railroad at Corning for 
 Elmira, and that two or three miles east of Corning he was 
 forcibly put oft' the train by the conductor and the other de- 
 fendants, employees on the cars. The only cause alleged for 
 the removal of the plaintiff' from the cars was his refusal to 
 pay to the conductor his fare for that trip. It was proved 
 that when the conductor demanded the fare, the plaintiff 
 produced and offered to him a ticket in the words and 
 figures following : " New York and Erie Railroad, Corning 
 to Elmira. Please keep this in sight. Good this trip only. 
 Oct. 19, 1854. No. 46. G. L. Dunlap." The ticket was not 
 mutilated, and the plaintiff told the conductor that his wife 
 had purchased it at the ofiice, and that it had not been used 
 by any one. The conductor refused to receive the ticket, on 
 the ground that it was dated several days previous. The 
 judge before whom the cause was tried, nonsuited the 
 plaintiff, ruling that the ticket was only evidence of the 
 plaintiff' 's right to ride in the next passenger train going 
 from Corning to Elmira after the purchase of the ticket ; 
 or, at all events, that the right was limited to the day on 
 which the ticket bore date, and that the ticket could not 
 be used on a subsequent day. The general term of the 
 Supreme Court, hoAvever, held that the ticket prima facie 
 was evidence of the plaintiff' 's right to that passage or trip, 
 and that the conductor had no right to demand fare and 
 refuse the ticket when oftered ; that, therefore, the plaintiff was 
 put off the train wrongfully, and the action well brought.^ ^" 
 
 ' Pier V. Finch, 24 Barb. 514; s. c. 29 lb. 170; Northern R. R. Co. v. Page, 
 22 Barb. 180. 
 
 * In Pier v. Finch, supra^ the court said : " The case is not embarrassed by
 
 172 ASSAULT AND BATTERY. § 190. 
 
 Beebe v. Ayres/ was an action against a railroad conduct- 
 or for forcibly ejecting the plaintiif from tbe cars. It ap- 
 peared that the plaintiff purchased a ticket at Newburgh, 
 which entitled him to ride from that place in a passenger 
 car on the New York and Erie Railroad to Addison. The 
 words, " Good this trip only," were on the ticket ; it was 
 dated Sept. 10, 1856, and the letters E, D, S, W were on 
 the corners of it. These letters, according to the rules of the 
 comj)any, were to be torn off by the conductors of the train 
 on which the plaintiff should ride as follows : The conductor 
 on the eastern division of the road was to tear oft' the letter 
 E ; the one on the Delaware division was to tear off the let- 
 ter D ; and the one on the Susquehanna division was to tear 
 
 any evidence of the custom of the company or of the conductors of the trains, 
 but turns wholly on the construction to be given to the ticket. The possession 
 of the ticket by the plaintiff was jn'ima facie evidence that he had paid the 
 regular price for it, and of his right, at some time, to be transported from Corn- 
 ing to Elmira on some passenger train ; and as it was unmutilated, the presump- 
 tion is that it had never been used for that purpose. The ticket then in the 
 plaintiff's hands, and on which he claimed the right to ride on that occasion, 
 was evidence of the agreement or undertaking of the corporation to transport 
 him to Elmira on its passenger cars, for a consideration by him paid. And the 
 precise question to be determined is whether upon the face of the ticket, and by 
 its terms, the undertaking was to carry him on any passenger train on which 
 they could conveniently transport him, and which he might choose to take at 
 any time subsequent to the purchase of such ticket; or whether the undertaking 
 was limited to some particular train, or within some definite period of time. It 
 does not appear at what time the ticket was purchased by the plaintiff, though 
 the presumption, I suppose, is that it was purchased at some time on the day on 
 which it bears date, but not at any particular hour of the day. It may have 
 been purchased, for aught we can know or presume, for this purpose before 
 either of the three trains passed eastward on that day, or after they had all 
 passed. The words which are supposed to limit the undertaking to some 
 specific train of cars, or period of time, and the only words which are claimed 
 to have that effect, are ' Good this trip only.' It is quite apparent, I think, that 
 these words have no reference to any particular day or hour whatever. They do 
 not relate to time, but to a journey. * '* * When the purchaser commences 
 his trip, and becomes a passenger, the ticket is good for that trip and no other; 
 and at the end of the trip the conductor has the right to demand, and the pas- 
 senger is bound to surrender, the ticket. The i:)assenger cannot use it for any 
 other trip, and has no longer any right to the possession of it. This construc- 
 tion gives full effect to the language, and works no injury to any one. * * * 
 It will be seen, I think, that 'this trip,' from Corning to Elmira, refers much 
 more naturally and properly to the journey of the plaintiff" from one point to the 
 other than to the passage of any particular train of cars over the whole road. 
 It limits the plaintift"'s right of passage to the triji which he commences and 
 undertakes to make under the contract, and his right to the possession of the 
 ticket, to the time when It is customary to surrender it according to the usages 
 •on that road." 
 - 1 28 Barb. 375.
 
 § 190. FOECIBLE REMOVAL FROM PUBLIC CONVEYANCE. 173 
 
 off the letter S. The plaintiff, by virtue of the ticket, rode 
 in the afternoon and night of the 16th of September, 1856, 
 upon the railroad as far west as Deposit, on the Delaware 
 division, and, before he arrived there, the conductors on the 
 train on which he rode had torn the letters E and D off of 
 the ticket. He staid at Deposit until the following day, 
 because, as he claimed at the trial, the conductor on the 
 eastern division of the road had told him he could stop there 
 and it would be all right. But he did not have the conduct- 
 or on the Delaware division indorse anything upon the 
 ticket to show his right to stop at Deposit, as he should 
 have done by the rules of the company. In the forenoon of 
 the next day, the plaintiff rode on an emigrant train, by 
 virtue of the ticket, without objection from the conductor of 
 the train, to Susquehanna, where another conductor took the 
 train. He then rode from that place, on the same train, to 
 Great Bend, but before he arrived there, the conductor who 
 took that train at Susquehanna tore the letter S off the ticket 
 and handed it back to the plaintiff'. The j^laiutiff left the 
 emigrant train at Great Bend, and waited there until the ex- 
 press train came up, and then got upon that. He did this, 
 as he testified upon the trial, because the conductor of the 
 emigrant train told him if he was in a hurry he had better 
 do so. After the express train left Great Bend, the defend- 
 ant, as conductor, demanded fare of the plaintiff, who pre- 
 sented the ticket to him, with the letter S torn oft'. The 
 defendant refused to accept the ticket, and told the plaintiff 
 that unless he paid the usual fare to him he should put him 
 off the train ; and the plaintift', refusing to leave the cars or 
 pay the fare, was forcibly ejected. A verdict having been 
 found for the plaintift', at the circuit, subject to the opinion 
 of the court at general term, it was held that the defendant 
 was entitled to judgment. 
 
 It has been recently decided in New York, that a rail- 
 road ticket having on its face " Good for this day only," 
 with the date, entitles the holder to ride in the company's 
 cars only on that day, notwithstanding the company's ticket
 
 174 ASSAULT AXD BATTERY. § 191. 
 
 agent after the ticket is bought, says that it will be good at 
 any time thereafter.^ And in Maryland it has been held that 
 a person who has bought a through ticket, over connecting 
 railways, has no right to remain over at an intermediate 
 point and afterward take another train and proceed to his 
 original destination, without further payment.^ 
 
 § 191. Where it is a rule of a raili'oad company that pas- 
 sengers soon after starting shall exchange their tickets with 
 the conductor for checks, the law will imply that the con- 
 tract on the part of the company is to convey persons over 
 their road provided they surrender their tickets to the con- 
 ductor when demanded, as required by the custom of the 
 road^ Under this contract, a person will not be entitled to 
 his passage in the cars without the surrender of his ticket ; 
 and his refusal to deliver up his ticket when demanded will 
 justify the conductor in exacting from him his fare in cash, 
 and on his refusal to pay his fare, in putting him out of the 
 cars. The ticket may be regarded as expressing only a part 
 of the agreement entered into between the parties. It does 
 not purport on its face to be a complete agreement. In all 
 such cases, the other parts of the agreement may be proved 
 by parol,^ In Loring v. Alborn,* tried in the Court of Com- 
 mon Pleas of Massachusetts, Loring, a passenger in raili'oad 
 cars on the Boston and Maine railroad, sued Alborn, the 
 conductor of the train, for putting him out of the cars, on 
 his refusing to give up his ticket. It was a rule of the road 
 that passengers must immediately, after the starting of the 
 train, surrender their tickets to the conductor. Mellen, J., 
 before whom the cause was tried, ruled that this regulation 
 of the road w^as reasonable ; and that the plaintiff had no 
 right to retain his ticket until he got near the end of his 
 route, even if he had not previously known of the existence 
 
 ' Boice V. The Hudson River R. R. Co. Gl Barb. 611; Barker v. Coflin, 31 
 lb. 556. 
 
 ^ McClure v. Phila. &c. R. R. Co. 34 Md. 542. 
 = The Northern R. R. Co. v. Page, 23 Barb. 130. 
 ' 4 Cush. 608; 1 Law R. N. S. 461.
 
 § 192. FORCIBLE REMOVAL FROM PUBLIC CONVEYANCE. 175 
 
 of such regulation ; and that on his refusal to give up his 
 ticket, the conductor was justified in ejecting him from the 
 cars. The case was carried to the Supreme Court, and 
 Fletcher, J., in delivering the opinion of the latter court, took 
 no exception to the ruling of Judge Mellen, in relation to the 
 right of the conductor to eject the plaintiif from the cars. 
 
 § 192. The courts have held that the discrimination in 
 fare (by a railroad company) when tickets are purchased at 
 the several stations, or when paid to the conductor in the 
 cars, is reasonable, as affording proper checks upon its ac- 
 counting officers, and which they have a right to enforce. 
 While the law requires of the company the adoption of such 
 regulations as are necessary for the safety and convenience 
 of passengers in their trains, they have also the right to 
 adopt such reasonable regulations as are necessary for their 
 own security ; and those regulations are to be mutually ob- 
 served. If they are not comj^lied with by passengers, the 
 company may not only refuse them admission within the 
 cars, but if they are within they may remove them.^ Hil- 
 liard v. GrookP was an action against a railway conductor 
 for forcibly ejecting the plaintiff from the train. It was 
 proved that the plaintiff took his seat as a passenger, about 
 seven o'clock in the evening, in the month of January ; that 
 shortly after the starting of the train, the defendant called 
 on the plaintiff for his ticket ; that the plaintiff, not having 
 a ticket, offered thirty-five cents for the fare, and upon the 
 defendant's telling him that the fare was forty cents, the 
 plaintiff refused to pay more than thirty-five ; that the de- 
 fendant soon afterwards demanded of the plaintiff the same 
 fare, tellin ■; Iiim that unless he paid it, he should be obliged 
 to remove him from the car ; and that the plaintiff still re- 
 fusing to pay the. forty cents, the defendant stopped the 
 train, and with the help of the engineer, forcibly put the 
 plaintiff out of the car, and went on, leaving the plaintiff on 
 the track. The judge before whom the cause was tried, 
 
 '^Stephen v. Smith, 29 Vt. 160. ' 34 N. Hamp. 230.
 
 176 ASSAULT AND BATTERY. § 193. 
 
 charged tlie jury that the defendant was not justified in 
 ejecting the plaintiff from the car, although he was the con- 
 ductor of the train, and the plaintiff unreasonably refused to 
 pay the additional fare; and a verdict having been found for 
 the plaintiff', it ^vas set aside for misdirection.'^' 
 
 § 193. Where the regulations of a railroad company re- 
 quire that passengers shall purchase their tickets before en- 
 tering the cars, it is obviously the duty of the company to 
 keej) their ticket office open until the actual departure of the 
 train, although the train be late. It would seem to follow 
 that if the company close their office prior to that time, pas- 
 sengers who afterward apply for tickets in season to enter 
 the cars with safety, cannot be lawfully charged additional 
 fare; and it has been so decided in New York.^ But it has 
 been held differently in Connecticut. In Crocker v. New 
 London <fec. R. E. Co.,^ which was an action for forcibly 
 ejecting the plaintiff from a railroad car, it appeared that the 
 defendants w^ere a railroad corporation running regular trains 
 of cars on their road between Norwich and New London ; 
 and that they had given public notice of a rule or regulation, 
 that the fare for passengers should be fifty cents, if it was 
 paid and a ticket procured by the passenger before taking 
 his seat in the cars, otherwise it should be fifty-five cents. 
 The plaintiff took a seat in the car without a ticket, and 
 wlien called ujion l:)y the conductor of the train, offered to 
 pay fifty cents, and refused to j)aj any more. Upon the 
 trial, he claimed to have proved that he went to the office of 
 the company where tickets were usually sold, at a reasonable 
 time before the starting of the train, to procure a ticket, 
 which he was ready to pay for; that he found the office 
 
 ' Porter v. N. Y. Centr. E. R. Co. 34 Barb. 353. ' 24 Conn. 249. 
 
 * In Hilliard v. Goold, supra, the Supreme Court, in granting a new trial, said : 
 "We are clearly of opinion that the jury should have been instructed to say, upon 
 all the evidence presented before them, whether the defendant did his duty, 
 under his authority as a conductor under the statute, in ejecting the plaintiff 
 from the cars at the time and place, and in the manner he was shown to have 
 done it. Instead of this, as tliey were instructed that the plaintiff was entitled 
 to their verdict, as a matter of law, leaving only the amount of damages to be 
 determined by them, the verdict must be set aside.''
 
 § 194. EIGHT OF ACCESS TO RAILWAY DEPOT. 177 
 
 closed, and that there was no person at the office of whom a 
 ticket could be obtained, at that time, or afterward, until after 
 the departure of the train, and that he informed the conductor 
 of these facts at the time his fare was demanded. Tlie judge 
 charged the jury in substance, that if the facts were as 
 claimed by the plaintiff, he had a right to retain his seat, 
 and the defendants were liable for his removal. But the 
 verdict, whicli was for the plaintiff, was set aside. * 
 
 12. Rigid of access to railway depot. 
 
 § 194. Although the platform of a railroad company, at 
 its station or stopping place, is erected for the accommoda- 
 tion of passengers arriving and departing in the train, yet 
 it is in no sense a public highway. Being unenclosed, per- 
 sons are allowed the privilege of walking over it for other 
 purposes, but they have no legal right to do so ; and the 
 servants of the company after requesting them to leave, can 
 remove them by whatever force may be necessary. Any per- 
 son who desires to take the cars, has the right to go upon the 
 premises of the company at any station where the trains 
 stop; and the company cannot lawfully prevent or hinder his 
 coming there, or order him to depart therefrom, before the 
 departure of the train.f This right does not depend upon 
 
 * In Crocker v. New Lond. &c. R. R. Co. supra, the court, in granting a new- 
 trial, laid down the following propositions: 1. As common carriers merely, the 
 defendants were under no legal obligation to furnish tickets, or to carry pas- 
 sengers for less than fifty-five cents in money, that being agreed to be a reason- 
 able price. 2. The plaintiff's claim to a passage, as if he had a ticket, rested 
 entirely on the assumed engagement of the defendants to furnish tickets, and 
 the plaintiff's endeavor to procure one, defeated by the defendants themselves. 
 8. Tlie published regulation of the defendants was not a contract, creating a 
 legal debt or duty, but a mere proposal, which might be suspended or with- 
 drawn at pleasure. 4. It was suspended, if not withdrawn, by the closing of the 
 ortice, and the retirement of the agent. 5. Tlie proposition being suspended or 
 withdrawn, the parties were in the same condition as before it was made. The 
 defendants continuing common carriers, were l)ound lo carry for their reasonable 
 com|)ensation, fifly-tive cents, but not otherwise. 
 
 t A railroad or steamboat company, by the dejiarture and arrival of their con- 
 veyances, give an invitation to all who desire to approach their boats or cars to 
 pass over tlieir wharf or platform; and one accustomed so to pass, cannot be 
 deemed a trespasser in repeating his act after a new station or landing has been 
 adopted, and the cars or boats have ceased to use the okl one. To exclude the 
 passer's right so as to make him in fault, notice must have been given of its 
 Vol. T— 12
 
 1 78 ASSAULT AND BATTERY. § 194 
 
 the purchase of a ticket, unless the rules of the company re- 
 quire that all persons shall purchase tickets before they enter 
 the cars ; the procuring of a ticket only affording evidence of 
 an intent to go upon the train. But it would seem to be 
 but just, inasmuch as the right to remain after request to 
 leave de2:)ends upon the intent of the party to take the train, 
 to require of him that on such request being made, if he in- 
 tends to rely on such right, he should make known his in- 
 tent to the persons making the request, or show that such 
 persons had knowledge thereof from some other source. The 
 right must not only be exercised in a proper manner, and 
 with a due regard to the just requirements of the compan37^. 
 but it must be exercised within a reasonable time ; that is, 
 the person may come upon the premises of the company 
 within a reasonable time next prior to the regular time of 
 departure of the train on which he intends to go, and remain 
 until such train leaves. AVhat is a reasonable time must de- 
 pend much upon the circumstances of each particular case. 
 The situation of the station with reference to public houses, 
 the distance that the intended traveler resides from the sta- 
 tion, and many other considerations should be taken into 
 account in determining; the lens-th of time that it would he 
 reasonable for the person to come to the station and remain 
 before the leaving of the train on which he intended to take 
 passage.^ '"^ Harris v. Stevens,- was an action for assault and 
 
 changed character, and that the rights of passers are terminated (E. R. Co. v. 
 Manning, 15 Wall. 649). 
 
 'Barker v. The Midland R. R. Co. 18 C. B. 46; Com. v. Power, 7 Mete. 
 596 ; Hall v. Power, 13 lb. 482,; Gillis v. Penn. R. R. Co. 59 Penn. St. R. 139. 
 
 = 31 Vt. 79. 
 
 * The great object for which railroad corporations are created and invested 
 with their extraordinary powers is, that they shall act as carriers of persons and 
 property upon their roads when completed; and by accepting their charters, con- 
 structing and putting in operation their roads, they not only take upon them- 
 selves all the duties and liabilities incident to the character of common carriers, 
 but they assume other important duties and liabilities. They not only have the 
 right to act as common carriers, l)ut they are bound to act as such. The public 
 have the right to insist that they shall continue so to act. They cannot throw 
 off this responsibility, and absolutely refuse to discharge their duties, except by 
 an abandonment and surrender of their charters. They cannot of their own mo- 
 tion, while acting under their charters, and operating their road, divest them- 
 selves of their character of common carriers, and refuse to receive and carry pas-
 
 § 190. RIGHT OF ACCESS TO RAILWAY DEPOT. 179 
 
 battery to which the defendant pleaded that he was station 
 agent of a certain railroad company, and that the alleged 
 trespass was committed by him in removing the plaintiff 
 from the premises of the company, where he remained after 
 being told to leave. The plaintiff replied, that at the time 
 of the assault he was at the depot of the company waiting- 
 for a train for w^hich he had purchased a ticket. It w^as in- 
 sisted on the part of the defendant, as cause of demurrer, that 
 the facts set forth in the replication were not sufficient to 
 justify the plaintiff' in remaining on the premises of the 
 company, after he was requested by the defendant to leave,, 
 inasmuch that it was not alleged that the plaintiff' was there 
 intending to take the then next train of ctirs upon which he 
 was entitled by his ticket to go, that the said next train was 
 then about to leave, and that the plaintiff was then upon the 
 premises of the com2:)any awaiting and expecting the arrival 
 and departure of such train. It was held not necessary for 
 the plaintiff to allege that he entered upon the premises in- 
 tending to purchase a ticket, or to take the train ; for if he 
 entered without that intent, and after his entry formed the 
 intent, his right to remain thereafter would be the same as 
 though it had existed at tlie time of entry; but that the 
 plaintiff' should have averred, that at the time when, <fec., he^ 
 was at the station awaiting the departure, of a train that was. 
 expected to leave within a short j^eriod of time thereafter. 
 
 § 195. The license to enter and remain upon the premises, 
 of a railroad company, is revocable as to all except those 
 who have legitimate business there. The right ma}^ be for- 
 feited by the improper conduct of the person, or the viola- 
 tion of the rules and regulations of the company. In that 
 case, the company, by their servants, may require him to 
 depart, and on his refusal so to do, they may remove him.^ 
 
 § 196. Where the president of a corj^oratiou is the mere 
 
 sengers, or refuse to allow them to come upon their premises at the proper place, 
 aud time, for the purpose of taking passage. 
 ' 31 Vt. 79.
 
 180 ASSAULT AND. BATTEEY. § 197. 
 
 conduit for communication between the corporation and its 
 agent, transmitting to the latter tlie orders of the corpora- 
 tion, as to removing persons from the premises of the corpora- 
 tion who are intruders there, lie will not be liable for the 
 abuse of his authority by tlie agent. But it is otherwise, 
 where it is a personal order emanating from the president.^ 
 
 13. Seduction of daughter tvith violence. 
 
 § 197. Where seduction is accomi)anied with actual 
 violence upon the person of the daughter, or an illegal entry 
 upon the plaintiff's close, or into his house, tresjiass will lie; 
 and damages for the seduction and loss of service, may be 
 laid as matter of ao-OTavation.^ " Althougjh in such actions 
 the injury is to the relative rights of the father or husband, 
 yet as he is not supposed to assent to the act, it is regarded 
 as done forcibly as against him ; and for damages sustained 
 by him, trespass vi et annis has been considered a proper 
 form of action. Lord Holt is quoted as saying in a case 
 reported by Lord Raymond,'^ that a man could not maintain an 
 action against another for assaulting his daughter and getting 
 her with child, unless there had been an unlawful entry into 
 the plaintiff's premises, in which case, the assault upon the 
 daughter, would be an aggravation. But the accuracy of 
 Lord Raymond's recollection of what was said by Holt, was 
 doubted in Woodward v. Walton,'* and the law held to be 
 otherwise, upon the authority of an earlier case than the one 
 in Raymond. That was Guy v. Livesey,^ which was an 
 action for assault and battery, in which the plaintiff recovered 
 for a battery inflicted by the defendant upon him, and also 
 f(^r the loss of the service and companionship of his wife, 
 "who went with the defendant and lived with him in a sus- 
 picious manner ; — and Cholmley's case cited in the foregoing, 
 where a man brought an action for the battery of his wife, and 
 
 4» 
 
 ' Hewett V. Swift, 3 Allen, 420. 
 
 - Moran v. Dawes, 4 Cowen, 412; Ilubbell v. Wheeler, 2 Aiken, 359. 
 
 ' Russell V. Corne, 2 Ld. Raym. 1032. 
 
 * 1 Bos. & Pul. R. S. 476. " Cro. Jac. 501 ; 2 Roll. R. 51.
 
 § 108. SEDUCTION OF DAUGHTER WITH VIOLENCE. 181 
 
 recovered for the injury to him thereby. A man might there- 
 fore bring trespass vi et armis^ for the seduction of his wife, 
 daughter or servant, or for au assault and battery upon them ; 
 and hence the averment of assaulted, debauched, and carnally 
 knew, in all the forms ; for whether the carnal knowledge was 
 wdth, or against the will of the wife or daughter, the action 
 was equally maintainable." ^ In such actions however, the 
 injury to the person of the child, and to the property of the 
 plaintiff, are generally little more than a mere fiction. The 
 direct injury may be waived in all cases, and the declaration 
 framed to meet the consequential injury, disregarding 
 entirely every consideration, except the loss of service, and 
 the more important one of seduction and disgrace.'^' 
 
 § 198. At common law, for seduction, the w^oman had no 
 cause of action, the civil action, where carnal knowledge of 
 
 ' Daly, J., in Koeuig v. Nott, 2 Hilt. 323; s. c. 8 Abb. 384. 
 
 * lu New York, id Moran v. Dawes, supra, which was decided previous to 
 the enactment of the statute referred to in the text, § 198, the court said: "A 
 very usual case may be supposed in which, if we are to be governed by the 
 technical rules relating to an action of trespass, the father woukl be remediless, 
 for the most aggravated form of the injury, unless he has an election. The 
 seducer is received at the dwelling of the father, on the footing of a suitor; he 
 thus having a license to enter the house, of whicii he avails himself to accomplish 
 the seduction with the consent of the daughter. It could hardly be said that 
 trespass and assault would lie for such an act. The father is then put to his 
 remedy by trespass qtinre domum fregit, laying the seduction, &c., by way of 
 aggravation. The defendant does not become a trespasser ah initio ; for license 
 was given by the party. The defendant may therefore justify the entry. It is 
 a rule that a trespass itself being justified, this also reaches the matter laid in 
 aggravation; and thus the defendant would be acquitted of the entire charge 
 against him. It cannot be, that the law ever intended to trammel this remedy 
 by imi)osiug upon the party such an absurd result. It marks the limit of the 
 prosecution by confining it to one holding the relation of master; from which 
 it looks directly to the consequential injury as the vital spark of the action." 
 
 In a still earlier case in New York (Nickleson v. Stryker, 10 Johns. 115), 
 which was an action of trespass for assaulting and getting with child the 
 daughter of the plaintiff, it was proved that the daughter was twenty-nine years 
 of age, and not in the actual service of her father, when she had the connection 
 with the defendant, and it was held that the plaintiff could not sustain the 
 action; the rule being settled, that if the daughter be of age, she must be in 
 her father's service so as to constitute, in law and in fact, the relation of master 
 and servant, in order to entitle her father to a suit for seducing her. If she be 
 under age, she is presumed to be under his control and protection, whether she 
 reside with him or not (and see Martin v. Payne, 9 Johns. 387; Shufelt v. 
 Rowley, 4 Cowen, 58). 
 
 In Delaware, it lias been held that an Rction per quod sermtium amisit, maj 
 be maintained by a father for a forcible injury to his son (Hammer v. Pierce, 5 
 Harring. 171).
 
 182 ASSAULT AND BATTERY. § 199. 
 
 her person was ol>taiiied against her will being merged in 
 the felony. In New York, under tlie statute/ a woman upon 
 whom a rape has been committed, may maintain an action 
 for the personal injury ; and in stating her cause of action, 
 it is sufficient if her complaint conforms to what is essential 
 in the way of averment in actions for injuries to the person. 
 Accordingly, in an action for assault and battery, an aver- 
 ment in the complaint, that the defendant with force and 
 arms, ill treated the plaintiff and made an indecent assault 
 upon her, and then and there debauched, and carnally knew 
 her, was held, on demurrer, sufficient.' " 
 
 14. Chastisement of pupil hy teacher. 
 
 § 199. A tutor or schoolmaster may lawfully exercise so 
 much of restraint and correction as may be necessary to an- 
 swer the purposes for wliicli he is employed.^ f And when 
 a scholar who is guilty of insubordination and misconduct 
 
 ' 3 N. Y. Rev. Sts. 5th ed., p. 589, § 2. 
 
 "^ Koeuig V. Scott, supra. ' 1 Blk. Com. 453. 
 
 * In this case, the demurrer was sustained by the judge at special term, 
 upon the assumption that tlie words " made an indecent assault, aud then and 
 there debauched and carnally knew," imported nothing more than the seduction 
 of the plaintiff, for which she could maintain no action. Daly, J., in delivering 
 the opinion of the New York Common Pleas, reversing the judgment of the 
 Special Term, said: — ''The doubt in respect to this complaint has arisen, I ap- 
 prehend from the ])leader's emj)loying the form of averment, ' assaulted, de- 
 bauched, and carnally knew,' which was usual in actions of trespass ti et armis, 
 brought by a father for the seduction of his daughter, or by a husband for crim- 
 inal conversation with his wife. Thus, in Woodward v. Walton, 1 Bos. & Pul. 
 N. R. 476, which was an action of trespass, the averment was, that the defend- 
 ant with force aud arms, assaulted, debauched and carnally knew the plaintiff's 
 daughter; and in Rigaut v. Gallisard, 7, Mod. 78, the court say, 'If a man find 
 another man in bed with his wife, he may have an assault and battery against 
 him.' Thus, in the forms in Chitty, for an action of trespass vi et armis, for 
 criminal conversation, or seducing a daughter, the averment is always, assaulted, 
 debauched, and carnally knew " (2 Chitty's' PI. 856, 6th Am. ed.; and to the 
 same effect, are numerous authorities. Macfadzen v. Olivant, 6 East, 387; Ben- 
 nett V. Olcott, 2 Term R. 166; Bac. Abr. Marriage, E, 3). 
 
 Where a declaration for seducing the plaintiff's daughter, was framed in 
 trespass, but omitted the words •' with force and arms." it was held that the ob- 
 jection was cured by verdict (Parker v. Bailey, 4 D. & R. 215). 
 
 t A music master of a cathedral is not justified in even moderately beating a 
 chorister for singing at a club, although such singing might ])e injurious to his 
 performing in the cathedral. Evidence of the practice of one cathedral is not 
 admissible in an action against the music master of another, for I)eatiug a chor- 
 ister for singing at a club (Newman v. Bennett, 2 Chit. 195).
 
 § 200. CHASTISEMENT OF PUPIL BY TEACHER. 183 
 
 refuses to leave the school upon being directed Ly the 
 teacher to do so, a third person may, upon the request of the 
 •teacher, use such force as is necessary to remove the scholar.^ 
 The power of the teacher must be temperately exercised; 
 and no schoolmaster should feel himself at liberty to admin- 
 ister chastisement co-extensively with the parent."^ A great, 
 and to some extent irresponsible, power of control and cor- 
 rection is invested in the parent by nature and necessity. It 
 springs from the natural relation of parent and child. It is 
 felt rather as a duty than a power. From the intimacy and 
 nature of the relation, and the necessary character of family 
 government, the law suffers no intrusion upon the authority 
 of the parent and the privacy of domestic life, unless in 
 extreme cases of cruelty and injustice. This parental power 
 is little liable to abuse ; for it is continually restrained by 
 natural affection, the tenderness which the parent feels for his 
 offspring, an affection ever on the alert, and acting rather by 
 instinct than reason. The schoolmaster has no such natural 
 restraint. Hence, he may not safely be trusted with all a 
 parent's authority, for he does not act from the instinct of 
 parental affection. He should be guided and restrained by 
 judgment and wise discretion, and hence is responsible for 
 their reasonable exercise. 
 
 § 200. To justify a schoolmaster in a resort to corporal 
 punishment, the cause must be sufficient, the instrument suit- 
 able to the purpose, and the punishment be administered in 
 moderation.^ He must exercise reasonable judgment and 
 discretion in determining when to punish and to what ex- 
 tent. In determining what is a reasonable punishment, 
 various considerations must be regarded, — the nature of the 
 offense, the apparent motive and disposition of the offender, 
 the influence of his example and conduct upon others, and 
 the sex, age, size and strength of the pupil to be punished. 
 Among reasonable persons much difference prevails as to the 
 
 ■ State V. Williams, 27 Vt. 755. '' 1 Blk. Com. 453, n. 13. 
 
 ' Cooper V. McJunkin, 4 Ind. 290.
 
 184 ASSAULT AND BATTERY. § 200. 
 
 circumstances wliicli will justify the infliction of punish- 
 ment, and the extent to whicli it may properly be adminis- 
 tered. On account of this difference of opinion, and tlie 
 difficulty which exists in determining what is a reason- 
 able punishment, and the advantage which the master has 
 by being on the spot to know all the circumstances, the 
 manner, look, tone, gestures and language of the offender 
 (which are not always easily described), and thus to form a 
 correct opinion as to the necessity and extent of the punish- 
 ment, allowance should be made the teacher by way of pro- 
 tecting him in the exercise of his discretion. If, however^ 
 the punishment be clearly excessive, the teacher will be 
 liable, although in his own judgment he deemed the punish- 
 ment necessary and proper. In Lander v. Seaver,^ it was 
 claimed in behalf of the defendant at the trial in the court 
 below, that the schoolmaster was a public officer, that in his 
 government of the school he was invested with j)ublic 
 authority, with discretionary j)owers, and acted in a judicial 
 capacity, and so was not liable for errors of judgment.* The 
 judge charged the jury that " although the punishment in- 
 flicted on the plaintiff was excessive in severity and dispro- 
 portioned to the offense, still, if the master, in administering 
 it, acted with pro]3er motives, in good faith, and, in his 
 judgment, for the best interests of the school, he would not 
 be liable; that a schoolmaster acts in a judicial capacity, and 
 that the infliction of excessive punishment, when prompted 
 by good intentions, and not by malice or wicked motives or 
 an evil mind, was merely an honest error of opinion, and did 
 not make him liable' to the pupil for damages." The 
 Supreme Court, however, held that this was not the law. 
 And a similar instruction asked for in Massachusetts was 
 refused, the court telling the jury that if they found that the 
 
 ' 33 Vt. 114; s. p. Hathaway v. Rice, 19 Vt. 102. 
 
 * His authority was likened to that of public officers, such as listers, iu the 
 case of Fuller v. Gould, 20 Vt. 613; the posi master-general, in Kendall v. Stokes,. 
 8 Howard, 87 ; the mayor of New York, in Wilson v. The Mayor &c. 1 Deuio,. 
 595 ; or a commander in the navy, as in Wilkes v. Dinsman, 7 Howard, 89.
 
 § 202. CHASTISEMENT OF PUPIL BY TEACHER. 185 
 
 punislimeut was excessive and improper, the master might be 
 found guilty; and the charge was held correct upon the 
 hearing of the defendant's exceptions in the Supreme 
 Court.^ * 
 
 § 201. The supervision and control of the teacher over 
 the scholar continues from the time the pupil leaves home to 
 go to school until he reaches home. Most parents would 
 expect and desire that teachers should take care that their 
 children in going to and returning ft^om school should not 
 loiter, or seek evil company, or frequent places of evil resort. 
 But when the child has returned home, the parental author- 
 ity is resumed, and the control of the teacher ceases, at least 
 as to all ordinary acts of misbehavior. 
 
 § 202. The right of the teacher to chastise his pupil for 
 what has occurred at the home of the latter, presents a qaes- 
 tion of extreme delicacy. It certainly ought only to be ex- 
 ercised, if at all, in rare instances, and under exceptional cir- 
 cumstances. The acts done out of the teacher's supervision 
 for which he may punish, must be direct and immediate in 
 their bearing upon the welfare of the school, or the author- 
 ity of the master and the respect due to him. Cases may 
 readily be supposed which lie very near the line, and it will 
 often be difficult to distinguish between the acts which have 
 such an immediate tendency and those which have not. In 
 Lander v. Seaver,-^ the question presented was as to the right 
 of the master to punish his pupil for acts of misbehavior 
 committed after the school was dismissed and the pupil had 
 returned home. It apj^eared that the offense for which the 
 boy was whipped was committed at his home, an hour and a 
 half after the school was out ; the boy using towards the 
 master, and in his hearing and in the'presence of other pupils. 
 
 ' Com. V. Randall, 4 Gray, 3G. = 32 Vt. 114. 
 
 * In Com. V. Randall, siipra, the court said that if the schoolmaster, in inflict- 
 in<T punisiiment upon his pnpil, went beyond the limit of moderate castigation, 
 and either in its mode or degree committed any unreasonable and disproportionate 
 violence, he was clearly liable for such excess, it then becoming an assault and 
 battery, because i)urposely inflicted without justification or excuse.
 
 186 ASSAULT AND BATTERY. § 203. 
 
 coiiteiBptuoiis language. It was held that where, as in this 
 case, the oftense has a direct and immediate tendency to in- 
 jiu'e the school, and bring the master's authority into con- 
 tempt, when done in the presence of other scholars and of 
 the master, and with a design to insult him, the master had 
 the right to punish the scholar upon his reappearance at 
 school. 
 
 15. Chastisement of servant hy master. 
 
 § 203. Except in the case of sailors, the master cannot 
 lawfully chastise his hired servant. If he beat his servant, 
 though moderately and by way of correction, it is good 
 ground for the servant's de23arture, and the servant may sup- 
 port an action against the master for the battery.^ * Mathews 
 V. Terry - was an action against a master for an assault and 
 battery alleged to have been committed by him upon a 
 minor thirteen or fourteen years of age, in his employ in the 
 business of mauufacturino; clocks. The defendant offered to 
 prove that the jDlaintiif conducted himself insolently towards 
 him, and refused to obey his la'vvful commands, Avhereupon 
 he moderately chastised the plaintiff for such misbehavior. 
 It was urged by the defendant that this j)ower, if not given 
 by the common law, was conferred by the statute relating to 
 masters and servants, which required the proprietors of 
 manufacturing establishments to cause the children employed 
 in such establishments, whether bound by indenture, by 
 parol agreement, or in any other manner, to be taught to 
 read and write, to be instructed in arithmetic, and regularly to 
 attend public worship, and that due attention be paid to the 
 preservation of their public morals. It was held, however, 
 that the proposed evidence was not admissible, no such con- 
 •struction of the statute l^eino; warranted. The court re- 
 marked that if the children employed were apprentices, they 
 
 ' 1 Chit. Pr. 7S, 75 ; Newman v. Bennett, 2 Chit. R. 195. 
 
 " 10 Conn. 455. 
 
 * Although the hirer of a slave has the same riglit to punish and correct the 
 slave which the owner himself has, yet if tlie punishment is cruel, the hu'er be- 
 comes a trespasser ab initio (Nelson v. Bonduraut, 26 Ala. 341).
 
 §§ 204, 205. ABUSE BY KEEPER OF ALMSHOUSE. 187 
 
 were liable to be piinisbed by their masters, to whom they 
 were bound, for their misconduct and disobedienct; ; but that 
 if they were simply hired to labor, as was the case with the 
 plaintiff, and refused to submit to the reasonable and lawful 
 requirements of their employers, they were liable to be dis- 
 missed like any other hired servants, but not corporally 
 2>unished. 
 
 16. Corporal ]}uni8liment oy master of vessel. 
 
 § 204. Although a captain has a right to inflict corporal 
 punishment upon a seaman under his command, yet it is not 
 an arbitrary and uncontrolled right. He is amenable to the 
 law for the due exercise of it. He ought to be able to show, 
 not only that there was a sufficient cause for chastisement, but 
 that the chastisement itself was reasonable and moderate.^ * 
 Mr. Abbott ^ lays down the following rule on this subject : 
 *' By the common law, the master has authority over all the 
 mariners on board' the ship, and it is their duty to obey his 
 commands in all lawful matters relative to the navigation of 
 the ship and the preservation of good order ; and in case of 
 disobedience or disorderly conduct, he may lawfully correct 
 them in a reasonable manner ; his authority in this respect 
 being analogous to that of a parent over a child, or a master 
 over his apprentice or scholar. Such an authority is abso- 
 lutely necessary to the safety of the ship and of the lives of 
 the persons on board ; but it behoves the master to be very 
 careful in the exercise of it, and not to make his parental 
 power a pretext for cruelty and oppression." 
 
 17. Abuse by heeper of almshouse. 
 
 § 205. The keeper of an almshouse has a right, in order 
 to maintain the good conduct of his establishment, and for 
 
 ' Brown v. Howard, 14 Johns. 119. ^ Tr. on Shij^ping, 125. 
 
 * The father of a minor child may maintain a libel for the assault and battery 
 of his child at sea. But it will be necessary to prove either actual damage or 
 damage by intendment of law; and the action may be maintained after the 
 child's death, occasioned by the battery (Plummer v. Webb, Ware, 75).
 
 188 ASSAULT AND BATTERY. § 205. 
 
 the purpose of restraining its inmates from committing mis- 
 chief, to use a reasonable amount of preventive force wben 
 otlier means are ineffectual. But be cannot lawfully con- 
 fine and chain a pauper, although directed to do so by the 
 selectmen of the town, excepting in case of such impend- 
 ing danger from the pauper as to render it necessary. 
 State V. Hull and Webb ^ was an information for an 
 assault and battery upon one Foote, a pauper, Hull being 
 the keeper of the paupers of the town, and Webb his 
 hired servant. The question was whether the evidence 
 tended to prove the existence of such an emergency at the 
 time of the wrongs complained of as justified the kind and 
 degree of violence resorted to by the defendants. It ap- 
 peared that Foote was sitting in a lower room of the house 
 reading. He was in a place where he had a right to be, 
 and had given no provocation. While in this situation, 
 the defendants pushed him up stairs with force, and fastened 
 him in his chamber. Upon being told by him that he could 
 not be confined in this manner, they threw him down, fast- 
 ened an iron chain around his legs, and locked it with a pad- 
 lock to a staple driven into the floor. They then went away, 
 locking the door of the room, and leaving him alone, — a man 
 seventy-nine years old chained down as though he had been 
 a wild beast. Evidence was offered that about sx year pre- 
 vious to the occurrence complained of the pauper conveyed 
 rum into the house, got drunk, made others drunk, and hid 
 the rum, and that upon an attempt being made to destroy it, 
 he attacked the keeper, and that it was then necessary to 
 chain him ; that he was of a turbulent character and temper, 
 not to be restrained by ordinary means ; that on several oc- 
 casions he had been turbulent and unruly, and had been 
 guilty of wanton and destructive acts in the kitchen, and had 
 obstructed the work. As these occurrences had taken place 
 long before the assault charged, had no connection with it, 
 and did not tend to show any such impending danger from 
 
 ' 34 Conu. 132.
 
 § 20C. PERSONAL VIOLENCE BY HUSBAND UPON WIFE. 189 
 
 the pauper at tlie time of the assault as made it necessary to 
 confiue aud chain him, it was held that the proposed evi- 
 dence w^as not admissible. And a verdict havino; been found 
 in the court below against both of the defendants, the Su- 
 preme Court refused to disturb it. 
 
 18. Personal violence hy husband upon wife. 
 
 § 206. A man cannot law^fully beat his wife.^ " Beat- 
 ing or striking a wife violently with the open hand is not one 
 of the rights conferred on a husband by the marriage, even 
 if the wife be drunk or insolent."^ An action for assault and 
 battery will not, however, lie by a feme covert against her 
 husband.^ * 
 
 ' Perry v. Perry, 2 Paige, 501-503; People v. Winters, 2 Park. Cr. Cas. 10. 
 
 ^ Com. V. Thouipsou, 108 Mass. 461. 
 
 ^ Longendyke v. Longendyke, 44 Barb. 366. 
 
 * In Longendyke v. Longendyke, siipra, it was conceded that by the rules of 
 the common law husband aud wife could not sue each other in a civil action. 
 The only question, therefore, was whether that right had been conferred by 
 stattfte. Section 7, cb. 90, of the Laws of New York of 1860, declares that 
 married women may sue aud be sued in all matters relating to their property 
 which may be their sole and separate property or come to them from any person 
 except their husbands; and may bring actions to recover damages for injuries to 
 their person or character against any person or body corporate, which damages, 
 when so recovered, shall be their sole and separate property. The court said: 
 " The right to sue her husband in au action of assault and battery may, perliaps, 
 be covered under the literal language of this section. But I think such was not 
 the meaning and intent of the Legislature, and such should not be the construc- 
 tion given to the act, for the following, among other reasons: 1. It is contrary 
 not only to the rule of the common law, but to the spirit and intent of the 
 married women's acts, the object of which was to add to her property rights as 
 Sifeme sole, and to distinguish her property from her liusband's, and not to con- 
 fer rights of action upon her against him. 3. It is contrary to the policy of the 
 law, and destructive of that conjugal unicu and tranquility which it has always 
 been the object of the law to guard and protect. 3. The efl'ect of giving so 
 broad a construction to the act of 1860 might be to involve the husband and 
 wife in perpetual controversy and litigation, to sow the seeds of perpetual dis- 
 cord and broil, to produce the most discordant and conflicting interest of prop- 
 erty between them, and to offer a bounty or temptation to the wife to seek 
 encroachment upon her husband's property, which would not only be at war 
 with domestic peace, but deprive her probably of those testamentary dispositions 
 by the husband in her favor which he would otherwise be likely to muke. Under 
 the acts of 1848 and 1849, which are quite comprehensive, the courts held that 
 they did not remove the wife's common law disal)ility to contract, otherwise 
 than as respected her separate property. They therefore held her promissory 
 notes and executory contracts invalid, evincing a disposition not to enlarge 
 the acts in question beyond their most plain and obvious scope, nor to remove 
 the disabilities of the common law to any greater extent than was required by 
 by the plain words of the statute. The act of 1800 was, doubtless, intended to 
 enlarge this right to make bargains aud contracts, and sections 2 aud 8 of that
 
 190 ASSAULT AND BATTERY. § 207. 
 
 10. Injury from reckless driving. 
 
 § 207. Trespass is the proper remedy for injury caused 
 by reckless drivina;.^ ^ In an action for drivins; a wag-on 
 witli great force and violence against tlie plaintiff's barouche^ 
 in -svliich he was then riding along the public highway, 
 whereby the barouche was broken, and the plaintiff thrown 
 to the ground and injured, the following instruction of the 
 judge before whom the cause was tried was held correct: 
 That the plaintiff' would Ije entitled to recover if the defend- 
 
 act would appear to give unqualified power to make bargains and contracts itt 
 regard to her property. But if we follow the spirit of previous decisions, it is 
 very doubtful whether they would be held so far to destroy the unity and 
 identity of husband and wife as to enable her to bargain and sell her property to 
 her husband. The act of 1863 (Laws of 1862, ch. 172) does not materially differ 
 from the act of 1860, or require a different construction. It repeals some sections 
 of the act of 1860. It confers the power to sue and be sued in somewhat broader 
 terms than the act of 1860, but not in a manner to lead to the implication that 
 the husband was intended to be permitted to be sued by the wife for injuries to 
 her person and character, as in an action of assault and battery or slander "^ 
 (refering to Erwin v. Smaller, 2 Sand. SiO: Pillow v. Bushnell, 5 Barb. 158; 
 Hasbrouck v. Vandervoort. 4 Sand. 596 ; Citv Bank v. Bangs, 3 Paige, 36 ; 
 People V. Carpenter, 9 Barb. 580 ; Marsh v. Potter, 30 lb. 506 ; Babbott v. 
 Thomas, 31 lb. 277; Coon v. Brook, 21 Barb. 546; Dickerman v. Abraham's, II). 
 551; Bass v. Bean, 16 How. Pr. R. 93; Arnold v. Eingold, lb. 158; Switzer v. 
 Valentine, 4 Duer, 96; Yale v. Dederer, 18 X. Y. Pv. 265). 
 
 MValdron v. Hopper, Coxe, 339; Rappelyea v. Hulse, 7 Halst. 257. 
 
 * An action for beating the plaintiff's horse attached to a wagon, in which the 
 plaintiff was at the time sitting, is not an action for an assault and battery, but. 
 for •' injuring property " (Bull v. Colton, 22 Barb. 94, Balcom, J.). "The plaintiff 
 had the right to waive all damages for the assault upon his person, and bring 
 his action solely for the injury to his horse. His person was not touched, and 
 the damages to his horse were easily separated from any for the supposed assault 
 upon his person. He had his choice between two remedies, and has elected which 
 action he would bring, and such election did not prejudice the defendant. He 
 has lost no right by reason thereof. The recovery in this case, is a bar to any 
 other action the plaintiff* may institute for damages arising out of the same trans- 
 action." The conductor of a street railroad car, is not the driver, within the 
 statute of New York (X. Y. Rev. Sts. 5th ed. Vol. 2. p. 966, §§ 6, 7), whicli 
 provides that the owners of carriages running upon the highway for the convey- 
 ance of passengers, shall be liable for personal injuries caused by the driver while 
 driving (Isaacs v. Third Ave. R. R. Co. 47 X. Y. 122). 
 
 The statute above referred to, is as follows: — '" The owners of every carriage 
 running or traveling upon any turnpike road, or public highway for the convey- 
 ance of passengers, shall be liable jointly and severally to the party injured in 
 all cases, for all injuries and damages done by any person in the employment of 
 such owner or owners as a driver, while driving such carriage, to any person, or 
 tp the property of any person : and that, whether the act occasioning such injury 
 or damage be wilful or negligent or otherwise, in the same manner as such 
 driver would be liable. The term ' carriage,' as used in this title, shall be con- 
 strued to include stage coaches, wagons, carts, sleighs, sleds, and every other 
 carriage or vehicle used for the transportation of persons and of goods, or either 
 of them."
 
 § 208. INJURY FROM RECKLESS DRIVING. 191 
 
 ant, either intentionally or through gross negligence, drove 
 his wao-on against the plaintiff's barouche, and thereby over- 
 set it and caused the injury; that the same would be the 
 case if the defendant was guilty of a w^ant of ordinary and 
 reasonable care and prudence, unless there was also fault or 
 negligence on the plaintiff's part, which concurred in pro- 
 ducing the injury ; and that ^vhat occurred previous to the 
 collision, however improper or indiscreet the conduct of the 
 plaintiff might have been, w^ould furnish no justification or 
 excuse for the act of the defendant in subsecpiently driving 
 his carriage against that of the plaintiff, either through de- 
 sign or negligence.^ 
 
 § 208. A driver who endeavors to keep the road, and 
 prevent others with lighter and more active vehicles from 
 passing, or strives to run them oft', or to repass them by un- 
 usual and reckless driving, Avill be liable for the damage 
 thereby occasioned ; ^ and if his conduct has the sanction of 
 his employer, the latter will be liable. The defendant and 
 others hired a job carriage and four post horses, with, two 
 postillions, to go to Epsom races. On the road, the drivers, 
 in '' cutting in," to the line formed for the purpose of passing 
 .through a toll-gate, overturned a gig in which the j^laintift' 
 was seated, and severely injured him. After the accident, 
 the defendant, who was on the driver's box, offered money to 
 the injured party, and gave him his card ; and upon the 
 owner of the gig afterward calling upon him, the defendant 
 observed that " cutting in " was all fair upon such occasions, 
 and that he " intended if the gig had gone Cjuietly out, to have 
 pulled up to let it in again." It was held that the jury were 
 warranted in inferring that the postillions had acted as they 
 did with the sanction of the defendant, and consequently 
 that he was liable in trespass for the injury done.^ ^' 
 
 ' Cliurcliill V. Rosebeck, 15 Conn. 359. 
 = Strohl V. Levan, 39 Penn. St. R. 177. 
 
 ' McLaughlin v. Pryor, 4 Scott, N. R. 655 ; 1 Car. & M. 354 ; 6 Jur. 374. 
 * An action of trespass may be maintained against a father for an injury 
 caused by his team in charge of his son, with whom he was riding at the time of
 
 192 ASSAULT AND BATTERY. §§ 209, 210. 
 
 20. Resisting arrest. 
 
 § 209. It is the duty of an officer to show his warrant if 
 asked to do so. In New York it has been held that if this 
 is not done the party arrested may resist, and that the officer 
 will be liable for assault and battery and false imprison- 
 ment.^ Bellows V. Shannon ^ was an action for assault and 
 battery on an officer who was attempting to arrest the de- 
 fendant under a warrant. It appeared that the defendant 
 did not know at the time of the occurrence that a warrant 
 had been issued, and it was held that he was not liable. The 
 court remarked that " to allow an officer to recover damages 
 in such a case would be to permit him to take advantage of 
 his own misconduct. A liberal protection should be awarded 
 to public officers when they act uprightly ; but they are en- 
 titled to no favor when they designedly act in such a way as 
 to lead third persons into difficulty. When they fall into 
 error in an honest effi)rt to discharge their duty, it is enough 
 that they are allowed to set uj) their official character as a 
 shield. They should not be permitted. to use it as a weapon 
 of assault against one who has been misled by their improper 
 conduct, and who has done nothing more than resort to the 
 law of self defense." 
 
 § 210. In an action for assault and battery and false im- 
 prisonment against an officer, it is competent for the plaintiff 
 to show that he consented to accompany the officer, and 
 that, notwithstanding such consent, he was roughly and 
 brutally treated. This consent would form an important 
 element in the case, and, if sincere, would have required and 
 justified a smaller degree of force than under other circum- 
 stances. So, on the other hand, it is competent to show the 
 
 the occurrence, " Here the son was driving, and the father, the defendant, was 
 riding. The latter made no objection or endeavor to control his son, and if he 
 did not, it was a presumption which a jury might well make, and which I think 
 they were bound to make, that he assented to what was done in the management 
 of the instrument (the team) which did the injury, and therefore, per consequence, 
 was answerable, provided the result was not an unavoidable accident, which the 
 jury have found was not the case " (Strohl v. Levan, supra; ante^ § 40). 
 ' Frost V. Thomas, 24 Wend. 418; see fost, § 333. ^ 2 Hill, S6. 
 
 I
 
 §§ 211, 212. AIDING OR ENCOURAGING ASSAULT. 193 
 
 resistance of the plaintiff, in words as well as in acts ; and 
 when the plaintiff, besides resisting, said that he would mur- 
 der any man that attempted to arrest him, it was held that a 
 much greater degree of force was justified than if there had 
 been no such threat,^ * 
 
 21. Aiding or encouraging assault. 
 
 § 211. The rule to which we have already adverted,^ that 
 all persons aiding and abetting or counseling and procuring 
 a trespass, or afterward assenting to it, when done for their 
 benefit, are principals, applies to femes covert and minors, 
 who are consequently liable when they procure another to 
 commit an assault and battery. The cases to the contrary 
 relate to civil acts done by the command of 2:)ersons not 
 having capacity to make contracts ; and because such com- 
 mands are in the nature of a contract, they are void. But 
 trespasses are analagous to crimes, which femes covert and 
 minors may be answerable for, although not personally pres- 
 ent Avhen committed.^ 
 
 § 212. If j)ersons who are present at a quarrel encour- 
 ' age a battery, they assume the consequences of the acts done, 
 to the fullest extent. Often they are more culpable than the 
 active participants. It is not necessary that the encourage- 
 ment should consist of appeals to the ruffian engaged in com- 
 mitting the battery. It is enough if they encourage and 
 sanction what is being done, and manifest this by demonstra- 
 tions of resistance to any who might desire to interfere to 
 prevent it ; or by words, gestures or acts indicate an approval 
 of what is going on. The law will not weigh very nicely 
 the acts of individuals to ascertain w^hether what was said 
 or done by them has enhanced the injury more or less than 
 
 ' Fultou V. Staats, 41 N. Y. 498. " Ante, § 23. 
 
 " Sikes V. Johnson, 16 Mass. 389. 
 
 * In Fulton v. Staats, mpra, Lott, J., with whom Grover and Woodruff, J.J., 
 concurred, dissefating, maintained that no dechiration, sucli as it was alleged the 
 plaintiff had made, would justify or palliate any of the acts complained of, 
 especially if not made in the presence of the defendant. 
 Vol. 1^13
 
 194 ASSAULT AlilD BATTERY. § 212.. 
 
 the acts of others. All so engaged are answerable for all 
 the injury.-' The following instruction Avas accordingly held 
 correct : " If, in a tumultuous crowd, the defendant saw a 
 person, by him known to be an officer in the discharge of his 
 duty, assaulted, and used Avords, acts or gestures which 
 might tend to incite or encourage the person then assaulting 
 the officer to assault him, he might be convicted of an as- 
 saiult, notwithstanding he did not in person touch or injure 
 the officer." ^ Where a carpenter, connected with a train of 
 artillery, but who was not subject to martial law, brought 
 an action for assault and battery against the governor of 
 Gibraltar, and proved that he had been tried by court mar- 
 tial and sentenced to be whipped, and that the governor 
 confirmed the sentence, which Avas then executed, it was held 
 that the plaintiff was entitled to recover.^ An officer, accom- 
 panied by an execution creditor, tried to levy on a mare 
 which the debtor had sold to one Wood. The debtor and 
 Wood resisted the attempt of the officer to take the mare, 
 and in the scuffle Wood jumped on to the mare and rode her 
 away. The officer then directed the creditor to seize the 
 debtor, and hold him while he went after Wood and the 
 mare, which the creditor did. In an action by the debtor 
 against the officer and creditor for assault and battery, it was 
 held that as the execution did not run ao-ainst the debtor's 
 body, and as he did not interfere or threaten to interfere 
 with the officer's going after the mare, both of the defendants 
 were liable.'* ^ 
 
 ' Frantz v. Leuhart, 56 Penn. St. 365; Little v. Tingle, 26 Ind. 168; State v. 
 Rawles, 65 K C. 334; ante, § 23; 2^081, § 290. 
 
 " Com. V. Hurley, 09 Mass. 433. 
 
 ' Cowp. 175. * Francis v. Leach, 41 Vt. 675. 
 
 * The fact that a person was present when an assault and battery was com- 
 mitted, without in any way participating in it, will not make him liable to dam- 
 ages therefor; although he was at a public meeting a short time previous as a 
 selectman of the town, at which meeting a committee was appointed to look 
 after those suspected of being disloyal, in pursuance whereof the jilaintiff was 
 visited by the committee, followed by a large crowd of persons, by some of whom 
 the assault and battery was committed in the presence of the selectman, it not 
 appearing that at the meeting auv violence was proposed or contemplated (Miller 
 y. Shaw, 4 Allen, 500). 
 
 A person to be liable as a joint trespasser for an assault and battery committed
 
 §§ 213, 214. . PLACE OF TRIAL. 195 
 
 § 213. Persons whose duty it is to interfere to prevent 
 threatened A^olence, may make themselves liable for not 
 affording the required protection. The responsibility of the 
 father for the wrongful act of the child conirhitted in his 
 presence, has already been spoken of.^ In Avery v. Bulkly,^ 
 which was an action for assault and battery, the defendants 
 were the captain and lieutenant of a comj^any of militia who 
 were marching in order through the country to a general 
 training under the command of the defendants. The trespass 
 was committed by some of the company under suck circum- 
 stances that the defendants must have known it ; and they 
 took no measures to suppress it, or to detect and punish it 
 after it had happened. A verdict having been found for the 
 plaintiff, the Supreme Court refused to disturb it."' 
 
 22. Place of trial. 
 
 § 214. A state or nation may give its citizens redress for 
 personal injury committed w^ithout as ^vell as within its 
 territorial limits, when it obtains the means of exercising 
 jurisdiction over the wrong-doer. This is recognized by the 
 common law. Many if not most of the actions which are 
 brought are transitory and not local ; and if the cause upon 
 which any one of them is founded arose in a foreign land, it 
 would be just as tenable as if it arose here. The fact, that 
 the redress is given by statute instead of by the common 
 law makes no difference. K penal law is strictly local. 
 But whether a remedial statute is extraterritorial^ in reference 
 to the class of injuries for which it proposes to afford recb'ess 
 or compensation, depends, like other statutes, upon the 
 intention of the Legislature, to be gathered from the lan- 
 guage employed, the law as it previously existed in relation 
 
 in his absence, must be sLown to have done something which led directly to the 
 commission of the offense l>y liis 6otrespasser (Bird v. Lynn, 10 B. Mon. 422). 
 
 ' Ante, § 40. =1 Root, 275. 
 
 * A person who sees an affray may forcibly interfere as a peace-maker, unless 
 he uses more violence tlian is reasonably neceesary for the purpose (Timothy v. 
 Simpson, (> C. & P. 500).
 
 190 ASSAULT AXD BATTERY. §§ 215, 216. 
 
 to tlie same subject, tlie mischief to be prevented, and the 
 remedy to be applied ; and every such statute is to be liberally 
 
 construed.^ 
 
 § 215. In England, it has been held that an action will 
 lie there, for a wrong committed by one English, subject 
 against another in a foreign land, if reparation in damages 
 is sought by process against the person of the wrong-doer, or 
 against his property within the jurisdiction of the court.^ 
 But it seems that in such case, it must be proved that the 
 act causing the damage, was wrongful 1)y tlie law of the 
 country in which it was done.'^ TSTiere a Captain Gambler 
 tore down sutlers' houses in Nova Scotia, which furnished 
 liquor to his sailors, and afterward inadvertently carried one 
 of the sutlers to England in his ship, and the sutler as soon 
 as he landed prosecuted the captain, it was held that the 
 action would lie.^ In New York, it is now^ settled that the 
 courts will entertain jurisdiction of actions for personal 
 injuries committed abroad, when both oi' either of the parties 
 are citizens of the United States.^ ^ 
 
 S 216. AYe have found no case where foreigners have 
 
 ' Beach t. The Bay State Co. 27 Barb. 248 ; s. c. 30 lb. 433 ; but see Vande- 
 venter v. N. Y. & New Haven R. R. Co. 27 Barb. 244. 
 
 ' Scott V. Lord Seymour, 1 H. «fc C. 219; 31 L. J. Exch. 457. 
 
 ^ Mostyn V. Fabrigas, Cowp. 161; 1 Smith's L. C. 607; Dobree v. Napier, 2 
 Bing. N. C. 781 ; Duke of Brunswick v. King of Hanover, 6 Beav. 1. 
 
 ' Cowp. 180. 
 
 ' Glen V. Hodges, 9 Johns. 67 ; Johnson v. Dalton, 1 Cowen, 543 ; Smith v. 
 Bull, 17 Wend. 323; Lister v. Wright, 2 Hill, 320; ]Mussina v. Belden, 6 Abb. 
 165; Latourette v. Clarke, 45 Barb. 327; Dewitt v. Buchanan, 54 lb. 31. 
 
 * The New York Common Pleas, in Molony v. Dows, 8 Abb. Pr. R. 316, 
 held otherwise; but that case is not to be regarded as authority. That decision 
 was probably affected by the necessities of the case, overlooking the second 
 section of the fourth article of the Constitution of the United States, which 
 provides that "the citizens of each State shall be entitled to all the privileges 
 and immunities of citizens in the several States." 
 
 In New York, except so far as the place of trial of actions for injuries to the 
 person has been regulated by statute, such actions have always been regarded 
 as transitory and triable in any court where tke plaiutifl' may elect to bring his 
 action (Mclvorv. McCabe, 16 Abb. 319; but see Chapman v. Wilber, 6 Hill, 475). 
 
 Where the assault and battery is charged to have been committed at M. in the 
 county of H. and within the jurisdiction of the court, it need not be proved to 
 have been committed in the town of M. (Sturgenegger v. Taylor, 3 Brevard, 7 ; 
 Hurley v. Marsh, 1 Scam. 329).
 
 § 217. PLACE OF TRIAL. 107 
 
 been allowed to resort to the English courts to redress their 
 personal wrongs, committed in another country. In Mostyn 
 V. Fabrigas/ Lord Mansfield put, by way of illustration, the 
 instance of two Frenchmen fighting in France, and expressed 
 a doubt of the jurisdiction of the courts in England in such 
 a case. In New York, however, it has been held that the 
 courts of the State will entertain jurisdiction of an action 
 brought by one foreigner against another, for a personal in- 
 jury committed abroad. But, as a matter of policy, the 
 court will only exercise such jurisdiction in exceptional cases. 
 Where, therefore, the case was an ordinary one of assault and 
 battery, committed in Canada, both parties still residing 
 there, and the defendant being casually in the State of New 
 York when arrested, the court said they saw nothing in the 
 case to show why jurisdiction should be entertained. It is 
 most clearly against the interests of those living on the 
 border, for our courts to encourage or entertain jurisdiction 
 of such actions. To do so, would establish a practice which 
 might often be attended with serious disadvantage. The 
 true policy is to refuse jurisdiction, in all such cases, unless 
 for special reasons shown.^ ■^* 
 
 S 217. Courts of common law have coo-nizance of marine 
 trespasses, when it is not a question of prize ; it not being 
 the place, but the nature of the issue, that determines the 
 jurisdiction of the court. Whenever the rights of the parties 
 are to be governed by the municipal law, and not by the law 
 of nations, it would seem to follow as a matter of course, 
 that common law courts have jurisdiction of the case. In 
 
 ' Cowp. 161. 
 
 ^ Dewitt V. Buchanan, 54 Barb. 31. 
 
 * "I have been unable to discover," said James, J., in Dewitt v. Buchanan, 
 supra, " any principle on which the jurisdiction of the court, in such a case as 
 this, can be denied. But, as a question of policy, there are many reasons why 
 jurisdiction should not be entertained. Unless for special reasons, non-resident 
 foreigners should not be permitted the use of our courts to redress wrongs, or en- 
 force contracts committed or made within their own territory. Our courts are 
 organized and maintained at our own expense, for the use, benefit, and. protec- 
 tion of our citizens. Foreigners should not be invited, to bring their matters 
 here for litigation. But if a foreigner flee to this country, he may be pursued 
 and prosecuted here."
 
 198 ASSAULT AXD BATTERY. § 217. 
 
 the act of Congress establisbiug the judicial courts of the 
 Uinted States, there is a sa^dug to suitors in all cases, of the 
 right of a common law remedy, when the common law is 
 competent to give it.^ Actions for injuries to the person, 
 have often been maintained in the common law courts of 
 England, against naval as well as military commanders, by 
 their subordinates, for acts done both at home and abroad, un- 
 der pretence and color of naval and military discipline.^ There 
 are also many cases in the books, where actions have been sus- 
 tained against members of courts martial, naval and military, 
 who have exceeded their authority in the infliction of punish- 
 ment." ^' In an action for assault and battery and false im- 
 prisonment, on the high seas, committed by the commander 
 of a vessel in the United States navy, it was held that the 
 courts of New York have jurisdiction of personal wrongs 
 committed by a superior officer of the navy upon a subor- 
 dinate, while at sea, and engaged in the public service. It 
 was suggested on argument, by the defendant's counsel, that 
 
 ' Hallett V. Novion, 14 Johns. 273. 
 
 ■ Wall V. McNamara, and Swinton v. Molloy, cited, 1 Term R. 536, 537 ; Mostyn 
 V. Fabrigas, Cowp. 161; Warden v. Bailey, 4 Taunt. 67; s. c. 4 Maule v. Selw. 
 400 ; Hannaford v. Hunn, 2 Car. & P. 148. 
 
 ^ 4 Taunt. 70, 75, and cases cited, 
 
 * In the case of Lieut. Trye v. Sir Chaloner Ogle, 1 McArthur on Courts 
 Martial, 268, 4th ed., the defendant was president of a court martial which had 
 sentenced the plaintiff to fifteen years' imprisonment ; when the only charge 
 against him was, that he required a warrant, in writing, to justify him in taking 
 another officer into his custody, under an arrest, which was considered no of- 
 fense. The verdict was 1,000/. The case became somewhat memorable for a 
 collision between the civil and military courts, and for the firmness and triumph 
 of the former. In the course of the trial of the cause, the judge having re- 
 marked that the plaintitf was at liberty to bring ids action against any of 
 the memljers of the court martial, he proceeded against Rear Admiral ]\Iayne 
 and Captain Rentone, who were arrested, by a writ, upon the breaking up of 
 the court martial, where the former presided, and the latter sat as a member. 
 This was much resented by the members of the court martial, who passed reso- 
 lutions on the subject, reflecting, in intemperate language, on the chief justice 
 of the court, Sir John Willes. The resolutions were laid, by the lords of the 
 admiralty, before the king. But the chief ju.stice. without waiting for the re- 
 sult, caused every member of the court martial to be taken into custody for con- 
 tempt, when a stop was put to the proceedings by a public written submission, 
 signed by all of the members of the court martial, and ti'ansmitted to the chief 
 justice, which, after being read in court, was registered in the Remembrancer's 
 Office — "A memorial," as the chief justice observed, "to the present and 
 future ages, that whoever set themselves up in opposition to the laws, or think 
 themselves above the law, will, in the end, find themselves mistaken."
 
 § 218. PLACE OF TRIAL. 199 
 
 inasmuch as the defendant was in the service of the United 
 States when the acts complained of were done, the courts of 
 the State, as a matter of comity and policy, should decline 
 to take jurisdiction, within the principle of Gardner v. 
 Thomas ; ^ hut the court thought otherwise.^ A similar ob- 
 jection was taken and overruled in Percival v. Hickey,'^ 
 which was the case of a marine trespass committed by the 
 commander of a British slooj) of war, Spencer, Ch. J., re- 
 marking that the court was not at liberty to assume or de- 
 cline jurisdiction upon speculative grounds, or for reasons of 
 public j^olicy. 
 
 § 218. The State courts may take cognizance of torts com- 
 mitted on the high seas, on board of a foreign vessel, where 
 both parties are foreigners. But if jurisdiction could be 
 claimed as matter of right, it would introduce a principle 
 which might oftentimes be attended with manifest disad- 
 vantage and serious injury to our own citizens abroad, as well 
 as to foreigners here. It must therefore, on principles of 
 policy, often rest in the sound discretion of the court to 
 afford or withhold jurisdiction, in such cases, according to cir- 
 cumstances.^ '^ 
 
 ' 14 Johns. 134, /wsf, § 218, iiote. = Wilson v. Mackenzie, 7 Hill, 95. 
 
 ^ 18 Johns. 257. * Gardner v. Thomas, 14 Johns. 134. 
 
 • * To hold that jurisdiction could De claimed, in all cases, as matter of right, 
 would introduce a principle which might oftentimes be attended with manifest 
 disadvantage and serious injury to our own citizens abroad, as well as to foreign- 
 ers here. Mariners might so annoy the master of a vessel as to break up the 
 voyage, and thvis produce great distress and ruin to tlie owners. In Gardner v. 
 Thomas, supra, Thomas brought an action against Gardner, in the justices' court 
 of the city of New York, for assault and battery, to which the defendant pleaded 
 that the parties were British subjects, and that the alleged offense was committed 
 on board a British vessel on the high seas. A general demurrer to this plea 
 having been overruled, the court gave judgment for the plaintiif. On error to 
 the Supreme Court, the question presented was whether the courts of the State 
 would take cognizance of a tort committed on the high seas, on board of a 
 foreign vessel, both of the i)arties being subjects or citizens of the country to 
 which the vessel belonged. The court, in deciding that they might do so, but 
 that in the then case, it was not expedient to exercise such a jurisdiction, said: — 
 "It must be conceded that the lavv of nations gives complete and entire juris- 
 diction to the -courts of the country to which the vessel belongs, but not exclu- 
 sively. It is exclusive only as it respects the public injury, but concurrent with 
 the tribunals of other nations as to the private remedy. There may be cases, 
 however, where the refusal to take cognizance of causes for such torts, 
 may be justilied by the manifest public inconvenience and injury, which it
 
 200 ASSAULT AND BATTERY. §§ 219-21. 
 
 23. Holding to hail. 
 
 § 219. In New York, in actions for assault and battery, 
 it lias been held that some special reason must be shown 
 for holdino' the defendant to bail ; as that he is a transient 
 person residing out of the jurisdiction of the court.^ But 
 after the defendant has given bail, and put in an answer, 
 it is too late for him to vacate the order directins; his ar- 
 rest.' 
 
 21. Parties to action. 
 
 § 220, The person upon whom the assault and battery 
 was committed is, in general, the proper party to bring the 
 action. But if the injury has resulted in his death, the action 
 if maintainable, must be brought by his personal representa- 
 tive. AVhen the person assaulted is a servant, and the mas- 
 ter has lost the benefit of his labor in consequence of the 
 assault, the action may be brought both by sei'vant and mas- 
 ter. The servant is entitled to an action for every trifling 
 battery. In the case of the master, however, he must have 
 sustained damage by losing the services of his servant. ^ 
 
 § 221. At common law, the husband has no interest in, 
 or title to, damages occasioned by an injury done to the per- 
 
 would create, to the commnnity of both nations ; and the present is such a case. 
 The facts in this case sufficiently show the impropriety of extending jurisdiction, 
 because it is a suit 1)i-ought by one of the mariners against the master, both 
 foreigners, for a personal injury, sustained on board of a foreign vessel on the 
 high seas, and lying in port when the action was commenced, and, for aught 
 that appears in the case, intending to return to their own countiy without de- 
 lay, other than what the nature of the voyage required. Under such circum- 
 stances, it is manifest that correct policy ought to have induced the court below 
 to have refused jurisdiction, so as to prevent the serious consequences which must 
 result from the introduction of a system, with regard to foreign mariners and 
 vessels, destructive to commerce, since it must materially affect the necessary in- 
 tercourse between nations by which it alone can be maintained. The plaintitf, 
 therefore, ought to have been left to seek redress in the courts of his own country 
 on his return. The judgment, for these reasons, may be deemed to be improvi- 
 dently rendered in the court below, and is, therefore, reversed." 
 
 ' Zimmerman v. Chrisman, 7 Hill, 153. 
 
 " McKenzie v. Hackstaff, 2 E. D. Smith, 75; referring to Chapman v. Snow, 
 1 B. & P. 133; Jones v. Price. 1 East, 81; Crygier v. Long, 1 Johns. Cas. 393; 
 Lewis V. Truesdale, 3 Sandf. 70G. 
 
 = Robert Marv's Case, 9 Co. 205.
 
 §221. PARTIES TO ACTION. 201 
 
 son of the wife ; though money collected on a judgment for 
 such an injury becomes the property of the husband. If the 
 wife die pendente lite, the action abates. If the husband die 
 before action brought, or pendente lite, the action survives to 
 the wife. ^ The injury to the person of the wife, is therefore 
 the meritorious cause of action. In AVisconsin an action 
 under the statute^ for injury inflicted on a married woman, 
 resulting in her death, must be brought by the executor or 
 administrator. ^ In New York, the statute ^ has changed the 
 common law rights of the husband and wife in respect to 
 torts committed upon the person of the wife, and has made 
 her the sole plaintiff in actions brought for them, and given 
 her the exclusive right to the damages therefor, and has taken 
 from the husband all right to, or control over, the same, in 
 actions brought for such injuries. Damages for assault and 
 battery on the ^vife, are now made a part of her separate 
 estate, and in respect to them she is as a feme sole.'^ And an 
 action may be brought by her alone against a wrong-doer, for 
 an injury to her person committed previous to the passage of 
 the statute.^ f Where an action is brought against a married 
 w^oman for assault and battery, the husband may be made a 
 
 ' Rev. Sts. ch. 135, §§ 13, 13. 
 
 ' Whiton V. Chicago &c. R. R. Co. 21 Wis. 305. 
 
 =■ Sts. (ff 1860, ch. 90; and of 1863, ch. 173. 
 
 * Mann v. Marsh, 35 Barb., 68; s. c. 31 How. 373. 
 " Ball V. Bnllard, 53 Barb. 141. 
 
 * At common law, the recovery in such an action, was for the benefit of the 
 husband, and he could biing acire facias in his own name upon a judgment re- 
 covered in the names of himself and wife. If the money was collected, and 
 came to the hands of the wife, it nevertheless was the property of the husband, 
 and went to his representatives (Com. Dig. Baron &' Feme, X ; Washburn v. 
 Hale, 10 Pick. 429; Southworth agst. Packard, 7 Mass. 95; Maun agst. Marsh, 
 sxipra). 
 
 In Pennsylvania, damages for injury to the person of the wife, belong to her 
 (Jeanes v. Davis, 3 Peun. L. J. 60). 
 
 t The language of the statute referred to in Ball v. Bullard, s'/j>;y/, is as fol- 
 lows : "Any married woman may bring and maintain an action in her own name, 
 for damages against any person, * * * for any injury to her person, =^ * * 
 the same as if she were sole, and the money received on the settlement of any 
 such action, or recovered upon a judgment, shall be her sole and separate prop- 
 erty." 
 
 A husband cannot maintain an action in his own right, for mental suflfering 
 caused l)y injury to his wife (Hyatt v. Adams, 10 Mich. 180).
 
 ^202 ASSAULT AND BATTERY. §§ 222, 223. 
 
 party defendant. ^ In such case, both the husband and the 
 Avife are liable ; and judgment being against both, the execu- 
 tion nuist follow it, and direct the collection of damages and 
 costs out of the j^roperty of both. The judgment becomes a 
 lien on the real estate of which the husband is owner at the 
 time of its rendition, and on such as he thereafter acquires ; 
 and his death will not impair the lien of the judgment, nor 
 the right of the plaintiff to enforce it against the land. ^ For 
 a joint assault committed l)y husband and wife, he should be 
 sued alone. ^ 
 
 § 222. When an assault and battery is committed by A. 
 and B. the acts are distinct ; the stroke of A. in fact not being 
 the stroke of B., and vice versa. But by operation of law, 
 these distinct acts are amalgamated, and in all their parts? 
 become the united act of both. The cause of action is one 
 and indivisible, and the remedy is joint or several, at the 
 option of the plaintiff.^ The action will lie against a cor- 
 poration, and an individual may be joined as codefendant. ^ 
 
 § 223. Where in an action for assault and battery against 
 three, two of the defendants being non-residents cannot be 
 served, the defendant who is served with process, cannot ob- 
 ject that the court has no jurisdiction for the want of service 
 upon the other defendants by a motion for the dismissal of 
 the action. The plaintiif may discontinue as to the defend- 
 ants not served at any time before the trial, and proceed to 
 a several judgment against the defendant served.*'* In 
 
 ' Anderson v. Hill, 52 Barb. 238; K Y. Code, § 114; ante, § 38. 
 
 ' Flanagan v. Tinen, 53 Barb. 587. = Sisco v. Cheeney, Wright R. 9. 
 
 ' Sheldon v. Kibbe, 3 Conn. 214; ante, § 61. 
 
 " Brokaw v. N. J. R. R. Co. 3 Vroom, 328. 
 
 ^ McKenzie v. Hackstaff, 2 E. D. Smith, 75. 
 
 * In the above case, the court said: "For a ti'espass of this description, the 
 plaintiff has his election to bring a sej^arate action against one of the trespassers, 
 or to unite them all in one action. I do not see that the action should be de- 
 feated as respects the defendant served because he has failed to serve process 
 upon the other defendants, or that he should be compelled, when he has served 
 one of the defendants, to strike out the defendants not served. He may have it 
 in his power to serve the other defendants before the cause is brouglit to a hear- 
 ing; and the ends of justice would be served by having but one trial, and by his
 
 §224. DECLARATION. 203 
 
 Maryland it lias been held that where 01113^ one of the joint 
 wrong-doers is taken, Imt the other is afterward brought in 
 on the renewal of the writ, the court upon motion may con- 
 consolidate the cases, though they stand separately on the 
 docket. ^ 
 
 25. Declaration. 
 
 § 224. Causes of action which are essentially distinct, %o 
 that the verdict will not show for which it was rendered, 
 cannot be united. This is not the case of a complaint which 
 charges that the plaintiff was assaulted, dragged through the 
 public streets, detained in the custody of the sheriff, and re- 
 strained of his liberty "without probable cause, by which he 
 was wounded, injured in credit, and hindered in business.^ 
 But a complaint which stated facts constituting a cause of 
 action for an assault and battery, and also a cause of action 
 for slander, both in a single count, and alleged that the 
 plaintiff was greatly injured in her person, and also in her 
 character and feelings, and claimed damages generally, for 
 
 obtaining one judgment against all of them. If he fail to serve them no juris- 
 diction is acquired as to them, nor is the party served in anywise prejudiced. I 
 do not see how he can be afl'ected by their names continuing in the process, or 
 that it is essential to his right that the proceedings should be discontinued as to 
 them." 
 
 In Northrup agst. Brush & Isaacs (Kirby R. 108), Brush invited the plaintiff 
 into a private room of a coffee house in New Haven, under the pretence of busi- 
 ness, and there assaulted him with loaded pistols ; and Isaacs came into the room 
 and aided Brush in further assaulting and beating the plaintiff, no other person 
 being present. It was held that this constituted a secret assault within the stat- 
 ute, although committed in a public house and by a plurality of persons. The 
 court said: "Two persons may commit an assault jointly; and if it is out of the 
 presence or view of others, it is a secret assault; and although the person 
 assaulted may proceed against one of them in a common action of trespass, and 
 take the otiier for a witness, yet he is not obliged to pursue that method. One 
 of them alone may be insufficient to repair the damages; and it may also be un- 
 safe for him to rest on the testimony of a person whose malignity had induced 
 him to join in a secret attack upon his person ; and it is for the public jjeace and 
 safety, that both the assailants should be complained of, that they may be pun- 
 ished criminalitery 
 
 Where a railroad conductor unlawfully puts a ])assenger out of the cars, and 
 nn action therefor is brought against the company and the conductor jointly, and 
 a verdict is rendered against the company and in favor of the conductor, the 
 joinder of the defendants is not a ground of exception by the company after ver- 
 dict (Moore v. Fitcliburg R. R. Corp. 4 Gray, 465). 
 
 ' Mitcliell V. Smitli, 4 Md. 403. 
 
 ' Sheldon v. Lake, 40 How. Pr. R. 489 ; 9 Abb. Pr. R. N. S. 306.
 
 204 ASSAULT AND BATTERY. , § 224. 
 
 tlie sum of $2,000, was held bad on demurrer.^ ^ Under a 
 statute antliorizing one or more counts in trespass to be 
 joined with one or more counts of trespass on the case, where 
 all such counts are for the same cause of action, the first 
 count in the declaration Avas in trespass for forcibly ejecting 
 the plaintiff from the defendant's cars, and beating and kick- 
 ing him in so doing, he at the time being lawfully therein, 
 as a passenger from New Haven to Middletown. The other 
 counts were in case, and were alleged to be for the same 
 cause of action. But the second count not only alleged an 
 injury to the plaintiff's person, by Ijeing carelessly thrust 
 from the defendant's car, but it also alleged that for certain 
 hire and reward, the defendants also undertook to transport 
 safely to said Middletown, the plaintiff's tool chest, and that 
 they so negligently handled and transported said tool chest, 
 that by reason of their negligence and cai'elessness, they 
 greatly injured the same. It was held that as the allegations 
 in respect to the chest of tools contained everything that was 
 essential to a recovery, both counts could not be for the 
 same cause of action, and that there was therefore a mis- 
 joinder of counts.'^ Where, however, the action was for 
 fraudulently inducing the plaintiff' to marry the defendant, 
 and to cohabit with him, and also for assault and battery, it 
 was held that as the causes of action appeared on the face 
 of the complaint, and the defendant had not demurred, 
 
 * Anderson v. Hill, 53 Barb. 238, overruling Brewer v. Temple, 15 How. Pr. 
 K. 386. 
 
 ' Havens v. Hartford & New Haveu R. R. Co. 2G Conn. 220. 
 
 * In Anderson v. Hill, s^ipra, the court said: "The causes of action are not 
 separately stated, as required by the Code and every other tolerable system or 
 idea of pleading; but I)oth are intermingled and woven together in a single 
 fabric of manual and vocal tort, causes of action for words and blows thrown 
 into ' hotch pot.' and counted upon in that condition. Nothing is claimed as 
 damages for the injury arising from the battery as such, and nothing for the in- 
 jury arising from the slander. Neither cause is claimed to have injured sepa- 
 rately; but the injury and consequejit damages spring from the union of the two 
 wrongs. Should a verdict be rendered in the plaintiffs favor, it must neces- 
 sarily be a single verdict, and it would not appear, and no one could ascertain, 
 not even the parties themselves, how much the plaintiff had been injured in per- 
 son, or how much in character, nor what measure of compensation had been 
 awarded for either injury. Surely justice ought not to be so administered, un- 
 less the statute imperatively requires it."
 
 §§ 225-27. DECLARATION. 205 
 
 lie had waived the objection, and could not raise it upon the 
 trial, as the court had jurisdiction, and the complaint stated 
 facts sufficient to constitute a cause of action.^ 
 
 § 225. When one of the causes of action is but an aggra- 
 vation of the other, such as entering the plaintiff's close, and 
 committing an assault and battery upon him, they may be 
 united.^ Where the declaration was for entering the plaint- 
 iflPs house, taking his goods, and assaulting, terrifying, and 
 imprisoning the wife and daughter of the plaintiff, and the 
 plaintiff entered on the record a release of damages on ac- 
 count of the terrifying and imprisoning, the declaration was 
 held good.^ And where the defendant was charged not 
 merely with forcibly breaking and entering the dwelling- 
 house of the plaintiff, but with an assault and battery, and 
 with other outrages on the person of the plaintiff, as well as 
 with the abuse of his family, and that part of the charge that 
 related t<5 the forcible entry was not sustained, it was held 
 that the plaintiff, notwithstanding, was entitled to recover.* 
 
 S 226. It should not be alieo;ed that the assault and bat- 
 tery were committed on different days. A declaration which 
 charged that the defendant on such a day, and on divers 
 other days and times, <fec., made an assault on the plaintiff, 
 was deemed bad on special demurrer.^ But it has been held 
 that trespass for assault and false imprisonment may be laid 
 diversis diehus et vicihus.^ 
 
 § 227. Allegations or omissions which are merely formal 
 will be disregarded. The name given to the action in the 
 commencement of the declaration is mere surplusage, the sub- 
 stance of the declaration controlling in this respectJ The 
 general rule which governs in deciding on the form of the 
 declaration in all cases, is that it should state the gravamen 
 
 ' Blossom V. Barrett, 37 N. Y. 434 ; N. Y. Code, §§ 144, 147, 148. 
 
 ^ Flinn v. Anders, 9 Ired. 328, = Heminway v. Saxtou, 3 Mass. 221. 
 
 " Sampson v. Henry, 13 Pick. 3G. 
 
 ' English V. Purser, G East, 393 ; 2 Smith, 445'; but see ;ws^, § 252. 
 
 ' Burgess v. Freelove, 2 B. & P. 425. ' Burdick v. Worrall, 4 Barb. 596.
 
 20G ASSAULT AND BATTERY. § 228. 
 
 witli sufficient certainty, that the defendant may know what 
 to answer, and that certainty to a common intent is suffi- 
 cient.* In an action for driving against the i^laintiiFs chaise, 
 whereby he was thrown out and injured, the declaration 
 need not allege to whom the chaise belonged at the time of 
 the occurrence.^ It is not necessary to aver that the assault 
 and battery was wilful or malicious.^ 
 
 26. Plea. 
 
 § 228. In an action for assault and battery, a plea of 
 the general issue simply denies the fact of the trespass 
 alleged, and any justification — as that the plaintiff was the 
 
 ' Hopper V. Reeve. 1 Moore, 40? : 7 Taunt. 698 ; and see Howard v. Peete, 2 
 Chit. 315. 
 
 ^ Andrews v. Stone. 10 Minn. 72. 
 
 * Formerly, declarations with a quod cum were holden bad, and no judgment 
 could be rendered thereon even after verdict ; and the defect was not considered as 
 cured by any of the English statutes of amendment or jeofails. But now a declara- 
 tion of this description is not batl, even on special demurrer. In Coffin v. Coffin, 3 
 Mass. 358. a verdict having been found for the plaintiff" upon the general issue, 
 the defendant moved in arrest of judgment, on the ground that as the declara- 
 tion began '^ for that whereas^''' (fcc, by way of recital, it was not sufficiently 
 certain and positive. The objection was, however, overruled. The court said : 
 In the action before us, the person and case cannot be misunderstood by the 
 court from the unnecessary use of the word '' irftereas."' Its insertion is a mere 
 technical mistake in form, and not a substantial error; and we think that it is 
 mere surplusage, and after verdict shall be rejected. It is not necessary to de- 
 cide what judgment would have been given, had the defendant demurred spe- 
 cially to this declai'ation. But as it is a matter of practice, and the negligence 
 or unskilfulness of attorneys may again bring up the question, we are fully satis- 
 fied that, as the mistake is merely formal, and not substantial, a general demurrer 
 would not avail the defendant. 
 
 In Benson v. Swift, 2 Mass. 50, which was an action for assault and battery, 
 one of the counts in the declaration, after alleging that the defendant beat the 
 plaintiff with a plank, proceeded as follows: "'And there afterwards, the said 
 Benjamin continuing his assault last aforesaid, on the body of the said Benson with 
 force and arms, viz., with four parts of two and a half inch roise, did beat," &c. 
 It was objected to this count by the defendant, after a general verdict for the 
 plaiutitf, on a motion in arrest of judgment, that it alleged an assault and bat- 
 tery with a continuando. The court Avere, however, unanimous in the opinion 
 that the declaration was good. Sedgwick, J., said: "Although it must be con- 
 fessed that the words made use of in this count, " there afterwards," are usually 
 inserted to disjoin allegations of material and issuable facts, yet in this case, on 
 a careful jDerusal, it does appear to me that it may fairly be understood that the 
 story intended to be told by the phiintiif is, that the defendant made an assault, 
 and that during the continuance of that assault he beat the plaintiff, first witli 
 a plank and then with a rope. The assault is the same; but one assault is 
 alleged ; the beating was a continued injury, and the instruments only different. 
 This seems to me to be the reasonable construction, and not tliat two distinct 
 and independent injuries are intended to be charged."
 
 §229. PLEA. 207 
 
 first aggressor — must be set up by special plea. Where, 
 therefore, the jury were instructed that if the defendant 
 committed an assault and battery upon the person of the 
 plaintiff, he might, nevertheless, prove in his defense under 
 the general issue, that the plaintiff in fact made the first 
 assault, and was endeavoring to wrest from him an axe, and 
 that the assault and beating complained of in the writ were 
 no greater or other than were necessary on the part of the 
 defendant to resist and defeat the unlawful attempts of the 
 plaintiff, it was held that such a defense was inappropriate 
 under the plea, and that the instructions were, therefore, 
 erroneous.^ So, likewise, where in an action for driving a 
 cart over the plaintiff, the defendant endeavored to show, 
 under the plea of not guilty, that the plaintiff slipped off of 
 the edge of the pavement just before the defendant's horse 
 and cart, and that the injury occurred without any negli- 
 gence of the defendant, it was held that this admitted the 
 trespass to have been the act of the defendant, and set up 
 matter of excuse, and that it should therefore have been 
 specially pleaded.^ ^ 
 
 § 229. When the defendant interposes a special plea of 
 justification, he must either state circumstances which excuse 
 
 ' Jewett V. Goodall, 19 N. Hamp. 562; 1 Sauncl. PI. &Ev. 95; 1 Selw. N. 
 P. 125; Lairv. Abrams, 5 Blackf. 191. 
 
 = Hall V. Fearnley, 3 Gale & D. 10; 12 L. J. N. S. 22; 7 Jur. 61. 
 
 * To a declaration charging that the defendant assaulted the plaintiff, im- 
 prisoned him, and kept him in prison contrary to law, and against his will, the 
 defendant pleaded that he committed the trespass by leave and license of the 
 plaintiff. On special demurrer, the plea was held bad, as amounting to the 
 general issue, so far as regarded the assault (Christopherson v. Bare, 11 Q. B. 
 473; 12 Jur. 374; 17 L. J. 109). 
 
 Whether the plea was not bad for the same reason as regarded the imprison- 
 ment — quere (lb.). 
 
 Trespass was brought against three defendants for an assault committed in 
 Bristol. Two of them were constables of Oxford, and had come down and 
 taken the plaintiff at Bristol (thus committing the assault), on suspicion of his 
 having stolen a hol'se belonging to the other defendant in Oxfordshire. The 
 declaration set out all the trespasses to have been done without reasonable or 
 probable cause. The two constables, having pleaded not guilty, it was held that 
 they might give the special matter in evidence in mitigation of damages to show 
 that there was reasonable and probable cause, but that as they had acted out of 
 their jurisdiction, they were not entitled as constables to give the special matter 
 in evidence under the general issue as a defense (Rowcliffe v. Murrav, 1 Car. & 
 M. 513).
 
 208 ' ASSAULT AND BATTERY. " § 229. 
 
 the act charged, or show it to be lawful, thereby admitting 
 the act ; otherwise, his plea only amounts to the general 
 issue. Mr. Chitty,^ in support of this rule, states the follow- 
 ing case : In trespass for an assault and battery, when the 
 defendant pleaded that he was riding a horse in the king's 
 highway, and that his horse, being frightened, ran away with 
 him, and that the plaintiif was desired to go out of the way 
 and did not, and the horse ran upon the plaintiff against the 
 defendant's will ; on demurrer, the plaintiff Lad judgment, 
 because the defendant had assumed to justify the battery 
 and yet had not confessed that which amounted to a battery 
 by himself For if the horse ran away against the will of 
 his rider, it could not ])e said, with any color of reason, to be 
 a battery in the rider ; and it was admitted by the court, 
 that if the defendant had pleaded not guilty, this matter 
 might have acquitted him upon evidence. ^ In Blood v. 
 Adams,^ the declaration charged the defendant with making 
 a violent assault upon the plaintiif — that he beat, bruised, 
 and wounded him — and that he forcibly and violently ejected 
 him from a railroad car. The defendant pleaded the general 
 issue and special pleas in justification. The latter began 
 with a traverse of all that was alleged in the declaration, ex- 
 cept the ejecting the plaintifl:' from the cars, and as to that, 
 set lip a special justification that the defendant was the con- 
 ductor of the train, and that the plaintiff was in the cars 
 without a ticket, and that upon being called upon by the de- 
 fendant to pay his fare, he refused. The pleas then went on 
 to say : " And the said defendant, then and there required of 
 the plaintiff, as he, the said defendant for the cause aforesaid, 
 lawfully might, that he, the said plaintiff, should then and 
 there leave the said train of cars, and be no further carried 
 as a passenger thereby. And thereupon the said plaintiff 
 did, then and there, in pursuance of the said requirement and 
 command of the said conductor, as aforesaid, leave the said 
 
 ' 1 Chitty's PI. 511. 
 
 ^ Gibbon v. Pepper, 2 Salk. 637 ; s. c. 1 Ld. Raym. 38. ' 33 Vt. 52.
 
 §§ 230-32. PLEA. 209 
 
 train of passenger cars, wliicli is the same ejecting, &c." It 
 was held, that as the alleged trespass was not admitted, the 
 pleas in justification were bad, as amounting only to the 
 general issue. 
 
 § 230. Son assault demesne, which is a plea averring that 
 the plaintiff first assaulted the defendant, who thereupon 
 necessarily committed the alleged assault in his own defense, 
 confesses the assault, although the allegation is '* before the 
 time when," &c. ; ^ and so, likewise, although laid before the 
 day of the memorandum of the declaration, and found to 
 have been committed afterward.^ 
 
 § 231. If the defendant is compelled, in self-defense, to 
 employ more than moderate force, he must allege it in his 
 plea.^ Where, therefore, the declaration alleged that the de- 
 fendant assaulted, seized, violently pulled and dragged about, 
 struck and imprisoned the plaintiff, it was held, that a plea 
 which justified the arrest and imprisonment by virtue of 
 legal process, was bad, in not averring that the acts of vio- 
 lence were rendered necessary by the resistance of the 
 plaintiff.* But the defendant need not minutely detail the 
 circumstances under which the plaintiff' first assaulted him.^ 
 
 § 232. A plea which answers the assault, answers also 
 the battery.^ Where the declaration stated that the defend- 
 ant assaulted the plaintiff, and wrenched a stick from his 
 hand, and with the said stick, and with his fists, gave the 
 plaintiff many violent blows, and the defendant pleaded as 
 to assaulting the plaintiff with the stick and his fist son 
 assault demesne, it was held, after verdict, that the plea 
 sufficiently justified tlie battery with the stick, as well as the 
 assault with it.''' 
 
 ' Wise V. Hodsoll, 3 Per. & D. 510; 11 Ad. & E. 81G; 4 Jur. 553. 
 
 "" Hay V. Kitchen, 1 Wils. 171. 
 
 ' Mellen v. Thompson et al., 33 Vt. 407, referrino- to Chittv's Precedents, 
 b. 3, 1071. 
 
 * Kreger v. Osborn, 7 Blackf. 74. ' Mellen v. Thompson, sup?'a. 
 
 " Bryan v. Bates, 15 111. 87. 
 
 ' Blunt V. Beaumont, 2 C. M. & R. 413; 4 Dowl. P. C. 319; 5 Tyr. 1100. 
 
 Vol. I.— 14
 
 210 ASSAULT AND BATTERY. § 233. 
 
 § 233. The plea of molliter manus impo8idt^ includes 
 justifications of property real or personal, the removal of a 
 person unlawfully uj^on the premises or in the house of the 
 defendant, arrest under process, c^c. Pleas in justification 
 of the moderate correction of an apprentice or pupil are 
 very similar in principle. None of these pleas, in the usual 
 and general form, are a good answer to a declaration alleging 
 extraordinary or aggravated force and violence, for the reason 
 that the right w^hich the defendant sets up, does not pri- 
 marily authorize, nor its exercise require, anything more than 
 gentle force. The j^lea only shows a right to use moderate 
 force, wdiile it admits the declaration to be true which charges 
 an immoderate and aggravated use of it. If the plaintiff 
 forcibly resisted the. defendant in this exercise of bis right, 
 whereby it became necessary, and the defendant became 
 entitled to use more than moderate or gentle force to assert 
 bis right, this also, must be set forth in the plea ; and wben 
 tbis is done, the plea becomes analogous to the plea of son 
 assault^ and it is necessary to set forth minutely or particularly 
 the nature and extent of tlie force used by the plaintiff, to 
 make the plea a sufficient answer to the declaration.^ There- 
 fore sucb a plea to justify the turning of the plaintiff out of 
 the defendant's house, wbere she continued against his will, 
 is no answer to a charge against the defendant, for striking 
 the plaintiff repeated blows, and with great force and violence, 
 several times knocking ber down.^ So likewise where in an 
 action against a schoolmaster for an assault and battery on a 
 scholar, the plea alleged that tbe plaintiff was insolent, and 
 refused to obey the reasonable commands of the defendant, 
 and that thereupon the defendant moderately chastised him ; 
 but averred no acts of the plaintiff^ which called for excessive 
 
 ' Mellen v. Thompson, 32 Vt. 407. 
 
 ^ Gregory v. Hill, 8 Term R. 299 ; and see Johnson v. JSTorthwood, 1 Moore, 
 420 ; 7 Taunt. 689. 
 
 * That the defendant liid hands on the plaintiff gently. Mollify manvs 
 imposuit, is an answer to the battery (Titley v. Foxall, 2 Ld. Ken. 308).
 
 §§ 234, 235. PLEA. 211 
 
 severity on tlie part of the defendant ; it was held that the 
 plea did not disclose a sufficient justification.^ 
 
 § 234. Under the foregoing rule, a plea of moUiter Tnanus 
 imposuit, would not be a good answer to a declaration alleg- 
 ing a wounding of the plaintiff. In an early case in Ken- 
 tucky, where in action for assault and battery and wounding, 
 the plea alleged that the defendants gently laid h^nds on the 
 plaintiff to arrest him for felony, and inflicted no more injury 
 than was necessary to effect the arrest ; it was held that as 
 the plea did not justify the wounding, it was bad.^ Subse- 
 quently in the same State, where in an action for trespass on 
 land, and for assault and battery and wounding, the defend- 
 ants pleaded that the plaintiff had caused a tree to fall across 
 a navigable stream down which they were sailing, and that 
 to enable them to proceed, they were obliged to remove the 
 tree ; that the plaintiff stood upon it with an ax, threatening 
 to resist the removal, and that they thereupon gently laid 
 hands upon him ; it was held that the plea was not sufficient, 
 as it did not justify the wounding.^ 
 
 § 235. When in an action for assault and battery the 
 declaration charges several distinct and separate assaults, the 
 defendant's plea must answer all of the trespasses, and show 
 the circumstances leading to each assault, which exonerate 
 him from liability ;* and if the several assaults are laid in 
 separate counts, the plea must show distinct occasions upon 
 which the defendant was justified in committing each partic- 
 ular trespass.^ Trespass for that the defendant assaulted the 
 plaintiff, and beat, bruised, pushed, dragged and pulled 
 about, kicked, wounded, and ill-treated him, and then 
 knocked down and prostrated him on the deck of a certain ves- 
 sel, and then hit and struck him numerous blows, tfec. Plea, 
 
 ' Hathaway v. Rice, 19 Vt. 103. ^ Boles v. Pinkerton, 1 Dana, 453. 
 
 ^ Brubukcr v. Paul, 7 Dana. 428; aivJ see French v, Marstin, 4 Fost. 440. 
 ' M'Curday v. Drisooll, 1 C. «& i\T. G18; Stammers v. Yearsley, 10 Bing. 35; 
 Nodcn V. Jolinson, l(i Q. B. 218; Bush v. Parker, 4 M. & S. 588. 
 ' M'Curday v. DriscoU, supra.
 
 212 ASSAULT AND BATTERY. § 236. 
 
 as to the assaulting, beating and ill-treating of the plaintiff, 
 justification as captain of a vessel wherein the plaintiff and 
 other persons were passengers, and that the plaintiff' made a 
 great noise, disturbance and affray on board, and was then 
 fighting with a certain other person, " then also being a j)as- 
 senger in and on board of the said vessel, and whose name 
 was to the defendant unknown," and was striving to beat 
 and w^ound the said person ; wherefore the defendant, for 
 the preservation of the peace, and to preserve due order and 
 discipline in the vessel, &c., then as such captain, moUiter 
 mamis imposuit. Replication de injuria. It was held that 
 the allegation that the defendant knocked down and pros. 
 trated the plaintiff on the deck was alleged in the declaration 
 as a distinct assault from the others, and that it was not cov- 
 ered by the justification in the plea, and that consequently, 
 upon proof of such assault, the plaintiff was entitled to dam- 
 ages.^ 
 
 § 236. If the defendant would plead in bar generally, he 
 may commence his plea with such a general reference to the 
 charges contained in the declaration as will necessarily em- 
 brace the whole subject of complaint; or he may set down in 
 detail the several alleged acts w^hich he proposes to justify. 
 But in the latter case the justification is usually confined to 
 the acts thus specified. So that if the declaration alleges a 
 mayhem or a wounding and knocking the j^laintiff' down,, 
 and the plea is silent in these particulars, such charges will 
 not, in general, be held to come within the scope of the jus- 
 tification.^* Where therefore, in an action for assaulting, 
 beating and ill-treating the plaintiff, and beating and strik- 
 ing her down with a truncheon, whereby her thigh was 
 
 * Noden v. Johnson, myra. ^ Hathaway v. Eice, 19 Vt. 103. 
 
 * The answer set up three separate defenses : First, a denial of the assault and 
 battery; second, that the plaintiff made the first assault, which was repelled by 
 the defendant in self-defense ; third, that the defendant was in his own dwell- 
 ing, and the lalaintiff was unlawfully there and refused to leave, and he used 
 suiiicient force to put him out, and only such force as was necessary. Held, that 
 these defenses were consistent with each other, both at common law and under 
 the statute of Missouri (Rhine v. Montgomery, 50 Mo. 560 ; referring to Nelsoa 
 V. Brodhack, 44 lb. 596; Lansingh v. Parker, 9 How. Pr. 288).
 
 § 236. PLEA. 213 
 
 broken, the defendant pleaded, first, not guilty ; and second- 
 ly, as to assaulting, beating and ill-treating the plaintiff, that 
 the defendant was possessed of a house, and the plaintiff was 
 making a disturbance therein, and the defendant gently laid 
 his hands on her to turn her out ; — it was held that the 
 special plea was bad, in not setting up a justification of the 
 striking and wounding.^ So like^vise, where the plaintiff 
 declared for an assault in seizing and laying hold of him, 
 pulling and dragging him about, striking him, forcing him 
 out of a field into and through a pond, and then imprisoning 
 him, and the plea justified the assaulting, seizing and laying 
 hold of the plaintiff, and pulling and dragging him about; 
 it was held not a sufficient answer to the entire charo;e in 
 the declaration.^ * Where, however, the declaration was for 
 assault, battery and tearing of clothes, and the defendant 
 pleaded not guilty of the said supposed assaults in manner 
 and form as the plaintiff complained, it was held that this 
 included a denial of the battery and tearing of the clothes, 
 
 ' Oakes v. Wood, 2 Mees. & W. 791. 
 
 ^ Bush V. Parker, 4 M. & S. 588; 1 Bing. N. C. 72. 
 
 * In an action for an assault, tlie defendant pleaded that he and twenty-one 
 otliers were possessed of a close, and were thereon lawfully playing a lawful 
 game at cricket; that the plaintift'came unlawfully on the close, and interrupted 
 the defendant and the twenty-one in playing the lawfiU game, whereupon the 
 defendant, in his own right and by the authority of the twenty-one, requested 
 him to depart from the close, and desist from disturbing their game, which he 
 refused; whereupon the defendant removed him out of the close. It appeared 
 that the defendant and twenty-one others were playing, but were not otherwise 
 possessed of the field, and that the plaintiff interrupted them by remaining on 
 the ground occupied by the players when requested to leave it. It was held that 
 the facts might have constituted a justification in defense of the lawful game, if 
 so pleaded; but that as the plea justified the trespass in right of the jiossession 
 of the close, it was not proved (Holmes v. Bagge, 1 El. & B. 782; 22 L. J. N. S. 
 Q. B. 30r). 
 
 To a declaration of trespass qnnre dausiim f regit, containing a count for an as- 
 sault, the defendant pleaded, among other things, liherum tenementum in J. W., 
 and a justification of the trespass on that ground ; and that because the plaintiff 
 was " unlawfully in possession," the defendants, as servants of J. W., and by his 
 command, ejected her; and in so doing, because she resisted, committed the 
 assault. The plaintiff replied that she was lawfully possessed, and was lawfully 
 entitled to her possession as against the defendants, with a special traverse that 
 the plaintiff was unlawfully in possession or occupation. It was held, on special 
 demurrer to the replication, that the plea was substantially one of Uberum tene- 
 mentum, and therefore bad as attempting to justify an assault (Roberts v. Taylor, 
 3 Dowl. & L. 1).
 
 214 ASSAULT AND BATTERY. § 237. 
 
 as well as the assault.^ And where, in an action of trespass 
 for assault and battery, the plea commenced in bar to the 
 action generally, and proceeded to allege that before and at 
 the several times in the declaration mentioned, the defendant 
 was a schoolmaster and the plaintiff his scholar ; that the 
 plaintiff was then and there guilty of the insolence and dis- 
 obedience alleged, whereupon the defendant corrected him, 
 &c., it was held that in order to give to this language its 
 obvious and natural import, it should be understood in a 
 plural and distributive sense, as applying to different occa- 
 sions on which the trespasses were charged, and that it must 
 be taken as a plea to the whole declaration.^ 
 
 § 237. When the plaintiff's declaration sets forth a very 
 aggravated assault and batteiy, and not only charges the 
 defendant with cruelly beating, but also with kicking and 
 choking him, such allegations are not to be regarded merely as 
 matter in aggravation of the assault and battery complained 
 of, and therefore covered and answered by any plea which 
 would be a good answer to a simple charge of that kind, but 
 as substantive allegations of various acts of trespass to the 
 person of the plaintiff; and any plea which admits the 
 whole declaration, and professes to justify all that is 
 charged in it, must contain sufficient to apparently justify 
 the defendant for all that the declaration alleges. But in 
 such cases a plea averring that the plaintiff made the first 
 assault, and justifying the assault and battery in self-defense, 
 is a good answer to the whole declaration. And where the 
 attendant circumstances are mere matters of aggravation of 
 the original trespass, and do not in themselves constitute 
 substantive trespasses, the defendant need only justify the 
 principal act.'^ But if he fail to justify the latter, his plea 
 will be insufficient. To a count in trespass charging the 
 defendant with having assaulted the plaintiff on board a 
 ship on the high sea, and forcing and compelling him, then 
 
 ' Weathrell v. Howard, 3 Bing. 135; 10 Moore, 503. 
 
 ^ Hathaway v. Rice, 19 Vt. 102. = Taylor v. Cole, 1 H. Bl. 561.
 
 § 238. PLEA. 215 
 
 being sick, to stand and remain standing on the deck for the 
 space of one hour, a plea in justification as to the forcing and 
 compelling the plaintiff to stand and remain standing upon 
 the deck was held bad as attempting to justify that which 
 was mere matter of ao;ojravation/ 
 
 § 238. The plea may be amended as to a substantive de- 
 fense to the identical transaction charged. In a late case in New 
 York,^ after verdict for the plaintiff, a new trial was granted 
 for the refusal of the court to allow the defendant to amend 
 his answer. The proposed amendment was in substance 
 that the assault and battery complained of was a part of the 
 identical transaction for wdiich the defendant' had first re- 
 covered damages in action for assault and battery against the 
 plaintiff. It was held that as this formed a substantive 
 defense the amendment was a matter of right. But where 
 the proposed amendment relates to a difierent transaction 
 from that alleged and proved by the plaintifi', it will not be 
 allowed. Therefore, where, in an action for assaulting the 
 plaintiff, the defendants pleaded that the plaintiff' was beat- 
 ing a certain boy, whose name was to the defendants un- 
 known ; and that the defendants, to prevent his beating the 
 boy, quietly laid their hands upon him. Replication that 
 the boy in the plea mentioned was one B. W., and was and 
 is the lawful son of the plaintiff*, of the age of ten years ; and 
 that B. W. refused to obey his lawful commands, whereupon 
 the plaintiff' moderately chastised him. Rejoinder that the 
 plaintiff at the time when, tfec, was beating B. W. with 
 more violence than was proper and reasonable. It was 
 proved on the part of the plaintiff', that just before the de- 
 fendants interfered with him he had beaten his son B. W., 
 ^vho was ten years old, with a strap, but not immoderately ; 
 and it was proved, in behalf of the defendants, that after the 
 plaintiff had beaten his elder son, B. W., he began beating 
 the next younger son, when the defendants laid hold of him. 
 
 ' Griffiths V. Dunnett, 8 Scott N. R. 83G, = Bailey v. Kay, 50 Barb. 110.
 
 216 ASSAULT AND BATTERY. § 239. 
 
 It was held that the issue was limited to the question of the 
 excessive beating of B. W., and, as the two boys had both 
 been beaten, the judge at the trial would not allow any 
 amendment as to the name of B. W.^ 
 
 27. liepUcation. 
 
 § 239. In trespass to the jDerson, if the defendant has 
 pleaded merely in excuse, and not in justification, the replica- 
 tion de injuria or de son tort demesne is in general proper if 
 the plea be wholly untrue. But if the plea be true, and the 
 plaintiff did in fact commit what in point of law amounted 
 to the first assault, the plaintiff must reply specially ; and it 
 is said that if the defendant's battery was outrageous, or 
 more than was necessary for self-defense, that matter should 
 be so replied; ^ and the plaintift" should rej)ly any fact upon 
 which he relies to show that the defendant became a tvQ^- 
 'psisser ah i?iitio.^'^ It seems that in New Hampshire, Ver- 
 
 ' Wiuterburn v. Brooks, 2 Car. & K. 16. 
 
 ^ Great Falls Co. v. Worster, 15 N. Hamp. 412 ; Dye v. Leatherdale. 3 
 Wils. 20 ; Taylor v. Cole, 3 D. & E. 292 ; 1 H. Blk. 555 ; Gundry v. Felthain, 
 1 D. & E. 338 ; 1 Cbitty's PI. 410, 567, 568. 
 
 ^ Esty V. Wilmot, 15 Gray, 168, cmd cases cited. 
 
 * In assault, where there is a justification of molliter manus to all the counts in 
 the declaration, the plaintifl" cannot be admitted to prove excess unless he has 
 new assijjned ; otherwise where there is a justilication pleaded to one count, and 
 the general issue to another. And the words in the plea of molliter manus " as 
 was lawful for the cause aforesaid," do not allow the plaintiff to recover on the 
 general replication on the ground of excess in the defendant (Bowen v. Parrv, 
 1 Car. & P. 394). 
 
 In an action for assault and battery, de injuria is a good replication to a plea 
 stating that J. E. and S. B. were possessed of a close, and that the plaintiff 
 was making a noise, &c. ; and the defendants, as the servants of .T. E. and S. 
 B., and by their command, requested him to depart, and he refused, where- 
 upon the defendants, as the servants of J. E. & S. B., gently laid hands, &c., 
 and because the plaintiff resisted the defendants, as servants, and by comrnand, 
 «fec., a little hurt, &c. (Piggott v. Kemp, 1 C. & M. 197; 3 Tyr. 128). 
 
 Where, in an action for an assault, the plaintiff declared that the defendant 
 beat, bruised and wounded him ; plea son assault demetme, and the plaintifl re- 
 plied de injuria sua propria ; and it was proved that the latter being on horse- 
 back, got oil" and held up his stick at the defendant, when the latter struck 
 him; it was held that the plaintiff should have replied specially; and it having 
 been left to the jury whether from the evidence the plaintiff was so far the ag- 
 gressor as to justify the assault committed on him by the defendant, and they 
 having found in the affirmative, the Court of Common Pleas refused to grant a 
 new trial (Dale v. Wood, 7 Moore, 33). 
 
 In trespass for an assault and battery, the replication de injuria to a plea that
 
 § 240. REPLICATION. 217 
 
 moiit, Massachusetts, Maryland, Indiana, and Illinois the 
 plaintiff may prove that the defendant's battery was exces- 
 sive without a special replication.^ This rule is favorable 
 to the plaintiff, as it enables him on the trial to contest both 
 points before the jury, and to recover, if either be found in 
 his favor, instead of being required to hazard his case upon 
 a single point, the result usually obtained by pleading 
 specially. Where, however, the plaintiff, in answering, 
 would justify his own assault, he must new assign the mat- 
 ter of justification.^ 
 
 . § 240. A replication which does not meet a material 
 ground of justification set up in the j^lea, will of course be 
 bad. To a declaration for assaulting and seizing the plaintiff, 
 <fcc., the defendant pleaded that he was lawfully possessed of a 
 dwelling-house, and that the plaintiff' was unlawfully therein 
 with force and arms making a noise and disturbance in the 
 said house without the defendant's leave; and defendant 
 thereupon requested him to de2:)art, which he refused to do ; 
 whereupon the defendant, in the defense of the possession of 
 his house, &g., molUter mamis^ &c., to remove, and did remove 
 the plaintiff therefrom. Replication, that the said dwelling 
 house was a common inn, and that the plaintiff at the times 
 when, <fec., was lawfully therein as a guest consuming liquids 
 there sold by the defendant, which the plaintiff' had paid for, 
 and at a reasonable time, wherefore the plaintiff' refused to 
 depart when requested, as he lawfully, &c., " and the defend- 
 
 the plaintiff was the defendant's apprentice, whom he moderately chastised for 
 improper conduct, does not put in issue the question of the moderation of the 
 chastisement (Penn v. Ward, 3 C. M. & R. 388; 4 Dowl. P. C. 215; 1 Gale 
 189;5Tyr. 975). 
 
 Where to an action for an assault the defendant justifies in defense of his 
 master, the plaintiff cannot show his assault on the master to have been justifia- 
 ble on the general replication de injuria sua froinda^ but must new assign 
 (Webber V. Liversuch, Peake's Add. Cas. 51). 
 
 ' Dole V. Erskine. 35 N. Hamp. 503 ; Elliot v. Kilburn, 2 Vt. 474 ; Bartlctt 
 V. Churchill, 24 lb. 218 ; Melleu v. Tiiompson, 32 lb. 407; Hannen v. Edes, 15 
 Mass. 347; Reece v. Taylor, 1 liar. 15; Gaither v. Blowers, 11 Md. 530; Fisher 
 V. Bridges, 4 Blackf. 518; Philbrick v. Foster, 4 Ind. 442; Ayres v. Kelly, 11 
 III. 17. 
 
 ° Elliot V. Killjnrn, siqrra.
 
 218 ASSAULT AND BATTERY. § 241. 
 
 ant of Lis own wrong committed the trespasses in the said 
 plea mentioned, in manner and form as in the declaration, 
 alleged." It was held that the replication w^as bad, because 
 it did not answer the allegation of the plaintiff's misconduct. 
 Lord Denmau, C. J., further held that the replication was 
 double, and Earle, J., that it was argumentative.^ * 
 
 § 241. When tlie declaration contains but one count, and 
 a justification is pleaded, to which the plaintiff replies de 
 injuria^ the j)laintiff cannot prove any other assault than the 
 one specified in the plea. In such case, the plaintiff, instead 
 of traversing the plea, should new assign.^ f So, on the other 
 hand, if there be two counts charging different assaults and 
 batteries, and the defendant in Ms plea justifies only one of 
 them, and the plaintiff' replies de injuria^ he thereby waives 
 the benefit of one of the counts, and cannot prove an assault 
 and battery different from the one justified.^ 
 
 ' Webster v. Watts, 11 Q. B. 311. 
 
 == Carpenter v. Crane, 5 Blackf. 119. ' Berry v. Borden, 7 Blackf. 384. 
 
 * Trespass for assault and imprisonment. Plea that the plaintiff was tres- 
 passing on the defendants' close. Replication that the defendants had nothing in 
 the close, except under R. N. C. ; that before the time when, <S:c., and before the 
 defendants had anything in the close, R. N. C. demised it from year to year to 
 W. C. ; that W. C. permitted the plaintiff to. plant a crop of teazles on condition 
 that W. C. should have one-half of the crop and the plaintiff the other, and the 
 plaintiff entered to cut liis teazles, when the defendant assaulted him. It was 
 held that the replication was a sufBcient answer to the plea, though it did not 
 allege that W. C.'s interest in the land was continuing when the plaintiff entered 
 to cut the teazles (Kingsbury v. Collins, 4 Bing. 202; 12 Moore, 424). Where 
 the declaration alleged that the defendant assaulted the plaintiff " while sitting 
 in his gig, " and the replication alleged that the defendant was in his. gig, and 
 that the plaintiff gently laid hands on him and put him out, whereupon the 
 defendant assaulted the plaintiff, it was held that this was not a departure ; for 
 both allegations, though apparently contradictory, might be true, as they did not 
 necessarily refer to exactly the same point of time (Macfarland v. Dean, 1 
 Cheves, 64). 
 
 t In assault and battery and imprisonment, the defendant justified the whole 
 as master of a ship in which the plaintiff was a sailor and refractory; and the 
 plaintiff replied de injuria. It appearing that the defendant improperly knocked 
 the plaintiff down in addition to putting him in irons, it was held that the plaint- 
 iff could not recover, and that if he meant to admit that all was proper except 
 the knocking down, and to proceed for that only, he should have new assigned 
 (Gale v. Dalrjmple, 1 C. & P. 381; R. & M. 118). In an action for assault and 
 battery, the defendant pleaded sou assault demesne. The plaintiff replied, 1st, de 
 injuria ; 2d, excess. Upon a motion by the defendant that the second replication 
 be set aside, the court gave the plaintiff leave to select which replication he 
 would retain. The plaintiff declining to make the selection, the motion was 
 granted. Held that there was no error (Reese v. Bolton, 6 Blackf. 185.)
 
 §§ 242, 243. RIGHT TO BEGIN. 219 
 
 § 242. If it be alleged that tlie assault and battery was 
 committed on a specified day, to which the defendant pleads 
 a justification, the plaintiff cannot new assign an assault 
 committed on another day. A declaration stated that the 
 defendant on the 1st of January assaulted the plaintiff, and 
 then seized him and dragged him about, and struck him 
 many blows, by means whereof the plaintiff was greatly 
 hurt. The first plea justified in defense of the possession of 
 a close and a gate, which the plaintiff endeavored forcibly 
 and with a strong hand to break and enter. The second 
 plea justified in defense of the possession of a cow then being 
 in a certain close, and stated that the plaintiff, against the 
 will of the defendant, endeavored to drive the cow away 
 from the close, and to, dispossess the defendant of her, and 
 would forcibly have driven away and dispossessed the de- 
 fendant of the cow, wherefore the defendant resisted the 
 attempt. Replication de injuria^ and new assignment that 
 the plaintiff' brought his action not only for the trespasses 
 mentioned in the pleas, but for that the defendant, on other 
 and different occasions, and with more force than necessary, 
 assaulted and beat the plaintiff. It was held on special de- 
 murrer to the replication and new assignment on the ground 
 of duplicity, that the plaintiff was confined to trespasses on 
 one occasion, and could not enlarge the declaration by the 
 new assignment.^ '^ 
 
 28. Might to hegin. 
 
 §243. Where in an action for assault and battery the 
 plea is son assault demesne^ and the replication de injuria, 
 the defendant has the right to begin. But, notwithstanding 
 the defendant be permitted to commence, the plaintiff' may still 
 prove the assault and battery charged in the declaration.^ f 
 
 ' Walsby v. Oakley, 1 Selw. N. P. 38 ; ante, § 226. 
 
 " Young V. Highland, 9 Gratt. 16; ante, § 92. 
 
 * Held also, that it was not necessary that the pleas should allege a request to 
 desist; and that the second plea was good, though it did not show who was the 
 owner of the close. 
 
 t In England, the sixteen judges resolved that the plaintiff should begin at
 
 220 ASSAULT AND BATTERY. §§ 244-46. 
 
 20. Burden of proof. 
 
 § 2-44, AVhen the defeudant ohtains the right to open and 
 close, he thereby takes upon himself the burden of proof to 
 justify all he did. Under the plea of son assault demesne, 
 with the general replication de mguria., &c., the burden of 
 proof is on the defendant, who cannot give evidence in miti- 
 gation of damages, nor contradict the averments of aggra- 
 vated injuries laid in the declaration, but is bound to show 
 that the plaintiff actually committed the first assault, and 
 that Avhat was done on his own part was in the necessary 
 defense of his person.^ 
 
 § 245. Where the ground of recovery is excess of force 
 on the part of the defendant, the burden of proof is on the 
 plaintiff. In an action for assault and battery, the defendant 
 claimed to act in aid of the U. S. marshal, under a warrant 
 for the arrest of the plaintiff, who was alleged to be a fugi- 
 tive slave. It appeared that the plaintiff was confined by 
 irons after several acts of resistance and attempts to escape ; 
 that his clothes were somewhat torn and his person injured ; 
 that the injuries complained of were committed on a recap- 
 tion after one escape, and in efforts to overcome resistance, 
 and to prevent another escape, which the plaintiff was striv- 
 ing to effect. It was held that the burden of j^roof was on 
 the plaintiff to show that the force was excessive, taking into 
 view all the circumstances.^ 
 
 30. The proof must correspond ivitli the pleadings. 
 
 § 246. Evidence on the part of the plaintiff which sub- 
 stantially sustains the allegations in the declaration, will be 
 sufficient. An averment that A. struck B. will be main- 
 tained \)j proof that A. was present aiding others in striking 
 
 the trial in all actions for personal injuries, although the general issue were not 
 pleaded and the affirmative was on the defendant (Carter v. Jones, 6 C. &P. 64; 
 1 M. & Rob. 281). 
 
 ' Frederick v. Gilbert, 8 Penn. St. R. 454. 
 
 ^ Loring V. Aborn, 4 Cush. 608. See Hannen v. Edes, 15 Mass. 347.
 
 § 248. PROOF MUST CORRESPOND WITH PLEADINGS. 221 
 
 him.^ In an action by a husband and wife for the injury of 
 the latter, in which it was charged that the defendants as- 
 saulted and beat, wounded and terrified the wife, and for- 
 cibly and unlawfully turned her out of her house, and fastened 
 her out, and prevented her return thereto, it was held that 
 proof that the defendants, knowing that the husband was 
 absent, and that the wife was alone at home, and while she 
 was out in the garden, entered the house, fastened the doors 
 from within, and prevented her gaining an entrance by the 
 window, was sufficient to entitle the plaintiffs to recover 
 without proof of an actual assault.^ ^ 
 
 S 247. Althouo-h one of the counts of the declaration 
 which omits the battery is justified, yet, if the assault and 
 battery alleged in another count be j^roved as laid, the 
 plaintiff will establish a right to recover. Where, therefore, 
 the first count of a declaration stated that the defendant 
 assaulted and imprisoned the plaintiff, and during such im- 
 prisonment struck, pulled and pushed him about, and the 
 defendant pleaded that he arrested the plaintiff under pro- 
 cess, and that the latter, whilst in custody, having conducted 
 himself in a violent manner, the defendant, necessarily, and 
 to prevent his escape, struck, <fec., it was held that, although 
 the second count of the declaration (which omitted the bat- 
 tery) was justified by proof of the writ, warrant, and arrest 
 under them, the plaintiff, notwithstanding one assault and 
 battery only was proved, was still entitled to judgment upon 
 proving the trespasses as laid in the first couut;^ 
 
 § 248. If the declaration contain but one count, the 
 plaintiff', after proving one assault, cannot w^aive that, and 
 proceed to prove other j^rior or subsequent distinct assaults.^ 
 
 ' Goetz V. Ambs, 27 Mo. 28. ' Jacobs v. Hoover, 9 Minn. 204. 
 
 '' Phillips V. Ilowgate, 5 B. & A. 220. 
 
 ^ Stante v. Pricket, 1 Camp. 473 ; Peyton v. Rogers, 4 Mo. 254 ; English v. 
 Purser, 6 East, S95 ; Taylor v. Smith, 7 Taunt. 156 ; Bull. N. P. 86. 
 
 * Evidence that a chronic difficulty was aggravated by the assault and bat- 
 tery, is admissible under a declaration charging that sickness and pain were 
 among the suflerings caused thereby (Johnson v. McKee, 27 Mich. 471j.
 
 222 ASSAULT AND BATTERY. §248. 
 
 So, likewise, where tbe declaration contains several counts, 
 embracing several assaults, and the defendant by his plea 
 narrows them all to one assault, and justifies that, and the 
 phiintiff takes issue, he is confined to the assault set forth in 
 the plea.^ " When, however, the assault consists of a series 
 of acts of violence following one another so as to constitute 
 one continued wrongful act, the various acts of violence may- 
 be proved as constituting one continuing trespass.^ In Brown 
 V. Wheeler,^ which was an action for assault and battery 
 against two persons, it was claimed that after an assault had 
 been committed by one of the defendants, the other defend- 
 ant came to the house of the plaintifi^ two hours afterward 
 and made another assault on her. The defendants insisted 
 that as there was but one count in the declaration, and an 
 assault by one of the defendants had been pros^ed, no other 
 evidence could be given of a second assault by the other de- 
 fendant. The general principle was not denied. But the 
 plaintifi:' claimed, and ofl:ered to 2:)rove, that all the assaults 
 complained of took place in one day, between the hours of 
 six o'clock and ten o'clock in the morning, and that all that 
 was done by the defendants was in pursuance of a common 
 object and design. The judge, therefore, admitted the testi- 
 mony, directing the jury that the plaintifl:' could, under the 
 allegations in this declaration, prove but one assault, and 
 that only which she had first elected to prove, but that if 
 they found that these transactions were all parts of a plan 
 
 • Gale V. Dalrymple, Ry. & M. 118. 
 
 2 Monkton v. Aslily, 6 Mod. 38; 2 Salk. 638; Burgess v. Freelove, 2 B. & 
 P. 425. 
 
 = 18 Conn. 199. 
 
 * The rale is the same in actions for false imprisonment. Where a declara- 
 tion for false imprisonment against A. and B. contained two counts, to both of 
 which the defendants pleaded not guilty, and justified the first under mesne 
 process, A., as the plaintiff in that action, and B. as the bailitf; and the 
 plaintiff by a new assignment, admitting the arrest to be hnvful. replied that B., 
 with the consent of A., voluntarily released him. and that they afterward im- 
 prisoned him for the time mentioned in the first count. It was held, that as the 
 plaiutitf had failed in proving the new assignment, by not showing the consent 
 of A., it was not competent for him to prove the same trespass against B. under 
 the other count (Atkinson v. Matteson, 2 T. R. 172).
 
 § 250. PROOF MUST CORRESPOND WITH PLEADINGS. 223 
 
 concerted by the defendants to get the plaintiff out of the 
 house, and they conducted in the manner claimed by the 
 plaintiff", then the testimony was proper.* 
 
 § 249. The plea of son assault demesne^ together with 
 the plea of not guilty, puts the plaintiff upon proof of every 
 material allegation in the declaration.^ Where however, 
 to a declaration containing one count, the ^defendant pleads 
 (1.) not guilty, (2.) son assault demesne^ the plaintiff' new 
 assigns, and the defendant pleads not guilty to the new 
 assignment, the plaintiff is not required to prove two tres- 
 passes ; but only a trespass differing from that justified, and 
 agreeing with that described in the new assignment.^ 
 
 § 250. When a series of personal injuries are charged, 
 and there is an attempted justification of all of them; in 
 order to entitle the defendant to a verdict, it is incumbent 
 upon him to prove the material allegations of his plea as to 
 all. Therefore, where the declaration alleged an assault, put- 
 ting the plaintiff out of a shop, and imprisoning him in 
 custody of a police ofiicer, and the plea was molliter manus 
 imposuit, to remove the plaintiff from the defendant's shop, 
 and a justification of the imprisonment, because the plaintiff 
 had assaulted the defendant, and the assault on the defend- 
 ant was not proved ; it was held that although without it, 
 the first part of the plea might be sustained, yet that being 
 a material allegation to maintain the plea as to the imprison- 
 
 * Cogdell V. Yett, 1 Cold. Tenn. 230. ^ West v. Rousseau, 7 Blackf. 450. 
 
 * In this case, the Supreme Court said: " Unless we are to suppose that by 
 one assault is meant the first blow ^iven, and nothing more, we do not see what 
 other course could have been taken tiian was taken upon the trial. If the assault 
 which first took place in the morning was part of a series of acts concerted by 
 these defendants to free the house of this woman, then eacii was accountable for 
 that, and all other acts then done in pursuance of t?iiat object. To say they were 
 distinct assaults because a short interval of time elapsed between the blows, 
 would be to give to tlie rule an operation which was never intended, and would 
 tend to encourage litigation by dividing up a cause of action. It might as well 
 have l)een objected that the suit would not lie against both defendants, because 
 both were not chero at the same moment, as to say that all the acts which took 
 place in this short interval did not constitute one assault. Whether the injuries 
 constituted one transaction was a question which, under the claim of the parties, 
 was a proper subject for tiie consideration of the jury."
 
 224 ASSAULT AND BATTERY. §§ 251-53. 
 
 meut, it was necessary to prove it, to entitle tlie defendant 
 to a verdict.^ 
 
 § 251. "Where tlie defendant pleads a prior assault by 
 the plaintiff", he will not be allowed to prove such prior assault 
 by the record of conviction of the plaintiff criminally.^ " If 
 put in, it would prove nothing as to the excess of force." ^ 
 But where there was no evidence against one of several 
 defendants, and it was elicited on the cross-examination of 
 one of their witnesses, that all of them were indicted and 
 convicted for the same assault and battery, it was held 
 sufficient to authorize a verdict against all.* Althougb 
 matters in defense of the action not set up in the plea cannot 
 be given in evidence,^ yet, notwithstanding the defendant 
 has not pleaded a justification, he may extract evidence in 
 mitigation, on the cross-examination of the plaintiff's wit- 
 nesses.^ * 
 
 31. Pi'oof of time. 
 
 § 252. Where one assault only is charged, the plaintiff" 
 is not bound to the precise time stated in the declaration, 
 but may prove an assault on another day ; ^ and under the 
 general issue, proof of an assault and battery, on any day 
 before action brought, is sufficient.® 
 
 32. Evidence as to possession. 
 
 § 253. Proof of the lawful possession of the place where 
 the alleged assault was committed, is often important. If 
 
 ' Keece v. Taylor, 4 Nev. & M. 470 ; see Timothy v. Simpson, 1 C, M. & R. 
 757 ; 6 Car. & P. 499. 
 
 ^ Robinson v, Wilson, 22 Vt. 35. ^ Ibid, per Bennett, J. 
 
 ^ Wolff V. Cohen, 8 Rich. S. C. 144. = Pier v. Finch, 29 Barb. 170. 
 
 « Moore v. Adam, 2 Chit. 198. 
 
 ' Cheasley v. Barnes, 10 East, 80 ; Polkinhorn v. Wright, 8 Q. B. 197. 
 
 * Sellers v. Zimmerman, 18 Md. 255; Palmer v. Skillinger, 5 Barring. 234. 
 See ante, § 73. 
 
 * In an action against two, for breaking the plaintiff's close and beating his 
 slaves, they cannot, under the plea of not guilty, prove in mitigation of damages, 
 a license from the plaintiff to one of them to visit his negro quarters, and whip 
 any of his slaves acting improperly; the battery being committed by the other 
 defendant, and it not being proved that the slaves beaten had acted improperly 
 (Brown v. May, 1 Munf. 288).
 
 § 254. EVIDENCE AS TO POSSESSION. 225 
 
 the plaintiff was in the rightful and peaceful occupation of 
 it, that would give character to the transaction ; and the 
 same may be said with regard to the defendant.^ In Collier 
 V. Moulton,^ the question arising out of the bill of exceptions 
 in the court below was, whether the testimony offered by the 
 defendant to show he had a right to enter and occupy the 
 room in the house of the plaintiff, where the assault and bat- 
 tery was committed, was improperly excluded. The de- 
 fendant pleaded the general issue, and gave notice of son as- 
 sault demesne. On the trial the plaintiff' proved, that he 
 ordered the defendant out of his house, and, on his refusing 
 to go, gently laid his hands upon him to remove him, and 
 that the defendant resisted and struck him. The defendant 
 then offered to prove that at the time of the occurrence the 
 plaintiff was not in possession of the room ; that it was a 
 ball-room that had been hired by several persons for a ball ; 
 and that the defendant, at their invitation, went there to at- 
 tend the ball, and continued there until the plaintiff at- 
 tempted to turn him out. This offer of the defendant being 
 overruled, the judgment was set aside on that account.* 
 
 § 254. The question sometimes arises as to what consti- 
 tutes proof of possession. Assault by a master on his serv- 
 ant. Justification of molliter mantis to remove him from 
 a house of which the master was possessed. Held that evi- 
 dence that another servant of the defendant had the key to 
 
 ' Brown v. Wheeler, 18 Conn. 199. ' 7 Johns. 199. 
 
 * In the above mentioned case the Supreme Court said : " This evidence 
 ought to have been admitted. No possible objection could lie to its being re- 
 ceived in mitigation of damages; but it would have been proper to rebut the 
 molliter manus set up by the plaintiff. The case does not fall within the rule in 
 actions of trespass, that a license to enter cannot be given in evidence under the 
 general issue. Son assault is a plea of justification, charging the plaintifl" with 
 having committed the first assault ; and proving that fact would exonerate the 
 defendant unless the resistance was carried further than the necessity of the 
 case required. If the defendant had pleaded son assault instead of giving 
 notice of it under the general issue, and the plaintiff intended to avail himself 
 of the molliter manus, he must iiave replied specially. So?i assault being set up 
 by way of notice under the plea, the plaintiff had no opjjortunity of replying, 
 ^ and must necessarily, under such pleadings, be allowed on the trial to give evi- 
 dence of molliter manus. And if so, the defendant ought to be admitted to 
 meet and rebut this evidence by showing that the plaintiff had no right to re- 
 move him from the house. 
 Vol. I.— 15
 
 22G ASSAULT AND BATTERY. § 255. 
 
 let himself in to work, nobody living in the house, was suf- 
 ficient proof of the defendant's possession to support the 
 plea.^ But Avhere the defendant justified on the ground 
 that he was possessed of a dwelling-house, into which the 
 plaintift" unlawfully entered, and was making a noise and 
 disturbance therein, it was held that this plea was not sup- 
 ported by i^roof that the defendant held two rooms in the 
 house in question, and that the plaintifi^, who was landlord 
 of the house, and kept the key of the outer door, had un- 
 lawfully come into them, and made the disturbance com- 
 plained of.^ By agreement between A., the owner of a close, 
 and the members of a committee of a cricket club, A. agreed 
 to let to the committee, and the committee to hire the close, 
 to be used as a cricket ground by the club, and for that 
 purpose only. The plaintiif and defendant were members 
 of the committee. The plaintifl' having sued the defendant 
 for an assault in removing the j^laintift" from the close, the 
 defendant pleaded possession of the close in himself, and 
 justified the removal. The j^laintift" replied that he and the 
 defendant were jointly possessed. It was held that the facts 
 supported this replication.'^ ^"■ 
 
 § 255. Possession may be inferred from cii'cum stances. 
 In an action for assault and battery occurring in a dispute 
 as to which party was entitled to the possession of certain 
 land, the judge at the circuit excluded evidence ofi*ered to 
 show who planted, fenced and occupied the lot in question 
 for two years immediately previous to the assault, and a ver- 
 dict having been found for the plaintift^, a new trial was 
 granted on this ground. The court remarked that it be- 
 longed to that class of facts, of which there are many in the 
 law, seemingly involving, to some extent, the expression of 
 an opinion, or a conclusion from other particular facts, as to 
 
 ' Hall V. Davis, 2 Car. & P. 33. - Monks v. Dykes, 4 Mees. & W. 567. 
 
 = Holmes v. Bagge, 1 El. & B. 782; 22 L. J. N. S. Q. B. 301. 
 
 * It is no excuse that the defendant owned the house in which the assault 
 and batteiT was committed, the house being at the time in the possession of a 
 third person (Suggs v. Anderson, 12 Geo. R. 461).
 
 §§ 256, 257. EVIDENCE AvS TO POSSESSION. 227 
 
 wliicli from the necessity of the case the law tolerates a 
 direct and comprehensive inquiry.^ 
 
 § 256. A judgment determining the question of posses- 
 sion between the same parties in another matter, in re- 
 lation to the same transaction, would be conclusive. Where, 
 therefore, in an action by B. against A. for an assault and 
 battery, it appeared that the act complained of occurred 
 while A. was defending his premises against the forcible en- 
 try and detainer of B., and was a part of that transaction ; 
 it was held that a judgment in favor of A., on the complaint 
 of forcible entry and detainer against B., was admissible, un- 
 der the general issue with notice, to prove that A. was in 
 lawful possession of the land at the time of the assault, and 
 to disprove the possession claimed by B., and that upon this 
 point, the judgment was conclusive.^ 
 
 § 257. Force and fraud may be a proper subject for 
 consideration on the hearing of a habeas corpus relative to 
 the possession of a child, where the question is one of dis- 
 cretion, and where the further question is whether the father 
 is the proper person to have the care of it. But in an action 
 at law turning on the strict legal rights of the parties, the 
 manner in which the possession was obtained is not material 
 unless upon a question of damages; for it can affect no 
 rights. Where, therefore, in an action for an assault and 
 battery, it appeared that the plaintiff, the father of a legit- 
 imate child, was in the quiet custody of the child when as- 
 saulted by the defendant for the purpose of taking it away 
 from him, it was held that if the possession of the father, 
 when obtained, was lawful and exclusive, the fact that the 
 father had regained the possession by strategem, was wholly 
 immaterial.'^ 
 
 ' Ilardcnhurgh v. Crary, 50 Barb. 83; Parsons v. Brown, 15 Barb. 590: Burt 
 V. Powis, 10 How. Pr. R. 289. 
 
 ' Bell V. Raymond, 18 Conn. 91. 
 ^ Johnson v. Terry, 34 Conn. 259.
 
 228 ASSAULT AND BATTERY. | 258- 
 
 33. Proof of malice. 
 
 § 258. Ill feeling or animosity on the part of the person 
 charged, toward the one assaulted, may be proper evidence. 
 When an assault is proved to have been committed by some 
 one, and the person charged is shown to have had an oppor- 
 tunity to commit it, it can scarcely be regarded as an imma- 
 terial circumstance for the consideration of the juiy, with the 
 view of connecting him with the act, that he was maliciously 
 disposed toward the person assaulted. The existence of ill 
 feeling of itself proves nothing ; but it is a circumstance in 
 connection w^th others that the jury may rightly consider in 
 inferring the alleged fact.^ In an action for assault and bat- 
 tery, it appeared that the plaintiff was injured whilst the 
 defendant was alone with her. The circumstances proved war- 
 ranted the inference that the defendant seized and wrenched 
 her arm. But he w^as her brother, and it was neither impos- 
 sible, nor very improbable, that the injury was accidental or 
 unintentional. Such an hypothesis would sooner be indulged 
 than that a brother, without any ill-will toward her, had 
 intentionally inflicted violence on her person. But by adding 
 to the circumstances the fact that there existed ill feeling on 
 the part of the defendant toward the plaintiff, the case as- 
 sumed a different aspect. Whereas, before, the juiy might 
 have been bewildered by the absence of a motive to do an 
 intentional wrong, now it wa3 made to appear. The ill-will 
 did not tend to prove the act of seizure of the arm, but it 
 aided to determine its character and legal effect.^ * 
 
 ' Jewett V. Banning, 31 K Y. 27; Klein v. Thompson, 19 Ohio St. R. 569; 
 Aulger V. Smith, 34 111. 534. 
 
 ' Jewett V. Banning, sujjra. 
 
 * Proof of violence by a third person is admissible when it appears that such 
 person was co-operating with the defendant. Millen v. Sweitzer, 22 Mich. 
 391. In an action for assanlt and battery the plaintiffs daughter testified that 
 §he was standing a little east and back of the plaintifl''s house, some twenty-five 
 or thirty rods from where the afi'ray took place, and that she started and ran 
 through the house toward the other door. She was asked by the plaintiff's 
 counsel what made her go into the house, and if there was anything in the 
 appearance or conduct of the defendant which caused her to do so. It was held 
 that the question was irrelevant (McConaghy v. McMuUen, 27 Wis. 73).
 
 § 259. PROOF OF MALICE. 229 
 
 § 259. Words employed by the defendant at the time of 
 the assault and battery are admissible as part of the res 
 gestcB and to characterize his conduct as to malice ; ^ as that 
 he charged the 23laintiflf with having sworn falsely.^ Where 
 the defendant undertakes to show that he committed the 
 assault ^vdthout malice, the plaintiff may prove that the 
 defendant has offered to light him since the commencement 
 of the action.^ And what occurred before or after the princi- 
 pal transaction may be given in evidence to show a malignant 
 and cruel disposition toward the plaintiff."^ In Devine v. 
 Rand,^ the plaintiff' charged the defendant with beating, 
 kicking, and in other ways ' abusing her. To some of the 
 counts of the declaration the defendant pleaded the general 
 issue, and to others in justification, that the force he used 
 was but reasonable chastisement of the plaintiff' for her mis- 
 behavior, and was administered for that purpose, she being a 
 «hild between eleven and twelve years old, whom he had 
 received from her parents to bring up. Several distinct suc- 
 cessive acts upon different occasions were complained of, and 
 at the trial of the cause in the county court, the plaintiff' was 
 allowed to prove acts and words of the defendant about the 
 time of, and between the principal transactions, as follows : — 
 That between the principal acts of abuse and shortly after 
 some of them, the defendant held the child to a mirror and 
 called her attention to her sunken eyes and emaciated con- 
 dition, and reminded her that he would soon see her stretched 
 on a board ; that he besmeared her with excrement, compelled 
 her to drink urine, chained her to the stove, and left her in 
 that condition for hours alone, dressed her in men's clothes, 
 and then pinched, tortured and insulted her ; and that the 
 defendant, after putting the plaintiff naked through the ice 
 into a trough of water, conducted her to the house, and before 
 
 ' McDougall V. Maguire, 35 Cal. 274; Blake v. Damon, 103 Mass. 199; ante 
 3, 145. 
 
 "" Pulver V. Harris, 61 Barb. 78. =" Mills v. Carpenter, 10 Ired. 298. 
 
 * Pierce v. Hoffman, 24 Vt. 527 ; Long v. Chubb, 5 C. & P. 55. 
 ' 38 Vt. 621.
 
 230 ASSAULT AND BATTERY. § 260. 
 
 allowing lier to dress placed her over a stove, and as she 
 trembled, whipped her and compelled her to stand there till 
 she fell. It was held that the foregoing was admissible, as 
 calculated to show that the defendant's intention and disposi- 
 tion in the principal acts Avere wilfully malignant, and that 
 the principal acts were prompted by a settled and persistent 
 purpose of oppression and wanton cruelty. The court re- 
 marked that although what occurred after the plaintiff re- 
 turned to the house was not alleged in the declaration, yet 
 as it took place in connection wdth the immersion, and very 
 probably in consequence of it, and before the defendant left 
 her or allowed her to dress, it must be regarded as one 
 transaction, and might be proved. * 
 
 34. Admissions and declarations. 
 
 § 260. Declarations of the plaintiff at the time of the 
 assault, or shortly after, as to the extent of his injuries, — as 
 what he said in relation thereto to the attending surgeon, — 
 are admissible as a part of the res gestoe / ^ f and the plaintiff 
 
 ' Green v. Bedell, 48 N. Hamp. 546 ; Fort v. Brown, 46 Barb. 366 ; Caldwell 
 V. Murpliy, 11 N. Y. 416; Brown v. N. Y. Centr. R. R. Co. 32 lb. 597; 1 Greenl. 
 Ev. § 102. 
 
 * In an action for assault and battery, it appeared that the defendant, with 
 others, used threatening and violent language toward the plaintiff; that the 
 plaintiff soon after left the State, and that while away his house and outhouses 
 were' destroyed. It was held that the court erred in admitting evidence as to the 
 plaintiff's absence from the State and the subsequent destruction of the property, 
 unless shown to have been part of the original trespass and that the defendant 
 was present aiding and abetting therein (Williams v. Gaines, 3 Cold. Tenn. R. 
 240). On a trial for an assault and battery, it is not proper for the plaintiff to 
 ask a witness if, in his opinion, the fight would have taken place if the defendant 
 had informed the plaintiff that he had a knife (Reese v. Bolton, 6 Blackf. 185). 
 Upon the question of excessive punishment of a pupil by the master, proof of 
 the general mild and moderate management of the master is not admissible. 
 But when the proof tends to show that the master acted maliciously or wantonly 
 from an evil heart, and the plaintiff claims to recover damages on that ground, 
 such evidence is proper. It should, however, be sti'ictly limited to that pur- 
 pose. Upon the question of malice in whipping his pupil with a rawhide, in 
 order to show that he did not resort to an unusual instrument of punishment, it 
 may be proved that a rawhide was used in other schools in the vicinity. Testi- 
 mony to show that the plaintiff did not claim an excess of punishment on the 
 first trial is proper, as tending to prove that such a claim on the then pending 
 trial is not well founded (Lander v. Seaver, 32 Vt. 114). 
 
 t The ground of the admissibility of the evidence was stated by Welles, J., 
 in Fort v. Brown, supra, thus: "The witness did not know or profess to know
 
 § 2G1. ADMISSIONS AND DECLARATIONS. 231 
 
 may prove that he complained of the injury soon after it was 
 received, and continuously afterward.^ In an action for as- 
 sault and battery committed on a boy of fourteen, by kick- 
 ing him, it was proved that the immediate effect of the violence 
 was to produce a pain in the plaintiff's side; that soon after 
 he was kicked by the defendant he came from the barn 
 where he received the injury to the defendant's house, and 
 as he went walked lame, and held his side, and upon being 
 asked what was the matter, answered that the pain was in his 
 side ; that soon after, the plaintiff left the defendant's house 
 to go to his father's, and as he walked away, held his side 
 and talked as if he were crying ; that on his way home he 
 passed the house of a witness, and was crying and holding 
 his right side ; that the next day he went to one C's to 
 work, and remained there two months, and while there slept 
 with one G. ; that during the entire two months the plaintiff 
 in the night time complained of his right side, and said that 
 he lay on his left side because it hurt him to lie on his right 
 side. It was held that this testimony was properly admit- 
 ted.^ But in an action for injuries inflicted on the |)laint- 
 iff's wife, which caused her death, it was held that a state- 
 ment made to the plaintiff by his wife the next day after 
 the assault, was not admissible as part of the res gestce, 
 though it might have been if made immediately after the 
 occurrence.^ 
 
 § 261. The declaration of a party prior to the commis- 
 sion of a wrong, that he intends to perpetrate it, is evidence 
 
 in what manner or by what means the injury happened to the plaintiff, and 
 therefore had to rely principally upon her statements on that subject. It was 
 for the jury to say whether those statements were true, and if they should believe 
 them the testimony of the physician as to the efl'ect would be applicable. If they 
 did not believe them, they would dismiss his evidence from their considera- 
 tion. It was not to prove the facts in relation to the assault and battery that 
 the doctor was examined ; and none of the questions put to him, nor his answers 
 thereto, appear to have had any such object or tendency." 
 
 ' Yost v. Ditch, 5 Blackf. 184; Johnson v. McKee, 27 Mich. 471. 
 
 ' Weekly v. Persons, 28 N. Y. 344; and see Aveson v. Kinnaird, 6 East, 188; 
 Gray v. Young, Harper, 38; Caldwell v. Murphy, 1 Kern. 416, 
 
 ' Spartz V. Lyons, 55 Barb. 476, Brady, J., dissenting ; see Goodwin v. Harri- 
 son, 1 Root, 80.
 
 232 , ASSAULT AND BATTEKY. § 261. 
 
 against Lim, because it is presumed that the feelings and 
 purposes which such declaration indicates do in fact exist, 
 and impel such utterance, and because a state of feeling 
 once proved to exist is presumed to continue until some 
 change is shown. The length of time that may have elapsed 
 between the declaration of the purpose and its consumma- 
 tion, as well as all the circumstances attending such declara- 
 tion, are to be taken into consideration in determining its 
 weight and importance ; and the intervening time may be so 
 great, or the other circumstances of such a character, as to 
 render the declaration of little value. But, upon princij)le, 
 the declaration of an intention to commit the act in question 
 can never be rejected as irrelevant when the issue is whether 
 the party making such declaration did the act.^ * 
 
 ' Bartram v. Stone, 31 Conn. 159. 
 
 * In an action for assault and battery, the following instruction was held un- 
 objectionable: that "if the defendant threatened to whip the plaintiff out of the 
 county, and the plaintiff was afterward whipped, it would, in the absence of 
 exculpatory evidence, be a strong presumption against the defendant; but if he 
 had only expressed the opinion that the plaintiff ought to be w'hipped out of the 
 county, it would not be so strong a circumstance " (Grisby v. Moffat, 2 Humph. 
 487). In an action of assault and battery, which was tried upon the general 
 issue, the plaintiff offered, and the court received, evidence to prove that previous 
 to the trespass complained of the defendant had threatened the assault. These 
 threats were not made in the plaiutifl"s presence, and there was no proof that he 
 had been informed of them when the assault was made. The defendant objected 
 to the evidence, because the threats being made before the trespass, and not in 
 the presence of the plaintiff, were no part of the transaction for which the suit 
 was brought. The ruling of the judge, before whom the cause was tried, was, 
 however, affirmed by the Supreme Court, which said: -'Evidence of threats is 
 not objectionable because the threats were uttered before the commission of the 
 threatened act. No action can be maintained for their utterance alone. Nor 
 should damages be increased either because they were uttered, or because the 
 party then entertained the malicious motive which inspired them. Evidence of 
 their utterance is admissible only because it conduces to prove a fact — that the 
 malicions motive tlien existed ; and from that fact the inference may be deduced 
 that the same malicious motive continued to exist until the threatened deed was 
 perpetrated. Tliis evidence then was properly received, because it conduced to 
 prove a fact from which a legitimate inference was fairly deducible, that the de- 
 fendant committed the assault, and that it was jjremeditated and malicious. It 
 is contended that the evidence was inadmissible because the threats were no part 
 of the transaction on account of which tiie suit was instituted. But the malice 
 which their utterance indicated was part of the transaction ; it characterized the 
 attack, and impelled the blows; and the existence of that malice was one of the 
 facts which the evidence was received to prove. And if the defendant, in miti- 
 gation, may show that the act proceeded from a sudden heat, induced by tlie 
 plaintiff's provocations, why may not the plaintiff, in aggravation, show that it 
 proceeded from long cherished and premeditated malice? The fact that the 
 threats proved never came to the plaintiff's knowledge before the assault, is of
 
 §§ 262, 263. ADMISSIONS and declarations. 233 
 
 § 262. The declarations or admissions of the party which 
 accompany the act, as well as his subsequent admissions or 
 declarations, may be proved.^ And the record of an indict- 
 ment for the same offense to which the defendant pleaded 
 guilty, may be given in evidence.^ The silence of the de- 
 fendant when charged with the commission of the assault at 
 the time of its alleged occurrence, may be tantamount to an 
 admission of it by him. In an action for an assault upon the 
 person of a Mrs. Stratton, the follow^ing evidence offered by 
 the plaintiff, was held admissiljle : — That just at the com- 
 mencement of the evening the defendant entered, uninvited, 
 into the bed-room of Mrs. Stratton where she was tending 
 her child ; that under pretence that he wanted a newspaper, 
 he induced her daughter to leave the room and go below for 
 a light ; that soon after Mrs. Stratton exclaimed " let go of 
 me " — " keep your hands off' of me," — " keep your distance," 
 to which the defendant made no reply, but as the daughter 
 was just then coming in with a light, he left the house.'^ * 
 
 § 263. If a j)arty in a given interview and conversation, 
 
 no importance. The issue upon trial involved the consideration of the defend- 
 ant's state of mind at the time of the assault. But his state of mind anterior to 
 that time might be proved as a fact, because from that fact the jury would be 
 authorized to infer what it was when the assault was made. The plaintiff's 
 ignorance of that fact, and of the threats by which the existence of that fact was 
 indicated, was therefore unimportant, because it could have no effect either upon 
 the reality of the existence of the fact itself, or upon the legitimacy and force of 
 the inference which such fact authorized " (Bartram v. Stone, mpra ; and see St. 
 Peter's Church v. Beach, 26 Conn. 355; Dibble v. Morris, B). 416). 
 
 ' Sherley v. Billings, 8 Bush, Ky. 147. 
 
 = Corwin v. Walton, 18 Mo. 71; Green v. Bedell, 48 N. Hamp. 546. 
 
 ^ Stratton v. Nichols, 30 Conn. 327. 
 
 *In an action for an assault and battery, the hand of the plaintiff was shown to 
 the jury without objection, in connection with testimony tending to prove that 
 it had been injured in the affray. Testimony was afterward introduced by the 
 defendant to prove that the wound in the hand had existed years before. It was 
 held that instruction to the jury, that if tiiey believed that the plaintiff attempted 
 to deceive them in this particular, they plight take it into consideration in con- 
 nection with the other conflicting testimony in the case, did not declare any legal 
 rule controlling the judgment of the jury, and was, therefore, not objectionable. 
 The court remarked that the jury were left free to allow it to have such an in- 
 fluence as they should think reasonable and just; that it was rather a commen- 
 tary on the testimony called forth by the position in which the plaintiff had 
 chosen to place himself, than a statement of any rule or presumption of law; 
 and that it was much less severe than the rule which the law applied to the 
 testimony of a witness thus situated (Millay v. Millay, 18 Maiue, 387).
 
 234 ASSAULT AND BATTERY. § 263. 
 
 is repeatedly charged with the commission of assault and 
 battery, and he denies it unequivocally once, he is not called 
 upon to repeat the denial in order to avoid the inference of 
 an admission of its truth against him. But if the charge be 
 made at distinct times, under different circumstances, and in 
 the presence of different persons, though he may have de- 
 nied it at one time, his silence under accusation at another 
 time, and under other circumstances, is a proper circumstance 
 to be weighed by the jury. At least, the court is not called 
 upon to instruct the jury, as matter of law, that they are to 
 infer nothing against him from his silence. In an action for 
 an assault and battery, it appeared that the plaintiff's arm 
 was considerably injured, which she claimed was done by the 
 defendant violently seizing and wrenching it. There was no 
 direct evidence that the injury was occasioned by the de- 
 fendant. A witness for the plaintiff testified among other 
 things, that shortly after the plaintiff's arm was injured he 
 heard her charge the defendant with having injured her arm, 
 which accusation was in the presence of the defendant and 
 several others ; but the witness did not hear the defendant 
 make any reply. Another of the plaintiffs witnesses, who 
 was present on the occasion referred to, did not hear the de- 
 fendant deny the charge. The defendant introduced evi- 
 dence tending to show that about an hour previous, on the 
 same day, and when the plaintiff's witnesses were not present, 
 the plaintiff made substantially the same charge, which the 
 defendant denied. The judge, among other things, instructed 
 the jur}^, that if the plaintiff accused the defendant of com- 
 mitting the assault, and he at the same time denied it, it 
 furnished no evidence against him ; but if he remained silent 
 when so charged, they might regard it as an admission that 
 he was guilty, or give it such weight as they thought it en- 
 titled to ; that there was some doubt from the evidence per- 
 haps, whether the accusation after it had been once made was 
 repeated, and if it was repeated, whether the defendant then 
 remained silent ; that the jury would not probably conclude 
 that the defendant after he had once emphatically denied the
 
 §§ 264, 265. EVIDENCE OF PROVOCATION. 235 
 
 accusation on tliat occasion was called upon to deny it again 
 if the accusation was repeated, but that they would give such 
 weight to the defendant's silence when the charge was re- 
 peated, if it was repeated, as they thought it entitled to, un- 
 der the rules which had been stated as to the effect of re- 
 maining silent. It- was held that there was no error in the 
 instruction ; and a verdict having been found for the plaintiff, 
 an order of the special term granting a new trial, was re- 
 versed.^ 
 
 § 264. Declarations of the plaintiff respecting the defend- 
 ant, are not admissible in mitigation of damages, unless they 
 are proved to have been communicated to the defendant.^ 
 And where a considerable interval — e. g., two months, — has 
 elapsed between the making of the declarations and the as- 
 sault, they will not be admissible unless proved to have been 
 communicated to the defendant immediately before the as- 
 sault.^ Nor can the defendant after proving the plaintiff's 
 declarations made immediately after the affair as to its origin, 
 prove his own statements in reply .^ 
 
 4 * 
 
 35. Mvidence of provocation. 
 
 § 265. A blow will be justified by an assault unless the 
 battery is excessive.^ Where the defendant proved that the 
 
 ' Jewett V. Banning, 33 Barb. 13; s. c. 21 N. Y. 37. 
 
 "" Chambers v. Porter, 5 Cold. Tenn. 373. 
 
 = Gaither v. Blowers, 11 Md. 536. ' Collins v. Todd, 17 Mo. 537. 
 
 * Hazel V. Clark, 3 Harring. 33. 
 
 * Acts and declarations of the plaintiff, several months previous to the assault, 
 are not evidence of an intent to commit -wanton violence at the time of the as- 
 sault (Castner v. Sliker, 4 Vroom, 95). 
 
 In an action for an indecent assault, the plaintiff cannot prove her own acts 
 at a period of time subsequent to, and somewhat remote from the time of the 
 alleged injury, as evidence of mental suffering (Ford v. Jones, 63 Barb. 484). 
 
 Where it is proved that the defendant prevented the interference of a third 
 person, evidence of the simultaneous declarations of such third person, tending 
 to show that he was about to participate in the fio-ht, is admissible in mitigation 
 of damages (Watkins v. Gaston. 17 Ala. 664). The defendant was allowed to 
 prove the contents of a letter which he had written to the plaintiff notifying him 
 that he should carry weapons for his defense, the letter itself having been de- 
 stroyed. It was held that, if the evidence was admitted to show that the de- 
 fendant had forewarned the plaintiff that he should arm himself, it was proper 
 (McMasters v. Cohen, 5 Ind. 174).
 
 236 ASSAULT AND BATTERY. § 266. 
 
 plaintiff got off' of bis horse, lield up a stick, and offered to 
 strike the defendant,, and the latter thereupon gave him a 
 beating, it was held that a moderate battery was, by reason 
 of the 23ro vocation, justilial)le. and that if the plaintiff relied 
 upon the fact of the defendant having beaten him more 
 violently than he ought to have done, the excessive beating 
 should have been replied and specially set forth.^ But in 
 order to sustain a justification on the ground of misconduct 
 of the plaintiff which does not amount to an assault, the 
 defendant must prove that he was free from fault,^ 
 
 § 2C)(). Although words sj^oken will not justify a blow, 
 yet they may go in mitigation of damages when they imme- 
 diately preceded the battery and naturally provoked it.^ 
 When a battery has been committed under highly provoking 
 language, the law will not imply such malice as requires 
 punishment with vindictive damages, unless the wrong be 
 carried to an excess beyond what a reasonable man would 
 do under such circumstances. But the question of damages, 
 in such case is with the jury.^ * A. having written a novel, 
 
 ' Dale V. Wood, 7 Moore, 33 ; Penn v. Ward, 2 C. M. & R. 388. 
 
 = Phillips V. Kelly, 29 Ala. 628. 
 
 = Ireland v. Elliott, 5 Clarke Iowa R. 478 ; Cushraan v. Ryan, 1 Story R. 91 ; 
 Stephen v. Myers, 4 C. & P. 349 ; Shorter v. The People, 2 Comst. 193 ; Keyes 
 V. Devlin, 3 E. D. Smith, 518; Thompson v. Mumma, 21 Iowa, 65; Murray v. 
 Boyne, 42 Mo. 472. 
 
 ^ Donnelly v. Harris, 41 111. 126 ; Bartram v. Stone, 31 Conn. 159. 
 
 * In Bartram v. Stone, svpra^ the plaintiff having proved threats made by the 
 defendant prior to the assault, the defendant offered to prove that, just before 
 the assault, the plaintiff" charged him (in substance) with a theft, and his answer 
 to the charge. It was held that this evidence was proper. The plaintiff then 
 offered to prove the truth of the charge thus made by him, but it was ruled out. 
 Finally, an offer by the defendant to prove his innocence of the charge was 
 rejected. "The offer came with an ill grace from the defendant, who had just 
 procured the rejection of evidence to prove his guilt. And it was of no import- 
 ance to the issue before the court whether the charge was true or false. The 
 defendant's evidence that the charge was made was admissible, and was ad- 
 mitted only to show the provocation which he claimed, and to rebut the plaintiff's 
 claim that he was actuated by premeditated malice rather than by sudden impulse 
 and excitement. And besides, the charge was presumed to be false, and, there- 
 fore, it needed no refutation." In Tennessee, insolence of a slave was held no 
 defense to an action brought by the owner against a white man for assault and 
 battery of his slave, even though it amounted only to moderate and reasonable 
 correction (Walker v. Brown, iTHumph. 179). But in North Carolina, insolence 
 in a free negro was held to justify an assault by a white man (State v. Jowers, 11 
 Ired. 555). '
 
 § 2GG. EVIDENCE OF PROVOCATION. 237 
 
 B. piiblisLed a libel on A. in the form of a critique on the 
 novel, for which A. beat him. B. brought an action for the 
 assault and A. a cross action for the libel. It was held that 
 in the action for the assault the libel might be given in evi- 
 dence in mitigation of damages, although it was the subject 
 of another action, but that being so, the defendant ought not 
 to derive much advantage from it in diminishing the dam- 
 ages. It was also held that the defendant need not put in 
 the novel to show that the criticism in the novel was unfair ; 
 neither could the plaintiff give the novel in evidence to show 
 that the critique was a fair one, but that the plaintiff's 
 counsel, in his reply, might assume that certain passages were 
 contained in the work, and argue that the critique was not 
 unfair.^ It is no excuse for an assault that the complainant 
 said that if he were attacked it would be at the assailant's 
 risk, especially when the assailant was not present at the 
 time the declaration was made.^ So, likewise, in an action 
 by husband and wife for an assault on the wife, words or 
 acts of the husband cannot be proved in mitigation of dam- 
 ages unless the wife was privy to them.^ * 
 
 ' Fraser v. Berkeley, 7 Car. & P. 631 ; 2 M. & Rob. 3. 
 
 ' Coleman v. State, 28 Geo. 78. ' Everts v. Everts, 3 Mich. 580. 
 
 * The principle upon which proof of the language and conduct of the plaintiff 
 is admissible in these actions, in pi:oper cases, is that inasmuch as the malice of 
 the defendant may be proved to aggravate the damages, therefore the malice of 
 the plaintiff may be shown to mitigate the same. But the malice of the defend- 
 ant can never increase the damages for the actual pecuniary injury and loss; that 
 is, for the mere personal injury, and such being the case, the malice of the plaint- 
 iff cannot mitigate those damages. But damages for injury to the feelings and 
 exemplary damages depend entirely upon the malice of the defendant, and these 
 may be mitigated by proof of the malicious language or conduct of the plaintiff, 
 although tlie same does not constitute a legal justification of the injury (Wilson 
 V. Young, 31 Wis. 574 ; approving of Prentiss v. Shaw, 56 Maine, 427 ; and dis- 
 approving Morely v. Dunbar, 24 Wis. 183). In Prentiss v. Shaw, 56 Maine, 427, 
 which was an action for personal injuries inflicted by the defendants upon the 
 plaintiff, it appeared that the plaintiff, upon being told that President Lincoln 
 had been assassinated, expressed his gratification; that the defendants, acting 
 under tlie advice of a provost marshal, and being accompanied by an excited 
 crowd, forcibly placed him in a wagon, took him three miles to a village and 
 kept him shut up for several hours in a room in a hotel there ; that during this 
 time persons in the crowd threatened him with extreme personal violence ; that 
 on tile same day he was taken before a public meeting of citizens, and that he 
 was discharged, pursuant to a vote of the meeting, upon his taking an oath to 
 support the constitution of the United States. The plaintiff claimed damages on 
 these grounds : 1st. For the actual injury to his person and for his detention ;
 
 238 ASSAULT AND BATTERY. §§ 267, 268. 
 
 § 267. Language employed bj^ the plaintiff toward tlie 
 defendant on a previous occasion cannot be given in evidence 
 in mitigation of damages ; nor statements made by third 
 parties to the defendant.^ But previous misunderstanding 
 iind threats of the plaintiff are admissible in evidence to 
 sho^v who was the a2:2:ressor.^ And it has been held that 
 imputations of the same kind as those which caused the 
 assault, previously communicated to the defendant, are ad- 
 missible.^ And where it w^as proved, that the plaintiff 
 cursed the defendant, and when he was struck was about to 
 rise from the chair in which he was sitting with a stick in 
 his hand, evidence of threats made by him against the 
 defendant within the preceding few days was allowed in 
 order to show the motive of the defendant's act.^ 
 
 § 268. Acts committed, or w^ords spoken by the plaintiff" 
 some time previous to the assault, which were a part of a 
 series of provocations, often reiterated, and continued up to 
 
 2cl. For the injury to his feelings, the indignity and the public exposure; and, 
 3d. For exemplary damages. The judge at the trial in the court below charged 
 the jury that they could only consider the evidence introduced by the defendants 
 under the second and third of the foregoing heads in mitigation of damages 
 under either or both of said heads, Ijut not under the first head. A verdict 
 having been rendered for the plaintiff for six dollars and forty-six cents, the 
 Supreme Court, on exceptions, held that the instruction was correct. In Bir- 
 chard v. Booth (4 Wis. 67), which was an action for personal injuries inflicted 
 by the defendant upon the plaintiff, it was held that the latter was entitled to 
 recover a fair compensation for all the losses and injuries which he had actually 
 sustained, without regard to the provocation he might have given, if such a pro- 
 vocation did not constitute a legal justification. In Morely v. Dunbar, 24 Wis. 
 183, which was an action for assault and battery, it was held that notwithstand- 
 ing what was said in Richard v. Booth, circumstances of provocation attending 
 the transaction, or so recent as to constitute part of the res gestce, though not 
 sufficient entirely to justify the act done, might constitute an excuse which 
 would mitigate the actual damages; and where the jirovocation was great and 
 calculated to excite strong feelings cf resentment, might reduce them to a sum 
 which was merely nominal. In Wilson v. Young, supra, Dixon, Ch. J., in a dis- 
 senting opinion, adhered to the foregoing decision, and cited the following 
 cases: — Rhodes v. Bunch, 3 McCord, 65; McKenzie v. Allen, 3 Strobh. 546; 
 Mathews V. Terry, 10 Conn. 455; Coxe v. Whitney, 9 Mo. 531-532; Collins v. 
 Todd, 17 Mo. 539-540; Corning v. Corning, 6 N. Y. 103; Willis v. Forrest, 2 
 Duer, 310; Tyson v. Booth, 100 Mass. 25»; Marker v. Miller, 9 Md. 338; Bingham 
 V. Garnhault,' Buller's N. P. 17. 
 
 " Jarvis v. Manlove, 5 Harring. 452; Guernsey v. Morse, 2 Root, 252; Collins 
 V. Todd, 17 Mo. 537; Suggs v. Anderson, 12 Geo. 461. 
 
 ^ Murphy v. Dart, 42 How. Pr. R. 31. 
 
 ' Dean v. Horton, 2 McMuUan, 147. ' Watkins v. Gaston, 17 Ala. 664.
 
 § 209. EVIDENCE OF PROVOCATION. 239 
 
 the time of the attack, are admissible in evidence in mitiga- 
 tion of damages.-^ In Dolan v. Fagan,^ the defendant offered 
 to prove a series of provocations repeated and continued 
 from day to day; and that whenever the parties met, the 
 plaintiff insulted the defendant to such an extent, as to 
 render the defendant frantic. The judge ruled that the 
 defendant might show anything that took place on the day 
 of the assault, or the day previous, but not what occurred 
 several days before. The General Term of the New York 
 Supreme Court, in granting a new trial, upon exceptions 
 taken to this ruling, held that the question should have 
 been, not how many hours had elapsed since the provocation 
 was given, but whether, in view of the circumstances of the 
 case, the party had had a reasonable time to cool his blood ; 
 and that the jury should have been permitted to hear the 
 nature and extent of the provocation, so as to determine 
 how much of the beating complained of, was, if not deserved, 
 at least caused by the plaintiff' 's provocation. 
 
 § 269. But evidence with respect to the conduct of the 
 plaintiff' at other times, and upon other occasions, — the 
 assault and battery having been committed without any 
 provocation given at the time, — cannot be given in evidence 
 by the defendant in mitigation of damages. " It will not do 
 to say that a man may beat another person, and when sued 
 for the injury show that on some former occasion, the latter 
 had committed some offense for which he justly merited 
 punishment. If the defendant were permitted to go beyond 
 the transactions that took place at the time of the assault, it 
 would be difficult to draw a line between those acts which 
 might, and those which might not be proved. Besides, if the 
 defendant were permitted to show the conduct of the plaint- 
 iff* at other times, the plaintiff' would have a right to in- 
 troduce evidence to explain that conduct; and thus the 
 attention of the jury would be distracted with a multiplicity 
 
 ' Stetlar v. Nellis, 60 Barb. 534; s. c. 42 How. Pr. R. 163. 
 ' 63 Barb. 73.
 
 240 ASSAULT AND BATTERY. § 270 
 
 of questions and issues.^ Evidence, for instance, would not 
 be admissible, that the plaintiff a long time before the 
 alleged assault and battery had been hostile to the defendant, 
 and committed an assault upon him ; - ^ or that the plaintiif 
 had prosecuted the defendant's child for malicious mischief; ^ 
 or that the plaintiff had previously circulated an infamous 
 story of the defendant's sister ; * or that a week before the 
 assault, the plaintiff had slandered the defendant's daughters, 
 and the same came to the defendant's knowledge, three 
 hours previous to the assault.^ 
 
 36. Proof of mitigating circumstances. 
 
 § 270. Circumstances cannot be given in evidence in miti- 
 gation of damages where they amount to a complete justifi- 
 cation, and could have been pleaded as such.® But it is 
 otherwise when the circumstances merely palliate the charac- 
 
 ' Mathews v. Terry, 10 Conn. 455. 
 
 = Dole V. Erskine, 37 N. Hamp. 316. ' Scblosser v. Fox, 14 Ind. 365. 
 
 * Avery v. Ray, 1 Mass. 13; Lee v. Wolsey, 19 Johns. 319; Swift's Dig. 641. 
 " Thrall v. Knapp, 17 Iowa, 468. « Watson v. Christie, 2 B. & P. 224. 
 
 * Dole V. Erskine, supra, was an action for assault and battery against 
 Erskine & Chase, in which the defendants offered to prove that two or three 
 years previous to the alleged assault, the plaintiff told the witness that some time 
 prior to their conversation, he had had a dispute with Erskine, in the course of 
 which he, the plaintiff, had spit in Erskine's face, and called him a damned 
 coward ; and that there had been an enmity between the plaintiff and Erskine 
 for some years previous to, and down to the time of the alleged assault ; this 
 testimony being offered to rebut the presumption, that Erskine commenced or 
 committed the first assault, and also in mitigation of damages, it was held 
 inadmissible. The court said : " The testimony offered, was of a conversation 
 between the plaintiff and witness, held from one to three years before the 
 alleged assault, in reference to another distinct transaction between the plaintiff 
 and the other defendant Erskine, of a date anterior to the conversation, and in 
 no w^ay connected with the alleged assault, or with any of the circumstances in 
 which it originated, or by which it was attended. If an assault were committed 
 by tlie plaintiff upon Erskine, prior to the assault in question, having no 
 connection with it or with any of its circumstances; or if a state of enmity 
 between them resulted from the first assault, which continued down to the time 
 of the last, these facts could furnish no just ground for the inference that the 
 defendant Chase did not assault the plaintiff as alleged, nor that the plaintiff' 
 committed the first assault, upon the occasion in question, upon Erskine. nor that 
 Chase interfered between them to prevent a breach of the peace ; they were 
 collateral matters having no relevancy to the issue. It is also clear that there is 
 no ground on which the testimony could have been received in mitigation of 
 damages, unless the principle be recognized that Chase should be held to pay 
 less for his assault upon the plaintiff, because the plaintiff had formerly been 
 guilty of an assault upon a third person."'
 
 § 270. PROOF or MITIGATING CIRCUMSTANCES. 241 
 
 ter of the offense.^ Where an action Avas brouo-ht for as- 
 saiilting the plaintiff and seizing his goods, it was held that 
 it might be shown in mitigation of damages that the defend- 
 ant was a custom house officer, and that the plaintiff was 
 going away from a vessel with goods liable to duty, where- 
 upon the defendant detained him and took possession of his 
 goods; this not amounting to a complete justification, inas- 
 much as it was not lawful for a custom house officer to take 
 goods forcibly from a person without a previous demand.^* 
 
 ' Linford v. Lake, 3 H. & N. 376 ; 27 L. J. Exch. 334. 
 
 ^ De Gondouiu v. Lewis, 10 Ad. & E. 117. 
 
 * The fact that the defendant procured his own arrest and fine for the oflense^ 
 is not a defense (State v. Cole, 48 Mo. 70). 
 
 Where the assault and battery resulted from a quarrel, in which each party 
 charged the other with falsehood, the defendant cannot prove, in mitigation of 
 damages, that what- he said was true, and Avhat the j^laintiff said was false 
 (Butt V. Gould, 34 Ind. 552). 
 
 The owner of a slave gave A. liberty to whip him whenever he found him., 
 on his premises. A. found the slave on his premises and whipped him ; and 
 about three years afterward having found him there again, whipped him a 
 second time much more severel\-. In an action against A. for the second whip- 
 ping, it was held that evidence of the first whipping might be given in evi- 
 dence in mitigation of damages ; and that if the plaintiff wished to restrict its 
 influence upon the jury, he should have asked the court to instruct them ac- 
 cordingly (Boling V. Wright, 16 Ala. .664). 
 
 In Wadsworth v. Treat, 43 Maine, 163, which was an action for an assault 
 and battery, it appeared that the acts complained of were committed soon after 
 the defendant had paid an execution upon a judgment recovered against him in 
 favor of the plaintifl''s son. It was held not proper for the defendant, in 
 mitigation of damages, to introduce evidence to show that the judgment was 
 obtained in a groundless suit, which he was prevented from defending by 
 inevitable accident. Tenney, C. J., said: — "The judgment of a court of com- 
 petent jurisdiction, until reversed, is conclusive evidence of a just and legal debt. 
 To receive or enforce payment thereof, by the creditor or his agent, is no ground 
 of complaint on the part of the debtor; and if the evidence offered were al- 
 lowed, it would authorize the jury to treat as a palliation of the defendant's un- 
 lawful and even criminal acts, the plaintiff's conduct which was, in all respects, 
 legal and proper." 
 
 In Alabama and South Carolina, it cannot be shown in mitigation of damages 
 that the defendant has been indicted, convicted and fined (Phillips v. Kelly, 29 
 Ala. 628; Wolft"v. Cohen, 8 Rich. S. C. R. 144). But in Alabama, it has been 
 held that in trespass for injuries to the person, the defendant may give in evi- 
 dence the record of a prosecution for felony pending against him, and prove by 
 parol, that the indictment and the civil action are founded on the same transac- 
 tion (Blackburn v. Minter, 22 Ala. 613). Evidence that the defendant endeavored 
 to have an interview with the plaintiff, in regard to the affair, and that he 
 voluntarily paid the surgeon for his attendance, is not admissible to disprove the 
 intent and circumstances of the original attack (Johnson v. McKee, 27 Mich. 
 471). That a blow was given in the presence of the court, may be proved in 
 aggravation of the damages, though it might also have been punished by the 
 court as a contempt (Pendleton v. Davis. 1 Jones' Law, N. C. 98). 
 Vol. I.— 16
 
 242 ASSAULT AND BATTERY. § 271. 
 
 § 2ri. In an action for assaulting the plaintiff and at- 
 temj)ting, against her will, to have carnal connection with 
 her, and by force and violence, and against her will, to ravish 
 her, evidence to repel the allegation of force, to show con- 
 sent, or that no violence was done or designed to the will of 
 the prosecutrix, would be admissible as tending to disprove 
 the very body of the offense. To this end it may be proved 
 that the prosecutrix has previously had voluntary sexual in- 
 tercourse with the defendant. The princij^le uj)on which 
 such evidence is allowed is, that it is much more imj^robable 
 that a common prostitute, or the prisoner's concubine, would 
 withhold her assent, than one less depraved. Such facts are 
 proper for the consideration of the jury, on the ground that 
 they furnish evidence of consent, or evidence from which the 
 juiy may infer consent. Within the same princij)le, every 
 species of evidence showing previous lascivious conduct on 
 the part of the plaintiff, in the presence of the defendant, or 
 in her intercourse with him, designed or adapted to incite or 
 invite him to take liberties with her person, or to induce him 
 to believe that such advances on his part would not be un- 
 acceptable to her, are admissible;^ and the defendant may 
 prove that the plaintiff had intercourse with other persons 
 than him, about the time of the alleored assault.^ * 
 
 ' Grossman v. Bradley, 53 Barb. 125 ; Ford v. Jones, 62 lb. 484. 
 
 ^ Watry v. Ferber, 18 Wis. 500. 
 
 * In Grossman v. Bradley, stq^ra, the defendant, at the trial at the circuit, of- 
 fered to prove that every advance that was made between the parties of a las- 
 civious or licentious character, was made by the plaintiff. He made thirteen 
 diflerent offers of evidence tending to tlie same end — to show lascivious conduct 
 on the part of the plaintiff, and most of them to acts to or with the defendant, 
 or in liis presence. The evidence was, however, excluded and a verdict found 
 for the plaintiif. The Supreme Court, in granting a new trial, said: — "All of 
 this class of evidence, I think, was admissible. The facts stated in these offers, 
 all tended to prove either that the plaintiff was seeking to induce the defendant 
 to have sexual intercourse with her, or was seeking to entrap him iuto difficul- 
 ties, such as the commencement and pendency of this suit involves. Upon that 
 assumption, if the latter were her purpose, it is none the less fatal to the action 
 than the former. It takes away the idea that force was necessary, or designed 
 or attempted, to have such intercourse. A woman who leads a man into a trap, or 
 uses meretricious arts with such a design, cannot pretend that there was an at- 
 tempt to ravish her, or that he attempted such ends by force and against her 
 will and utmost resistance. The offense, and the cause of action, consists in the 
 attempt to accomplish the end implied by force. It is absurd to impute such
 
 § 272. EVIDENCE AS TO CHARACTER. 243 
 
 37. Evidence as to character. 
 
 § 272. The bad character or disposition of the plaintiff, 
 as that he is a turbulent and desperate man, is not admissi- 
 ble in evidence by way of excuse ; ^ especially where such 
 
 design when the conduct of the woman repels all idea of the occasion or the 
 necessity for the use of force. The evidence excluded, I think, was admissible, 
 as tending to show consent on the part of the plaintift', and that no uifdesired 
 force or violence was used or attempted upon her person, and, in this view, was 
 a complete defense to tlie cause of action. The other exceptions, for the ex- 
 clusion of evidence tending to show improper conduct between the plaintiff and 
 other persons, stand upon different grounds. The evidence of particular acts of 
 immodesty, on the part of the plaintiff" or prosecutrix, in this class of cases, 
 should be limited, I think, to those committed with, or in the presence of, the 
 defendant." Referring to The People v. Jackson, 3 Parker, 398, as overruling, 
 on the latter point. The People v, Abbott, 19 Wend. 192, Johnson, J., in the 
 course of along dissenting opinion, said: — ''The evidence had no legitimate 
 tendency to show that the plaintiff invited or encouraged the defendant's acts, 
 on the day in question. She might have invited or encouraged similar acts, on 
 other days, and the evidence offered might have proved that fact, but it could 
 raise no legitimate inference that the acts were either invited or encouraged on 
 the day and occasion in question. Suppose, in an action of this character be- 
 tween two men, the defense should be that the assault complained of, was in an 
 encounter in which the plaintiff" had challenged the defendant to fight with him, 
 and they had mutually agreed to figlit. That, if true, would be a good defense 
 in the absence of excessive violence. But suppose, further, that the defendant 
 should offer to prove such challenge and agreement, on the occasion in question, 
 by showing that the plaintiff" had done so on a previous occasion. The evidence 
 would be palpably incompetent ; and the same rule must apply here. In each 
 case, the fact to be made out is the invitation and consent ; and it is perfectly 
 immaterial whether the encounter, in regard to which the assent is sought to be 
 established, is of an amatory or a pugnacious character. The consent, in the one 
 case, must be established by evidence of the same character that would be neces- 
 sary to establish it in the other. There cannot be one rule where two males are 
 parties, and another where a female is a party against a male. Or take this case 
 upon the other side. Suppose the plaintiff, by way of proving that the defend- 
 ant had assaulted her on the occasion in question, had offered to prove that he 
 had laid hands upon her, on some previous occasion, without her consent and 
 against her will ; I think no one will pretend that such evidence would have 
 been competent, by way of establisliing the facts, if objected to. Or, still 
 further, suppose the offer had been to show that the defendant had, on other oc- 
 casions, assaulted other females in the same way, as evidence bearing upon the 
 issue. These illustrations must show, I think, that the evidence was wholly 
 inadmissiljle upon the issue. * * * * It is claimed that the evidence was 
 erroneously excluded for the reason that the plaintiff", in her complaint, alleged 
 that the assault and l^attery complained of was committed with tlie intent, on 
 the part of the plaintiff, to ravish. But this is no reason, whatever, for its ad- 
 mission. The intent was not the gravamen of the action, in any sense or degree. 
 It was no part of the issue to be tried. It was a mere civil action; and the cause 
 of it did not rest in the intent of tlie plaintiff' at all, as will be seen upon a mo- 
 ment's careful and candid consideration. The very act of battery implies an un- 
 lawful intent, and it is not the subject of proof. It is quite immaterial, so far 
 as the cause of action is concerned, what the particular intent was, if the act was 
 not justifiable." 
 
 ' Smithwick v. Ward, 7 Jones L. N. C. 64.
 
 244 ASSAULT AND BATTERY. § 272. 
 
 character had nothiDg to do with the assault ; ^ notwithstand- 
 ing the statement or claim of the plaintiff's counsel that the 
 assault committed by the defendant tended to degrade the 
 plaintiff and injure his standing and reputation in the com- 
 munity. ^ The fact that a man bears a bad character, or 
 keeps company with persons of evil repute, furnishes no just 
 provocation or palliation for doing violence to his person. 
 He may forfeit the good opinion of his fellow men, and be- 
 come an object of pity or contempt, by reason of his evil 
 habits and associations, and want of moral worth ; but there 
 is no principle of law or ethics, on which, for such a cause^ 
 imj^unity is to be granted to those who inflict injuries upon 
 another, or full indemnity to be denied to a party for a vio- 
 lation of the sanctity of his j^erson. ^* In an action for 
 assault and battery, committed in aiTestiug the plaintiff 
 while he was intoxicated, the defendants offered to show in 
 justification, that ardent spirits made the plaintiff furious 
 and ungovernable, and that a year or more subsequent to 
 the alleged assault, the plaintiff', while drunk, threw stones 
 at a numJDer of persons, resisted the officers who arrested 
 him, and committed other acts of violence ; but it was held 
 that the proposed evidence was not admissible. ^ Where the 
 assault and battery was committed on the plaintiff after he 
 had left a house into Avhich he had wrongfully intruded, it 
 was urged in behalf of the defendant that evidence of the 
 
 • McKenzie v. Allen, 3 Strobh. 546. ^ Bruce v. Priest, 5 Allen, 100. 
 
 ' Brown v. Gordon, 1 Gray, 182 ; Ross v. Lapham, 14 Mass. 375 ; 1 Greeulf. 
 Ev. §§ 52, 55 ; 2 lb. § 369. 
 
 ^ Ellis V. Short, 31 Pick. 142. 
 
 * An assault and battery is none the less a wrong for -which the party injured 
 is entitled to damages because inflicted on a person enfeebled by disease, or by 
 any other cause. The defendant cannot therefore screen himself from the legiti- 
 mate consequences of his own unlawful act by proof of the previous bad habits 
 of the plaintiS" (Littlehale v. Dix, 11 Cush. 364). The following evidence offered 
 by the defendant in mitigation of damages, was held not admissible: That the 
 plaintiff ''was a lazy vagabond who would not work if he could help it; that he 
 had no property that could be reached by legal process ; that he had been in 
 debt to the defendant a long time, and would not pay him; that the defendant 
 on the day of the assault, had offered the plaintiff ten dollars an hour if he would 
 work for him in payment of said debt, but that he had refused to do it " (Ward 
 V. State, 28 Ala. 53).
 
 § 273. EVIDENCE AS TO CHAEACTEE. 245 
 
 bad character of the plaintiff and his companion was admis- 
 sible in connection with the facts which took place in the 
 house previous to the assault. But the court remarked that 
 there were two answers to such a suggestion. The first was, 
 that those facts had no such connection with the assault as 
 to form part of the res gesUe. When the assault was com- 
 mitted, the plaintiff had left the house, and thus removed 
 any cause of provocation which his presence there had occa- 
 sioned. That the other and better answer was, that the mo- 
 tive which led the defendant to order the plaintiff to leave 
 the house, was wholly immaterial to the issue. He had a 
 right to give such an order, and tlie plaintiff was bound to 
 obey it. After it was obeyed, it was quite immaterial to 
 show that the character of the plaintiff was such as to render 
 Ms presence in the dwelling of the defendant disagreeable or 
 intolerable, or that he had valid and sufficient reasons for 
 removing him therefrom. ^ 
 
 § 273. It has sometimes been contended that where the 
 action is to recover damages for an injury committed against 
 the person with violence, alleging malice, and where the evi- 
 dence is conflicting, proof of the defendant's general good 
 character should be received. But there seems to be no 
 authority which recognizes any sucb distinction or excep- 
 tion. ^ All the circumstances attending an assault, the lan- 
 guage, gestures, looks, and general deportment of the par- 
 ties — everything, in short, which can j^roperly be deemed 
 res gestcB^ may be laid before the jury. All these are fairly 
 involved in the issue, and the parties are bound to be pre- 
 pared with proof concerning them. But beyond this, they 
 cannot be permitted to go. The character of the parties is 
 in no way concerned in the nature of tke actiou. It is wholly 
 a collateral matter, and if introduced, would raise a false 
 issue entirely aside from the merits of the case. 
 
 ' Bruce v. Priest, supra; Luud v. Tyngsborough, 9 Cush. 36. 
 
 * Porter v. Seller, 33 Penn. St. R. 434; Smithwick v. Ward, 7 Jones, N. C. 64.
 
 246 ASSAULT AND BATTERY. §§ 274, 275- 
 
 38. Proof of consequences of ivrongful act. 
 
 § 274. The plaintiff may introduce under a general alleg- 
 ation evidence of all the immediate consequences and natural 
 results of which the act was the direct cause, and the jury- 
 are to determine whether the consequences did or did not 
 necessarily, or beyond reasonable doubt, result from the in- 
 jury.^ Where, therefore, the plaintiff offered to prove by the 
 physician who attended him, that he afterward had a fever, 
 which, the physician thought might have been caused by the 
 battery, the evidence was held admissible, although objected 
 to, on the ground that the declaration did not allege any 
 special or particular consequence.^ So likewise, in an action 
 for breaking and entering a man's dwelling-house, and as- 
 saulting and beating liim, the plaintiff was permitted to 
 prove that his wife was so terrified by the conduct of tlie 
 defendant that she was immediately taken ill and died shortly 
 afterward, not as a substantive ground of damage, but in 
 order to show how outrao-eous and violent had been the con- 
 duct of the defendant.* But the amount of a physician's 
 bill, or other consequential damage, cannot be j)roved unless 
 it be specially averred.* * 
 
 § 275. Results of the battery which are purely conjec- 
 tural cannot be given in evidence, although they be alleged 
 as special damage. As for instance : the loss by reason of the 
 battery of the position of surgeon's mate ; or that the plaint- 
 iff, who was a merchant, was unable to go to his store, 
 whereby he lost the opportunity to close a bargain which 
 would have been profitable ; or that a farmer was incapaci- 
 tated from gathering bis crops, and thereby lost thera.^ In an 
 
 ' Hodges V. Nance, 1 Swan, Tenn. 57. 
 
 ^ Avery v. Ray, 1 Mass. 12. ' Huxley v. Berg, 1 Stark. 98. 
 
 * O'Leary v. Rowan, 31 Mo. 117; Moore v. Adam, 2 Chit. 198. 
 ^ Brown v. Cumraings, 7 Allen, 507. 
 
 * In an action against a railroad company for an injury received throiigli tlie 
 wanton misconduct of an employee, evidence of the expenses of the litigation, 
 including the proper fees of counsel, is admissible (New Orleans &c. R. R. Co. 
 V. Allbritton, 38 Miss. 242).
 
 § 27G. EVIDENCE AS TO PECUNIARY CONDITION. 247 
 
 action by husband and wife for an assault and battery on the 
 latter, the loss of the wife's time cannot be taken into con- 
 sideration in assessing the damages.^ In cases like the fore- 
 going, there are necessarily intervening events and independent 
 causes which make the connection with the original injury 
 more or less remote. The rule under consideration applies 
 equally to the defense. Therefore, in an action for biting 
 and bruising the plaintiff's finger so that it had to be amjou- 
 tated, it was held that evidence was not admissible that the 
 plaintiff was an habitual drunkard about and after the time 
 of the alleged trespass, from which the jury might infer that 
 the loss of the finger resulted from a state of health produced 
 by intemperance." 
 
 39. Evidence as to pecuniary condition of party. 
 
 § 276. An inquiry into the pecuniary circumstances of 
 the party has often been permitted on the question of dam- 
 ages. In Illinois, it Avas held that evidence might be given 
 of the pecuniary condition of the plaintiff',^ and that it might 
 be proved that the plaintiff was poor and the defendant 
 rich.* In North Carolina, the wealth of the defendant, and 
 in Delaware his condition and pursuit in life, may be gone 
 into.^ In Kentucky, the admission of evidence of the wealth 
 of the defendant has been held no ground for a reversal of 
 the judgment unless the verdict is excessive.® In Wisconsin, 
 where in an action for assault and battery there was no proof 
 that all of the defendant's means were required for the sup- 
 port of his family, it was held that evidence of the number, age 
 and condition of his family, offered in mitigation of damages, 
 was properly rejected.'^ 
 
 * Barnes v. Martin, 15 Wis. 240. 
 
 ' Wheat V. Lowe, 7 Ala. 311. ' Cochran v. Ammou, 16 111. 316. 
 
 * McNamara v. King, 2 Gilman, 432. 
 
 ^ Pendleton v. Davis, 1 Jones' Law, N. C. 98; Jarvis v. Manlove, 5 Earring. 
 Del. 453. 
 
 ° Gore V. Chadwick, 6 Dana, 477. 
 ' Schmidt v. Pfeil, 24 Wis. 452.
 
 248 ASSAULT AND BATTERY. §§ 277, 278. 
 
 40. Damages in general. 
 § 277. The authorities class assault and battery with 
 some other causes of action touching the power of juries in 
 the assessment of damao-es, and allow them to a o-reat 
 extent the exercise of their own discretion ; there being in 
 general no precise rule by which the injury can be measured.^ 
 The jury may have regard to time and place, and in fact 
 every other circumstance which has injuriously affected the 
 plaintiff.''^ He is entitled to recover for the bodily and 
 mental pain endured, and for the loss sustained;^ and the 
 expenses of the litigation may be taken into consideration.* 
 In Klein v. Thompson,^ it was held that the plaintiff was 
 entitled to be allowed the amount of the doctor's bill, al- 
 though paid previous to the trial by the trustees of the 
 township to whom he was under no legal obligation to refund 
 it. And where it appeared that a former trial for the same 
 cause was brought to a premature close by the death of one 
 of the jurors, it was held that the jury might consider the 
 exj^enses of the former trial, in their estimate of the damages.*' 
 
 § 278. It is proper for the jury to consider the probable 
 future injury that will result to the plaintiff" from the act of 
 violence. For the damages, when given, are taken to em- 
 
 ' Wadsworth v. Treat, 43 Maine, 163: Com. v. Sessions, 5 Mass. 437; CofBn 
 T. Coffin, 4 lb. 41 ; Brunswick v. Slowniian, 8 C. B. 317; Gregory v. Cotterell, 5 
 El. & Bl. 571; L. J. Q. B. 217; Sedg. on Dam. 6th ed. p. 669. note 1. 
 
 ' TuUidge v. Wade, 3 AVils. 18; Taber v. Hutson, 5 Ind. 322; Cox v. Vau- 
 derkleed, 21 lb. 164. 
 
 = Pennsvlv. «&c. Canal Co. v. Graham, 63 Penn. St. R. 290 ; Matteson v. N. 
 Y. Cent. R. R. Co. 62 Barb. 364; Stockton v. Frev, 4 Gill, 406; Smith v. 
 Overbv, 30 Geo. 241 ; Holyoke v. Grand Trunk R. R. 48 N. Hamp. 541 ; Smith 
 -V. Hoicomb, 99 Mass. 552. 
 
 ^ Gladwell v. Steggall, 5 B. N. C. 733; Cleveland &c. R. R. Co. v. Bartram, 
 11 Ohio, N. S. 457; Roberts v. Mason, 10 lb. 277; New Orleans &c. R. R. Co. 
 -V. Allbritton, 38 Miss. 242 ; ante, § 215. 
 
 ' 19 Ohio St. R. 5G9. 
 
 ® Noyes v. Ward, 19 Conn. 250; and see Linsley v. Bushnell, 15 lb. 236. 
 
 * But the plaintiff is not entitled to recover for damage which is not the 
 direct result of the wrongful act. Where A. committed an assault and ijattery 
 UDon B. in the course of which B. fired a pistol and wounded C. and C. recov- 
 ered against B. therefor, it was held that B. in an action against A. for the 
 assault was not entitled to recover the same amount as so much to be reimbursed 
 as special damages (Whatley v. Murrell, 1 Strobh. 389).
 
 § 279. DAMAGES FOR WOUNDED FEELING. 249 
 
 brace all the injurious consequences of the wrongful act, un- 
 known as well as known, which may thereafter arise. 
 Accordingly, w^here the plaintiff had received an apparently 
 slight blow on the head, for which he recovered small dam- 
 ages, and it afterward appearing that the skull had been frac- 
 tured, he brought a second action, which, it was contended, 
 might be maintained for the reason that the former recovery 
 was for a mere battery, and this for a mayhem, it w^as held 
 that the plaintiff could not recover, for there w^as but one 
 blow, and that was the cause of action in both suits ; and 
 the distinction was pointed out between such a case and one 
 of continuing nuisance, where each continuance is a fresh 
 nuisance.-* 
 
 41. Damages for wounded feeling. 
 §279. The insult and indignity inflicted upon a person 
 by giving him a blow^, w^ith anger, rudeness, or insolence, oc- 
 casion mental suffering. In many cases they constitute the 
 principal element of damage. They ought to be regarded as 
 an aggravation of the tort, on the same ground that insult 
 and indignity, offered by the plaintiff to tke defendant, wMch 
 provoked the assault, may be given in evidence in mitigation 
 of damages. Even w^here there is no insult or indignity, 
 mental suffering may be a ground of damage in action for an 
 injury to the person.^ In every case where the act complained 
 of was wantonly done, and there is nothing in the evidence 
 which shows improper conduct in the plaintiff at the time he 
 received the injury, he will be entitled to the presumption 
 that he has suffered, in his feelings, as every honorable man 
 would be likely to do under similar circumstances.^ * Where, 
 
 ' Fetter v. Beal, 1 Ld. Raym. 339; ante, §§ 22, 112. 
 
 " Smith V. Holcomb, supra\ Canning v. Williamstown, 1 Cush. 451. 
 
 ' Wadsworthv. Treat, 43 Maine, 163; Avery v. Rav, 1 Mass. 12; Sampson v. 
 Coy, 15 lb. 493. 
 
 * In Wadsworth v. Treat, si/jn-a, the mental anxiety, public degradation, and 
 ■wounded sensibility of the plaintifl', being insisted upon to enhance tiie damages 
 of an alleged assault and battery, it was objected that tliey were not specified in 
 the declaration. The court, in holding that this was not necessary, said : — "It 
 cannot be doubted, that mental anxiety, and injury to the finer feelings of human 
 nature, as well as bodily suffering, may be produced from wanton and unpro-
 
 250 ASSAULT AND BATTERY. g 279. 
 
 in an action against a colonel of militia, for ordering tlie 
 plaintiff, a common soldier, to be whipped, it appeared that 
 the colonel had acted nnjustifiably and illegally, and out of 
 mere spite and revenge, and the jury gave 150?. damages, and 
 a motion was made for a new trial, on the ground that the 
 man appeared to have been moderately punished and not 
 much hurt, and that the damages were disproportioned to 
 his sufferings, the court refused the application, because the 
 man was scandalized and disgraced by such a punishment.^ 
 In Eeed v. Davis,^ the defendants put the plaintiff's furniture 
 out of the house in which he was lawfully in possession, 
 as tenant at will, and forcibly ejected him and his family. 
 Some of the defendants seem to have thought that the tres- 
 pass could be committed with impunity, on account of the 
 poverty of the plaintiff. They took the plaintiff by the 
 shoulder, and, to use their own language, " huddled him out 
 of the house." They took hold of the plaintiff's wife and 
 compelled her to go out of the house into the highway, with 
 an infant in her arms, and destitute of suitable clothing 
 which she, in vain, attempted to find among the goods which 
 were put in the road. All the furniture was put out of the 
 house into a heap in the highway, and the plaintiffs papers 
 were blown about the road, and some articles of clothing 
 driven by the wind several rods from the house. During 
 this scene, the wife was greatly agitated. The plaintiff re- 
 sisted as long as he could, but was obliged to yield to su- 
 perior force. The jury having found a verdict for the plaintiff' 
 for $500 damages, a motion for a new trial, because the 
 damages were excessive, was denied, the court being equally 
 divided. In an action for wrongfully ejecting the plaintiff 
 from a railroad train, he is entitled to more than nominal 
 damages, although he sustains no pecuniary loss and no in- 
 
 voked violence inflicted by the hand of another. And if the former is a proper 
 basis of damages, under a specific allegation in the writ, it does not cease to be 
 so in a general declaration. The obviously probable effects of a beating, may be 
 given in evidence, though not alleged in the declaration." 
 
 ' Benson v. Frederick, 3 Burr. 1845. ' 4 Pick. 216.
 
 § 280. MALICIOUS INTENT AS AFFECTING THE DAMAGES. 251 
 
 jury to bis person. In such case, the jury may take into ac- 
 count, not only the annoyance, delay, and risk to the plaintiff, 
 but also the indignity.^ But in an action by husband and 
 wife, for an assault and battery on the wife, the public odium 
 incurred by exposing, at the trial, the domestic quarrels of 
 the husband and wife, cannot be considered by the jury in 
 fixino; the damao;es.^ * 
 
 42. Malicious intent as affecting the damages. 
 
 § 280. Where malice is proved or implied from the cir- 
 cumstances, juries may give exemplary damages beyond those 
 sustained by the plaintiff, by way of punishing the defendant, 
 and for the purpose of setting a wholesome example.^ Ac- 
 cordingly, in an action for attacking the plaintiff and biting 
 off part of his nose, the majority of the court held that the 
 following instruction to the jury by the judge before whom 
 the cause was tried was correct : that " if they should find 
 that the defendant committed the act wantonly, they would 
 be authorized, if they thought proper, in addition to the 
 actual damages the plaintiff^ had sustained, to give him a 
 ftu'ther sum as exemplary or vindictive damages, both as a 
 protection to the plaintiff and as a salutary example to 
 others to deter them from offending in like cases." * f So 
 
 ' Chicago &c. R. R. Co. v. Flagg, 43 111. 364; Same v. Williams, 55 lb. 185. 
 
 ° Barues v. Martin, 15 Wis. 240. 
 
 ' Lane v. Wilcox, 55 Barb, 615; McNaniara v. King, 2 Oilman, 432; Foote 
 V. Nichols, 28 111. 486; Causae v. Anders, 4 Dev. & Bat. 246; Slater v. Sherman, 
 5 Bush, 206; Reader v. Purdy, 48 111. 261; Baltimore &c. R. R. Co. v. Blochar, 
 27 Md. 277; Green v. Craig, 47 Mo. 90; Farwell v. Warren, 51 111. 467; ante, 
 §115. 
 
 ' Pike V. Dilling, 48 Maine, 539. 
 
 * In an action of trespass for expelling the plaintiii' and his wife from the 
 town, and breaking up the plaintiff's business, injuring his jDroperty, making 
 his wife ill, whereby he '' lost her comfort and services, and was put to great ex- 
 pense for medicine and medical aid," he cannot recover for the wife's ''mental 
 anguish, in being separated from her husband, nor for her feelings as a woman 
 compelled to al)andon a chosen residence, and turn her back on associations formed 
 in early life.'' Damages for such injuries, if recoverable, could only be recovered 
 in an action in which the husband and wife joined (Hooper v. Haskell, 56 Maine, 
 251 ; citing Laughlin v. Eaton, 54 lb. 156. 
 
 t In the above case, the jury having found a verdict for the plaintiff for 
 $151.25, the court, in overruling exceptions to it, remarked that the question
 
 252 . ASSAULT AND BATTERY. § 280. 
 
 likewise, in auotber case, tlie jury were instructed that if they 
 believed that the attack was wanton and unprovoked and 
 with a deadly weapon, they could give exemplary, or even 
 vindictive damages, if necessary to repress the practice of 
 carrying and using deadly or dangerous w^eapons. It was 
 objected to this instruction that there was no evidence that 
 any such practice existed in the community where the injury 
 was inflicted and the cause tried. It was held that the 
 direction was correct without the reason. If the attack was 
 wanton and unprovoked, and with a deadly weapon, it was 
 a case for vindictive damages, whether there was such a practice 
 or not, and whether it would repress it or not. The addition 
 could not injure the defendant, but might benefit him, for 
 the jury might infer that unless it was necessary to repress 
 the practice spoken of, vindictive damages should not be 
 given.^ In Maryland, where a child was run over by a steam 
 engine under cii'cumstances of wanton, malicious and out- 
 presented by the instructions iiad never before l)een determined in Maine, but 
 that they were in entire accordance with the weight of judicial authority in this 
 country. The following cases were cited:— Day v. Woodworth, 13 How. 371; 
 Tillotson V. Cheethaiu, 3" Johns. 56; Taylor v. Church, 4 Seld. 452; Hopkins v. 
 Atlantic & St. Lawrence R. R. Co. 36 N." H. 10; Huntlv v. Bacon, 15 Conn. 267; 
 Pastorius v. Fisher, 1 Rawle, 27 ; Porter v. Seller, 23 P"enn. 424 ; Stout v. Prall, 
 Coxe N. J. R. 71); reaffirmed in Winter v. Peterson, 4 Zab. 524; McNamara v. 
 King, 2 Gilman, 432; Deane v. Blackwell, 18 111. 336; Fleet v. Hollenkemp, 13 
 B. Mon. 219; Kountz v. Brown, 16 B. Mon. 577; Louder v. Hinson, 4 Jones, 
 369; Tullidge v. Wade, 3 Wilson, 18. Rice, .J., dissenting, said: ''In actions 
 of tcrt, damages are given as a compensation for injuries received, and should 
 be commensurate with those injuries — no more, no less. Exemplary, vindictive, 
 or punitive damages are something be\'ond, given by way of punishment. This 
 rule of damages is presented in the ruling in this case distinctly and without any 
 ambiguity. Hitherto it has not been adopted in this State. Deeming it unsound 
 and pernicious in principle, I cannot concur in engrafting it upon our law, nor 
 in adopting it as a rule of practice in our courts. Under the rule as stated in 
 this case, a defendant may be required to make full compensation to the injured 
 party, be punished by fine without legal limitation by a jury for private benefit, 
 and then be liable to indictment by a grand jury for a public wrong, and pun- 
 ished by the court to the extent of the law, and all for the same transaction. 
 The soundness of the rule has been much discussed ^^?v and con. by courts and 
 jurists. The authorities upon the subject are numerous. To collate or analyze 
 them would give no additional light. A statement of the proposition itself is, 
 to a legal mind, on principle, a conclusive argument against it. It stands only 
 on contested and doubtful authority. But no number of cases or weight of 
 authority can, in my judgment, relieve the rule of its inconsistency with the 
 universally recognized principles of natural justice, nor free it from the smack of 
 barbarism." See Sedgwick on Damages, 6th ed. p. 566, note, where the doctrine 
 of exemplary damages is ably discussed. 
 ' Porter v. Seiler, 23 Penn. St. R. 424.
 
 § 281. MALICIOUS INTENT AS AFFECTING THE DAMAGES. 253 
 
 rageous conduct on tlie part of tlie defendant, the plaintiff 
 was awarded exemplary damages.^ In Mississippi, it has 
 been held, that to justify a verdict for such damages, there 
 must have been either malice, violence, fraud, or oppression.^ 
 
 § 281. We need scarcely say that there is a distinction 
 between malice in law, which is a mere inference or pre- 
 sumption of law, from an act unlawful in itself injurious to 
 another, and. express or actual malice, which relates to the 
 actual state or condition of mind of the person who did the 
 act, and which is a question of fact upon the circumstances of 
 each particular case. To constitute express, or actual malice, 
 it is not necessary that the act should proceed from hatred or 
 ill-will to the person injured, but it may be inferred, from a 
 mischievous intention of the mind, or from inexcusable reck- 
 lessness.^ An act done with the intention of annoying, har- 
 assing or teasing, after due warning, is malicious, in the sense 
 in which that term is understood in the law and as it is 
 applied to the question of damages. A consideration of the 
 circumstances under which a wrons; was committed neces- 
 sarily includes the motive or intention of the party charged. 
 There is an obvious distinction between an injury proceeding 
 from an act done with no harmful intent, and an injury, 
 though greater than was intended, evincing a mischievous 
 disposition.^ In an action for assault and battery, it appeared 
 that the defendant was the keeper of a liquor store in New 
 York ; that on a Sunday afternoon he invited the plaintiff to 
 come to his store and take a glass of wine ; that the plaintiff ac- 
 cepted the invitation, and while they were at the store the 
 defendant and other persons who were there commenced 
 playing at a game. The game consisted in blowing a sharp 
 piece of steel, with feathers attached to it, through a tube at 
 
 ' Bait. &c. R. R. Co. V. Breinig, 25 Md. 378. 
 
 = New Orleans &c. R. R. Co. v. Statham, 42 Miss. 607. 
 
 ' 2 Stark. Ev. 074 ; Rex v. Harvey, 2 B. & C. 2C8 ; Duncan v. Thwaites, 3 lb. 
 585; Wiggin v. Coffin, 3 Story, 7; Com. v. York, 9 Mete. 104; Etchberry v. 
 Levielle, 2 Hilt. 40. 
 
 ■" Ante, §§ 14, et seq.
 
 254 . ASSAULT AND BATTERY. § 281. 
 
 a target. When the defendant blew the j^iece of steel at the 
 target, the plaintiff went up to count the game ; whereupon 
 the defendant blew through, tlie tube at him, and tlie instru- 
 ment or arrow struck him in the back collar of his coat. 
 The defendant was then told by a bystander that he ought 
 not to do it ; that it was dangerous ; that if the plaintiff 
 should turn kis head it might hurt him. But not keeding 
 this warning, he blew the arrow at the plaintiff again and 
 struck kim in tke back. The plaintiff then went up to tke 
 defendant in a menacing manner and raised kis fist to strike 
 kim. Some kard words passed between tkem, tke plaintiff 
 appearing to be in a passion, tke defendant laugking and in 
 good nature and not excited. A few minutes after, tke 
 plaintiff being near tke target, tke defendant skot at kim 
 again, and as the plaintiff stepped back from tke target and 
 turned kis kead, tke defendant j)ointed tke tube at kim, blew 
 tkrougk it again, and tke instrument struck tke plaintiff in 
 tke eye. Tke bystanders gatkered around, tke plaintiff drew 
 tke instrument from kis eye, and as ke did so tke blood flowed 
 and ke seemed to be in muck pain. Inflammation ensued, 
 and ke suffered a good deal for four and a kalf montks, being 
 confined to kis bed during tke most of tkat time, and be- 
 coming blind in tke eye. His pkysician's and otker bills 
 amounted $912. He was a builder. He kad to abandon 
 kis work in consequence of tke injury, and had not been able 
 up to the time of the trial — seven months afterward — to do 
 any business. At the trial, the judge was requested to in- 
 struct the jury, that as the plaintiff was present in a public 
 tippling kouse engaged in playing tke game out of which the 
 injury arose, which was in violation of law, ke could not re- 
 cover damages for tke injury, or, as ke was engaged in an 
 amusement in an unlawful manner, tkat tkat migkt be taken 
 into consideration in mitio-ation of damao;es, wkick instruc- 
 tion tke judge refused. He ckarged tke jury tkat if the 
 injury was the result purely of an accident, then the defend- 
 ant was liable only for the actual damages, but that if the 
 defendant acted with the intention of annoying, karassing or
 
 § 282. DAMAGES FOR ASSAULT UPON CHILD, ETC. 255 
 
 teasing the plaintiff after warning, then tlie rule would be 
 different, even though the actual injury was unintentional. 
 A verdict having been found for the plaintiff for $5,000, the 
 court of review refused to disturb it.^ * 
 
 43. Damages for assault u])on child or servant. 
 
 § 282. In an action for assault and battery upon the 
 child or servant of the plaintiff, the suit being for the loss 
 or service, the actual loss, and if sickness resulted, the ex- 
 penses attending such sickness, can alone be recovered, not- 
 withstanding the person assaulted was a female, and the as- 
 
 ' Etchberry v. Levielle, 3 Hilton, 40. See Hyatt v. Adams, 16 Mich. 180. 
 
 * In Etchberry v. Levielle, swpra, the court, in affirming the judgment, said : 
 " The defendant may not have intended to put out the plaintiff's eye, or to do 
 him any serious bodily harm. But he wantonly and recklessly persisted in shoot- 
 ing or blowing at him a sharp pointed instrument, impelled, according to the 
 testimony, with great directness and force; an act highly dangerous, deliberately 
 done, exhibiting a reckless disregard of the safety of others, and a wanton and 
 malicious spirit of mischief. He repeated the act after he was urged to desist 
 and warned that it was dangerous; and when the plaintiff, provoked by the 
 repetition of the assault, threatened to strike him, be persisted, did it again, and 
 desisted only when the dart or arrow lodged in the plaintiff's eye. That this 
 was acting maliciously, in the sense in which the term is understood in the law, 
 does not, in my judgment, admit of doubt. It evinced a deliberate intention to 
 vex, injure and annoy, regardless of consequences. The consequences were 
 probably more serious than was intended, but the malicious act consisted iu 
 persistently doing, against all warning and remonstrance, what involved the 
 possibility of such a consequence. The object uf punitory or exemplary damages 
 is that they may operate as a punishment and restraint to the offender, and as a 
 benefit and example to the community, and certainly conduct like this comes 
 Avithin the spirit and intent of this principle of the law of damages." In an 
 action for assault and battery, the defendant justified that at the request of the 
 plaintiff's mother he went to the house where the plaintiff and her mother re- 
 sided in order to remove the plaintiff''s mother, who was infirm, thei'efrom, and 
 that he used no more force than was necessary to effect such removal. The judge 
 instructed the jury that the animus of the defendant ought to have a great effect 
 on the damages; that if he acted honestly, solely with a view to the welfare of 
 the plaintiff''s mother, the damages ought to be less than if he acted with wrong- 
 motives; that on the question of animus there was evidence that the defendant, 
 shortly after the removal, procured from the plaintiff's mother a will, giving him 
 all the property absolutely unconnected with any trust, and that it was for the 
 jury to say whether the removal was made with a design to have the will ex- 
 ecuted and from improper motives, or whether his motives were good and 
 charitable. It was held that this instruction was erroneous, the effect of it being 
 necessarily to influence the jury to find upon a matter not in evidence; that the 
 removal was from improper motives, and upon such a finding, to lead the jury to 
 enhance the damages, under the charge that the damages should be greater if the 
 animus was improper tlian if it were good and charitable (Grossman v. Harrison, 
 4 Robertson, 38). In Louisiana, wliere in an action for assault and battery it 
 appeared that the plaintiff, a free woman of color, had been whipped by an 
 officer under an hon<;st mistake as to her identity, it was held that she was not 
 entitled to exemplary damages (Perrine v. Blanchard, 15 La. An. 133).
 
 256 ASSAULT AND BATTERY. § 282. 
 
 sault was of an indecent character, and very aggravated.* 
 In such case, the female can herself maintain an action in 
 which she will be entitled to exemplary damages.^ But in 
 Edmondson v. Machell ^ trespass was brought by an aunt for 
 assaulting and beating her niece, 'per quod, &c. ; and, at the 
 same time, another action was brought by the niece for the 
 same assault. On the trial, the counsel for the aunt with- 
 drew the record, in the latter case, and declared their inten- 
 tion not to try it. The defendant insisted that the jury 
 could only give damages for the loss of service. The court 
 ruled otherwise, and placed the case on a footing with the 
 action for seduction. On a motion for a new trial, it was ad- 
 mitted that the damages were not excessive if the jury had 
 a rio^ht to take both actions into consideration ; and the 
 court, on the niece stipulating not to proceed in her action, 
 ]-efused to grant a new trial. It is obvious, from the report 
 of the case, that without this stipulation, the result would 
 have been different. In a recent action for assault and bat- 
 tery in Missouri, alleged to have been committed upon the 
 plaintiffs minor son, the judge, at the trial, charged the jury 
 that, if they found for the plaintiff, they should allow such 
 damages as would compensate him for his loss of time, 
 and for any damage he might have suffered, permanent or 
 
 ' Whitney \. Hitchcock, 4 Denio, 461. ' 2 Term R. 4. 
 
 * But in an action on the case for seduction, exemplary damages may be re- 
 covered (Sedgw. on Dam. 6th ed. p. 680). As observed I)y the court, in Wliit- 
 ney v. Hitchcock, supra, the action for seduction is peculiar, and would seem to 
 form an exception to the rule that damages only can be recovered where the ac- 
 tion is for loss of service consequential upon a direct injuiy. But there, the 
 party directly injured cannot sustain an action, and the rule of damages has al- 
 ways been considered as founded upon special reasons only applicable to that case. 
 Akerley v. Haines, 2 Caines R. 292, was an action of trespass for debauching 
 and getting with child the daughter of the plaintiff. The defendant's counsel 
 maintained that, if the daughter was of bad reputation, previous to the defend- 
 ant's connection with her, the present action would not lie. The judge, before 
 whom the case was tried, instructed the jury that, "though they might believe 
 in the previous want of chastity, they ought, nevertheless, to find a verdict for 
 the plaintiff, but assess damages only for the loss of service and expenses of ly- 
 ing in, and nothing for the loss of reputation." The Supreme Court, in refusing 
 a new trial, said: "The direction of the judge was right. The daughter not 
 being virtuous, is no reason why her father, unless he connived at and knew of 
 her criminal intercourse, should not recover for the injury done to him by the 
 loss of her service and the expenses of her confinement.''
 
 §§ 283, 284. DAMAGES AFTER CONVICTION. 257 
 
 otherwise, and tor the time aiul trouble in taking care <A' iiis 
 son ; and, in addition thereto, they miglit allow such further 
 sum, for exemplary damages, as they might think the circum- 
 stances and facts in evidence "warranted. And a verdict 
 having been found for the i)laintitf, it was sustained on ap- 
 peal.^ 
 
 § 283. Where in an action for l>rutal violence to a female, 
 it is proved that her resistance to sexual intercourse was over- 
 come, and her consent thereto ultimately ol)tained, the sexual 
 intercourse cannot be taken as the basis of damages, unless 
 the consent was obtained by the violence, in which case, be- 
 ing a part of the assault, it is a ground for exemplary dam- 
 ages. 
 
 44. Damages after conviction for pahliG offense. 
 
 § 284. In several, if not in most of the States, the ftxct 
 that the defendant has already been convicted and fined, in a 
 criminal prosecution, for the same offense, will not affect the 
 plaintiff's right to recover exemplary damages.^ * But in 
 Indiana, vindictive damages are not allowable in cases of 
 malicious trespass, the act being punishable criminally.'* 
 
 ' Klingman v. Holmes, 54 Mo. 304; disapproving Whitney v. Hitchcock, 
 supra. 
 
 " Cook V. Ellis, Hill, 400; Pliillips v. Kelly, 29 Ala. 028; Wolfl'v. Cohen, 
 8 Rich. S. C. K. 144; Kol)erts v. Mason. 10 Ohio, N. S. 277; JelTersou v. Adams, 
 4 llari-ing. 321; Corwin v. Walton, 18 Mo. 71; Wilson v. Middletou, 2 Cal. 54. 
 
 ' Butler V. Mercer, 14 Ind. 479. 
 
 * In Cook V. Ellis, svpra, wjiich was an action for an assault upon the plaint- 
 iff with intent to have carnid connection witii iier, it was not denied that there 
 were circumstances in proof wliicii authorized tlie jury to give exemplary dam- 
 ages, had not the defcMidant been convicted and lined $250, for the same assault, 
 Avhich he had paid. The court said : — " In vindictive actions (and this is agreed 
 to come within that class), jurors are always authorized to give exemplary dam- 
 ages where tiie injury is attended witl) circumstances of aggravation ; and tlie 
 rule is laid down witiiout the (pialilication, that we are to regard eitiier the pos- 
 Hil)le or the actual punisiimcnt of tlie defendant by indictment and conviction 
 at the suit of the people. That the criminal suit is not a bar to tlie civil, and 
 that no court will drive the prosecutor to elect between them, if the former be 
 by indictment, is entirely settled. He may proceed by both at the same time. 
 Nor will the court even .stay proceedings in the civil action, to govern themselves 
 by the event of a pending criminal prosecution. We concede that smart-money, 
 allowed by a jury, and a line im[)osed at the suit of the jieople, de))end on the 
 same principle. IJoth are jienal, and intended to deter others from the commis- 
 sion of the like crime. The former, however, becomes incidentally compensa- 
 Vor.. I.— 17
 
 258 ASSAULT AND BATTERY. § 285. 
 
 45. Damages accruing after cornmencement of action. 
 
 § 285. The plaintiff is entitled to sucli damages as are 
 the necessary or usual consequence of the injuries received, 
 although they accrued after the commencement of the suit.^ 
 Accordingly, where the leg of a slave was broken by another, 
 it was held that it might be proved that the slave died after 
 the action was commenced, or that the injury proved greater 
 by lapse of time, such consequences being the immediate re- 
 sults of the trespass.^ So, likewise, in an action, by a master, 
 for a personal injury to his servant, it was held that the 
 plaintiff was entitled to recover, not only for the loss of the 
 services of his servant, up to the period of commencing the 
 action, but if the servant continued disabled, down to the 
 time when it appeared, in the evidence, that the disability 
 might be expected to cease.^ 
 
 tory for damages, and, at the same time, answers the purposes of punishment. 
 The recoTery of such damages ought not to be mfide dependent on what has 
 been done by way of criminal prosecution, any more than on what may be done. 
 Nor are we prepared to concede that either a fine, or imprisonment, or both, 
 should be received in evidence to mitigate damages. True, if excluded, a 
 double punishment may sometimes ensue, but the preventive lies with the 
 criminal rather than the civil courts. The former have ample power, if they 
 choose to exert it, of preventing any great injury from excess of punishment. 
 In a proper case, if the party aggrieved will not release his private injury, or 
 stipulate to waive a suit for it, or at least to waive all claim for smart money, 
 the courts may, after conviction, either impose a tine merely nominal, or stay 
 proceedings till a trial shall be had in the civil action, and govern themselves 
 accordingly, in the final infliction of punishment. This, or something equivalent, 
 has often been done. The more usual case in England is, where the party comes 
 as the principal actor in the prosecution, by way of applying for a criminal in- 
 formation. The court will then make it a condition that he shall waive his 
 right of action. Indeed, so common has this become, that the very application 
 by the party is said to be considered, as an implied stipulation, not to bring a 
 private suit. This will therefore be stayed. And even where he proceeds by 
 indictment, the court often, in effect, turn over the whole case to be disposed of 
 by action, in the method before ment oned. The more usual course is to stay 
 proceedings on the criminal side, till those on the civil side are at an end. This 
 is not done with us, till after conviction ; and such is, no doubt, the better 
 practice " (citing Jones v. Clay, 1 Bos. & Pul. 191 ; Jacks v. Bell, 3 Carr. & 
 Payne, 316; Cady v. Bariow, 1 Man. & Ryl. 275; Rex v. Sparrow, 2 T. R. 198; 
 Rex V. Fielding, 2 Burr. 654; s. c. 2 Kenyon's R. 386; Com. v. Bliss, 1 Mass. 
 32; Com. v. Elliot, 2 Id. 372; The People v. Genl. Sess. of Genesee, 13 Johns. 85). 
 
 ■ Burchard v. Booth, 4 Wis. 67; ante, §§ 22, 112, 278. 
 
 - Johnson v. Perry, 2 Humph. 569. 
 
 ' Hodsoll V. Stallebrass, 11 Ad. & E. 301.
 
 § 286. INADEQUATE OR EXCESSIVE DAMAGES. 259 
 
 46. Inadequate or excessive damages. 
 
 § 286. The damages must have been clearly inadequate 
 or excessive to furnish a ground for a new trial. Six cents 
 damages for a violent blow would usually be deemed grossly 
 inadequate. But if the parties were engaged in a broil from 
 which very little injury resulted to either, such a verdict 
 would not be disturbed.^ The finding, however, of trivial 
 damages for breaches of the peace, which would lead the 
 ill disposed to consider an assault a thing that might be com- 
 mitted witli impunity, should not be encouraged. The fol- 
 lowing instruction was held not exceptionable : — That in as- 
 sessing the damages, it was the right and duty of the jury 
 " to consider the effect which the finding of light or trivial 
 damages, in actions for breaches of the peace, would have to 
 encourage a disregard of the laws and disturbances of the 
 public peace." ^ A much higher verdict than $85, for a vio- 
 lent beating and wounding with an axe, would not be deemed 
 excessive, especially where it was proved that the defendant 
 was amply able to pay.^ Where a landlord committed an 
 aggravated assault upon one of his guests, a verdict for $600 
 was sustained.^ But where an action was brought by a 
 servant, for an assault alleged to have been committed upon 
 him by his master, and it appeared that the master had given 
 the servant a slight blow, for impertinent behavior, where- 
 upon the servant turned upon his master and gave him a 
 violent thrashing, and then brought an action for the original 
 assault upon himself, and recovered 40^. damages, the court 
 granted a new trial.^ And in an action against a railroad 
 company, for the forcible ejection of the plaintifi^ from a street 
 car, by the conductor, there being no evidence of malice on 
 the part of the conductor, $750 damages were held exces- 
 sive.*^ And the same was held as to a verdict of $2,500, in 
 
 * Silverman v. Foreman, 3 E. D. Smith, 322. 
 
 " Beach v. Hancock, 7 Fost. 223. '' Gore v. Chadwick, 6 Dana, 477. 
 
 * Kelsey v. Henry, 49 111. 488. " Jones v. Sparrow, 5 Term R. 257. 
 
 * Turner v. North Beach R. R. Co. 34 Cal. 594.
 
 260 ASSAXTLT AND BATTEEY. §§ 287, 288. 
 
 an action for an assault on a married woman, with, an at- 
 tempt to commit rape, it appearing that the j)laintiff had re- 
 ceived no actual injury.^ 
 
 47. Costs. 
 
 § 287. A knowledge by the jury of the costs which will 
 follow their verdict, is sometimes important to enable them 
 to render a proper measure of justice. In Elliott v. Brown,^ 
 the jury asked to be instructed as to what amount of dam- 
 ages would carry costs, but the instruction was not given. 
 When the case came before the Supreme Court from the 
 New York Common Pleas where it was tried, Chief Justice 
 Savage said : " It is the duty of the jury to ascertain what 
 damages the plaintiff has sustained, and also how much the 
 defendant ought to be punished ; and if the jury consider 
 the costs as part of the amouut which the defendant should 
 pay, and wish to give no greater damages than barely 
 enough to carry costs, or to give such a sum as will not carry 
 costs, they have a right to do so. I think therefore, it would 
 have been j)roper to have given the jury the information 
 they wanted." In Nolton v. Moses,^ Willard, J., said : " It 
 is common experience, to apprise the jury as to the effect of 
 tbeir verdict upon the parties in respect to the question of 
 costs ; and the practice has been expressly and repeatedly 
 affirmed." And in Waffle v. Dillenbeck,^ the judge refused 
 to instruct the jury, that in arriving at the amount of their 
 verdict, they had nothing to do with the question of costs, 
 but gave them full and minute information, as to what costs 
 a verdict for the plaintiff would carry. 
 
 § 288. In New Hampshire, it has been held that where 
 in an action for assault and battery, several defendants 
 prevail by the proof or disproof of substantially the same 
 facts, the mere circumstance that they have pleaded severally, 
 
 ' Timmons v. Broyles, 47 111. 92. - 2 Wend. 497. 
 
 ° 3 Barb. 31. * 39 Barb. 123.
 
 §289. VERDICT. 201 
 
 will not entitle them as of course, to more than one bill of 
 costs.^ In Massachusetts, a different rule is said to have 
 been established ; ^ but subject to exceptions.'^ In New 
 York, it has been held that where two defendants are sued 
 jointly for assault and battery, and, without any improper 
 motive, have appeared and defended by different attorneys, 
 and each defendant has pleaded separately, upon the acquittal 
 of both, each is entitled to full costs.^ In the same State, 
 in an action for assault and battery against two, a verdict hav- 
 ing been rendered against one of the defendants, and in favor 
 of the other, one perfected judgment against the plaintiff 
 for costs, including the costs of the judgment, and the other 
 defendant made a bill of exceptions, the judgment was 
 allowed to stand on condition that the costs of entering it 
 up should be deducted, though the cause was still pending 
 on the bill of exceptions.^ ^ 
 
 48. Verdict. 
 § 289. When in an action for assault and battery there is 
 
 ' Prescott V. Bartlett, 43 N. Hamp. 298. 
 
 ^ Fales V. Stone, 9 Mete. 316; Davis v. Hastings, 8 Cush. 314; Mason v. 
 Waite, 1 Pick. 458; West v. Brock, 3 Pick. 303. 
 
 = Peabody v. Minot, 24 Pick. 334; Miller v. Lincoln, 6 Gray, 556. 
 
 ' Tenbroeck v, Paige, 6 Hill, 267. 
 
 ' Webb V, Bulger, 4 Hill, 588; ante, § 121. 
 
 * In England, statutes limiting the costs for the purpose of preventing trifling 
 and malicious actions were passed in the reigns of Elizabeth, James First, and 
 Charles Second. The principal statute vpas passed in the reign of Charles 
 Second. It provided that ''In all actions of trespass, assault and battery, and 
 other personal actions, wherein the judge at the trial of the cause, shall not find 
 and certify under his hand, upon the back of the record, that an assault and 
 battery were sufficiently proved by the plaintiff against the defendant, or that 
 the freehold or title of the land mentioned in the plaintiff's declaration was 
 chietiy in question, the plaintitl', in case the jury shall find the damages to be 
 under the value of forty shillings, shall not recover or obtain more costs of suit 
 than the damages so found shall amount unto. In cases of assault and battery 
 and trespass, the certificate of the judge would regulate the costs. In all other 
 personal actions, the verdict alone regulated them. The New York statute was 
 formerly as follows : "If the ])laintiff, in an action for assault and battery or false 
 imprisonment, or for slanderous words or for libel, brought in the Supreme 
 Court, recover fifty dollars or less, such plaintifl" shall recover no more costs than 
 damages." The revisers, in their notes, say that by this provision it was hoped 
 a fruitful source of litigation might be destroyed. The New York Code, § 304, 
 enlarges this class, adding other personal actions, and granting full costs when 
 the plaintiff recovers fifty dollars or over.
 
 262 ASSAULT AND BATTERY. §§ 290, 291. 
 
 a plea of not guilty, the jury are not at liberty to take into 
 consideration the circumstances with the view to reduce the 
 verdict below the amount of damages actually sustained, if 
 those circumstances could have been pleaded.^ Nor will the 
 court enter a verdict for the defendant on the plea of the 
 general issue when he has obtained the verdict on a plea of 
 son assault demesne^ * 
 
 § 290. If the assault and battery be committed in pur- 
 suance of a common intent, or where all are 2)i*esent, aiding, 
 abetting, or encouraging, or have previously counseled the 
 violence, a joint verdict against all is proper.^ To a declara- 
 tion, charging a joint assault, the defendants pleaded jointly 
 not guilty. The judge observing this, and not knowing 
 whether it was intentional or through inadvertence, inquired 
 of the counsel what the plea was, and was informed that it 
 was intended to meet the declaration exactly. The de- 
 fendants then claimed that if the jury found one defendant 
 guilty, and the other not guilty, they should render a verdict 
 accordingly, which was not controverted on the part of the 
 plaintiff. The court, however, chose to treat the case as the 
 defendants had stated their plea treated it, and told the jury 
 that if they found the facts to be proved as stated in the 
 plaintiff's declaration, they must return a verdict against the 
 defendants. It was held that as the declaration alleged a 
 joint assault only, and the plea was expressly intended to 
 meet that allegation, and there was no claim that one could be 
 subjected for an assault by the other unless they acted in 
 concert, the defendants had no ground of complaint against 
 the charge.* 
 
 S 291. If the action be a^rainst two, damao;es cannot be 
 severed, though the assault be proved to have been com- 
 
 ' Watson V. Christie, 3 B. «& P. 324. 
 
 = Mullins V. Scott, 5 Bing. N. C. 423. 
 
 = Southwick V. Ward, 7 Jones' Law, N. C. 64; ante, §§ 23, 212. 
 
 * Brown v. Wheeler, 18 Conn. 199. 
 
 * Wliere under a plea of not guilty and son assault demesne to a charge for 
 assault and battery tliere is a verdict of guilty, the justification is necessarily 
 negatived (Pleasants v. Heard, 15 Ark. 403).
 
 § 292. VERDICT. 263 
 
 mitted by one defendant with more violence and more cir- 
 cumstances of aggravation.^ If one of the defendants beat 
 the plaintiff violently, and the other a little, the real injury 
 is the aggregate inflicted by both, and each is responsible 
 for the whole damage ; but the malice of one defendant can- 
 not be made a ground of aggravation of damage against the 
 other, who was altogether free from any improper motive.^ * 
 
 § 292. A question as to the form of the verdict arose in 
 Mitchell V. Smith,^ which was an action ao-ainst two for a 
 joint assault, in which each defendant separately pleaded the 
 general issue, and also that the plaintiff committed the first 
 assault upon one of the defendants, who w^as the father of 
 the other. The following verdict, notwithstanding its gram- 
 matical errors, w^as held suflScient : " That as to the first issue 
 the defendants are guilty of the premises within charged 
 upon him in manner and form as the plaintiff hath with- 
 in alleged," and " as to the other issue, that defendants, 
 of their own wrong, and without any such cause as they 
 within by pleading hath alleged, assaulted the plaintiff' in 
 manner and form as he hath within alleged." f 
 
 ' Brown V. Allen, 4 Esp. 158. But see Bevin v. Linguard, 1 Brevard, 503; 
 ante, §§ 116, 123. 
 
 ' Clark V. Newsam, 1 Exch. 131. 
 
 = 4 Md. 403. 
 
 * Where an assault and battery has been committed by several, and a re- 
 covery had against one, such recovery will be a bar to an action for the same 
 offense against the rest (Smith v. Singleton, 2 McMullan, 184). 
 
 t In an action for an assault and battery, the jury agreed on a verdict for 
 the plaintiff, and, in ascertaining the amount of damages, each juror marked a 
 sum, and the whole amount was divided by twelve, but the jury did not return 
 the quotient as the amount of damages, but deliberated, and returned a less 
 sum. Held no cause for setting aside the verdict (Cheney v. Holgate, Brayt. 
 171). The rule, that in cases of mayhem the court may increase the damages 
 after ver(\ict .mper visum vulneris, no longer exists (McCoy v. Lemon, 11 Kich. 
 Law, S. C. 165).
 
 CHAPTER II. 
 
 FALSE IMPRISONMENT. 
 
 1. False imprisonment defined. 
 
 2. Arrest bj' private person. 
 
 3. Private person causing arrest. 
 
 4. Arrest and detention under military order. 
 
 5. Arrest by ofRcer without warrant. 
 
 6. Requisites of warrant of arrest. 
 
 7. Duty of officer to communicate substance of warrant. 
 
 8. Liability of officer in the execution of process. 
 
 9. Private person aiding officer in arrest. 
 
 10. What constitutes an arrest. 
 
 11. Detention by officer of party arrested. 
 
 12. Officer's return. 
 
 13. Responsibility of magistrates. 
 
 14. Waiver of right of action. 
 
 15. Nature of the action. 
 
 16. Declaration. 
 
 17. Plea justifying arrest without warrant. 
 
 18. Plea justifying arrest under process. 
 
 19. Replication to plea alleging breach of the peace. 
 
 20. Rejilication to plea justifying under process. 
 
 21. Evidence. 
 
 22. Damages. 
 
 1. False imprmmment defined. 
 
 § 293. False imprisonment consists in restraining another 
 of his liberty without sufficient authority. Every confine- 
 ment of the person is an imprisonment, whether it be in a 
 common prison or in a private House, or in the stocks, or 
 even by forcibly detaining one in the public streets.^ Where 
 a complaint alleged that the defendants illegally, and with- 
 out warrant, arrested the plaintiff, and ])y force compelled 
 her to go to a police station, where they detained and re- 
 strained her of her liberty without reasonable cause, it was 
 held that it stated a case of false imprisonment, and not of 
 malicious prosecution, and that the question of probable 
 cause did not arise.^ But arrest under legal authority does 
 
 ' 3 Blk. Com. 127. 
 
 ' Burns v. Erbeu, 1 Robertson, 555; 26 How. 273; affd. 40 N. Y. 463.
 
 § 294. FALSE IMPKISONMENT DEFINED. 265 
 
 not constitute false imprisonment/ although made by vir- 
 tue of a warrant issued irregularly and from bad motives.^ * 
 
 § 294. The offense may be committed without actual 
 force. It is sufficient that one has been deprived of his 
 liberty through reasonable fear of personal difficulty.'^ A 
 person may be restrained by words ; for he is not obliged to 
 incur the risk of violence and insult by resisting until actual 
 violence be used.^ Therefore, it is false imprisonment to 
 stop and prevent another by means of threats from proceed- 
 ing on the public highway,^ Where a constable commands 
 another to go with him, and he does so, it is constructively 
 an imprisonment, though no actual force be used ; for the 
 party addressed feels that he is wholly in the power of the 
 constable.*^ The plaintiff appeared before the defendant, a 
 magistrate, to answer the complaint of A. for unlawfully 
 killing his dog. The defendant advised the plaintiff to set- 
 tle the matter by paying a sum of money, which the plaint- 
 iff declined. The defendant then said that he would con- 
 vict the plaintiff" in a penalty under the trespass act, in which 
 case he would go to prison. The plaintiff still declined pay- 
 ing, and said he would appeal. The defendant' then called 
 in a constable, and said, " Take this man out and see if they 
 can settle the matter, and if not bring him in again, and I 
 
 ' Coupal V. Ward, 106 Mass. 289. 
 
 ' Johnson v. Maxou, 23 Mich. 139. 
 
 ^ Smith V. State, 7 Humph. 43; Johnson v. Tompkins, 1 Baldw. 571. 
 
 ' 3 Stark. Ev. 1448; Brushaber v. Stegemann, 22 Mich. 206. 
 
 '' Bloomer v. State, 3 Sneed, 60. 
 
 ' 2 Inrft. 589 ; Bull. N. P. 62 ; Bird v. Jones, 7 Q. B. 742 ; 9 Jur. 870. 
 
 * The distinction between false imprisonment and malicious prosecution is 
 that if the imprisonment is under legal process, but tlie action has been com- 
 menced and carried on maliciously, and without probable cause, it is malicious 
 prosecution; but that if it is extrajudicial without legal process, it is false im- 
 prisonment. The former is the subject of an action on the case ; while for the 
 latter trespass vi et armiH is the remedy (Johnstone v. Sutton, 1 T. R. 544 ; Tur- 
 pin V. Remy, 3 Blackf. 210; Colter v. Lower, 35 Ind. 285). In Kansas, under 
 the code, where a party has a cause of action containing all the elements of both 
 malicious prosecution and false imprisonment as understood at common law, he 
 is not bound, as at common law, to bring his suit for one or the other, but may 
 prosecute for his whole cause of action (Bauer v. Clay, 8 Kansas, 580). False 
 imprisonment may include a battery, but the latter is nut necessarily included in 
 the former (1 Stark. Ev. 1113).
 
 206 FALSE IMPRISONMENT. §§ 295, 296. 
 
 must proceed to commit liim under tlie act." The plaintiff 
 then went out with the constable, and settled the matter by 
 paying a sum of money. It was held that this was an as- 
 sault and false imprisonment, for which trespass would lie, 
 and which, as no conviction had been drawn up, the de- 
 fendant could not justify.^ 
 
 § 295. But to constitute an imprisonment there must be 
 an entire restraint of the will. It was accordingly held not 
 enough to show that the defendant, at a police office, stood 
 before the plaintiff, and said, " You cannot go away till the 
 magistrate comes," if it appear that he relinquished that at- 
 titude, and went to another part of the office before the 
 plaintiff had made any attempt to depart.^ And where part 
 of a public footway on a bridge was appropriated for seats 
 to view a regatta, and accordingly separated from the ad- 
 joining carriage road by a temporary fence, and the plaintiff, 
 claiming a right of way across the part so appropriated, 
 climbed over the fence, but was prevented from proceeding 
 by two policemen, who at the same time told him that he 
 might go back if he pleased, which the plaintiff refused to 
 do, and stayed where he was half an hour, it was held that 
 this did not constitute an imprisonment.^ So, likewise, 
 where A. has a chamber adjoining the chamber of B., with a 
 door that opens into it, by which there is a passage for exit, 
 and A. has another door w^hich C. stops so that A. cannot go 
 out by that, there is no imprisonment of A. by C. (although 
 the latter is a trespasser), because A. may go out by the 
 door in the chamber of B.'* 
 
 § 296. One who keeps the key of a room, with knowl- 
 edge that another is imprisoned therein, is a trespasser.^ But 
 a person who places himself in a situation to be restrained 
 of his liberty, cannot complain that he is unlawfully im- 
 
 ' Bridgett V. Coyney, 1 M. & E. 211. 
 
 " Cant V. Parsons, 6 Car. & P. 504. ' Bird v. Jones, supra. 
 
 " Wrigbt V. Wilson, 1 Ld. Raym. 739. 
 
 ' Bro. Abr. Trespass, PL 133, 256, 265.
 
 § 297. ARREST BY PRIVATE PERSON. 267 
 
 prisoned, especially if he refuses to depart wlien lie inay.^ 
 In an action for false imprisonment, in whicL. the plaintiff al-- 
 leged that he, being an officer, went on board of a vessel of which 
 the defendant was master, in order to arrest the steward, and 
 was carried to sea by the defendant, it was argued that the 
 plaintiff being lawfully on board the ship, the carrying of 
 him away was a trespass, although he had not used due dili- 
 gence in getting on shore. But it Avas held that, as the 
 plaintiff went on board for a particular purpose, at the very 
 time when the ship was about to leave the wharf, and as he 
 had, in common with others, repeated notice that her fasts 
 were about to be cast off, and that persons not belonging to 
 the ship, should quit her ; and as it had been proved that 
 the plaintiff was guilty of negligence in regard to it, when 
 he had sufficient time to leave the ship after performing his 
 duty, it followed that no fault attached to the defendant, and 
 he could not be charged as a trespasser.^ * 
 
 2. Arrest hy p7'ivate person. 
 
 § 297. In view of the liability, which we have seen will 
 be incurred by the unauthorized depriving another of his 
 liberty, it becomes important to consider under what circum- 
 stances an individual can lawfully make an arrest. At com- 
 mon law, a private person is permitted, in certain cases, to 
 seize and detain another without warrant.^ All who are 
 present when a felony is committed, or a dangerous wound 
 given, are bound to apprehend the offender ; and a private 
 individual may justify breaking and entering another's 
 house and imprisoning him, to prevent him from committing 
 
 ' Moses V. Dubois, Dudley's S. C. R. 209. 
 
 ' Spoor V. Spooner, 12 Mete. 281. ' Hawk. P. C. 157. 
 
 * In the above case, the plaintifi" contended that the defendant being captain 
 of the ship, was, in law, conclusively liable, in his character as master, for 
 trespasses like the one committed upon the plaintiff. The judge before whom 
 the cause was tried ruled that the presumption of law w^as, that the captain was 
 liable, but that this presumption was subject to be controlled by evidence, and 
 therefore that the question who had actual control of the ship, was a question of 
 fact to be passed upon by the jury.
 
 2G8 FALSE TMPRISONMEJ!TT. § 298. 
 
 murder.^ It is lawful to lay hands upon another to preserve 
 public decorum, as to turn him out of church and prevent 
 him from disturbing the congregation, or a funeral ceremony.^ 
 So, if a person intend a right act, as to assist a drunken man, 
 or prevent him from going along the street without help, and 
 a hurt should ensue, he would not be answerable.^ But it 
 has been held that the continued wilful and malicious ring- 
 ing of a door bell, is not, in itself, a breach of the peace, so 
 as to justify the arrest of a person by a private individual.*"^ 
 
 § 298. In case of an affray, any one may, without a war- 
 rant, restrain the offenders in order to preserve the peace.^ 
 But a private individual who has witnessed an affray, can- 
 not, after the affray has ceased, lawfully give the affrayers, or 
 one or some of them, into custody, unless the affrayers con- 
 tinue on the spot and refuse to disperse, and there is a rea- 
 sonable apprehension of a renewal of the affray. Where, 
 in an action for arresting the plaintiff and detaining him ten 
 hours, the defendant, who was not an officer, pleaded that 
 the plaintiff' was making a great noise, affray, disturbance 
 and riot, in breach of the peace, and because the defendant, 
 being a laborer and lodger in the said house, at the request 
 of the owner of the house, in attempting to keep the peace 
 and stop the noise, was attacked by the plaintiff", he gave the 
 plaintiff" in charge to another man to take him into custody 
 and keep him until he could be carried before a justice of 
 the peace, it was held no justification.^ 
 
 ' Handcock V. Baker, 2 B. «fe P. 260; Colby v. Jackson, 12 N. Hamp. 526. 
 
 = Glever v. Hynde, 1 Mod. 168; Hall v. Planner, 1 Lev. 196. 
 
 = Bull. N. P. 16. 
 
 " Grant v. Moser. o M. & G. 123. 
 
 ' 2 Inst. 52; Burns' Justice, 92; Hawkins' P. C. 174, b. 2 s. 20; Timothy v. 
 Simpson, 1 C. M. & R. 757; Price v. Seelev, 10 CI. «&rin. 39; Byrnes v. Brewster, 
 2 Q. B. 355. 
 
 " Phillips V. Trull, 11 Johns. 486. 
 
 * The law supposes the principal to be in the custody of his bail; and the 
 bail may take him when he pleases, and detain or surrender him into the custody 
 of the sheriff (Anon, 6 IMod. 231; ex parte Gibbons, 1 Atk. 238; Anon. 2 Show. 
 214; Parker v. Bidwell, 3 Conn. 84). This he may do personally, or by an 
 authorized agent (Meddowscroft v. Sutton. 1 Bos. &Pull. 61 ; Fisher v. Fellows, 
 5 Esp. 171 ; KicoUs v. Ingersoll, 7 Johns. 145).
 
 §§ 299, 300. ARREST BY PRIVATE PERSON. 26& 
 
 § 299. When a person is so insane as to be dangerous to 
 the community, any one may arrest and detain him for a 
 reasonable time until proper legal proceedings can be had to 
 confine him ; the restraint being demanded both for the 
 safety of the lunatic, and for the preservation of the public 
 peace.^ But as the right to exercise restraint in such cases 
 has its foundation in a reasonable necessity, it ceases with 
 the necessity.^ In Coll^y v. Jackson,^ the following instruc- 
 tion was held correct : That the burden was upon the de- 
 fendant to prove that the plaintiif was insane, and that it was 
 dangerous for him to be at large ; that if this was the case, the 
 defendant might confine him until application could be made 
 to the proper authority, and until a guardian was appointed ; 
 that such an application must be made in a reasonaljle time ; 
 that the defendant had no right to confine the plaintiff for 
 an indefinite period, without making application for, and pro- 
 curing the appointment of a guardian, even if he was dan- 
 gerous ; but that if he was dangerous when confined, and 
 was restored to reason before the defendant could take 
 measures to have a guardian appointed, the defendant would 
 not be liable." 
 
 § 300. A private person may justify the apprehension of 
 another for felony without warrant, upon a case of strong 
 suspicion, if in fact such a felony was committed, and there 
 is probable ground to suspect that the person arrested com- 
 mitted it ; ^ and the burden of proving that a felony had 
 actually been committed, and the facts relied upon to estab- 
 lish probable cause or reasonable ground for suspicion is 
 
 ' Bro, Abr. Imprisonment \ Davis v. Merrill, 47 N. Hamp. 208. 
 " Look V. Dean, 108 Mass. 116. ' Supra. 
 
 * Rcuck V. McGregor, 3 Vroom, 70 ; i:>ost, § 310. 
 
 * The report of the commissioners on lunacy in England, made in 1849 — a 
 board of eminent men, at the head of whom stood Lord Ashley, a learned jurist 
 — closes with the statement that a rule had been recently adopted, in many of 
 the large asylums in England, which proved satisfactory to the friends of the 
 insane and the public, tiiat no person could be admitted into any lunatic asylum 
 without a certificate of his insanity signed by two physicians within seven days 
 previous to his admission, stating also the facts on which their opinion was 
 founded.
 
 270 FALSE IMPRISONMENT. § 300. 
 
 upon tlie defendant.^ Sir Edward Coke says : " K treason 
 or felony be done, and one hatli just cause of suspicion, this 
 is a good cause and warrant in law for liim to arrest any 
 man ; but he must show in certainty the cause of his sus- 
 picion, and whether the suspicion shall be just or lawful 
 shall be determined by the justices in an action for false im- 
 prisonment brought by the party grieved, or upon a habeas 
 corpusP ^ In Allen v. Wright,^ the justification of an arrest 
 by a private person was made to depend, first, on the fact 
 that a felony had actually been committed ; and, second, that 
 the circumstances were such that a reasonable person, acting 
 without passion and prejudice, would have fairly suspected 
 the plaintiff of being the person who did it. And in Holley 
 V. Mix,^ the foregoing principles were distinctly afiS.rmed. 
 In genei'al, the felony which will justify an arrest by a pri- 
 vate person, under the circumstances above stated, must be 
 an offense that may be tried by the courts of the State in 
 which the arrest is made. If it be committed in a foreio-u 
 
 o 
 
 State, and be triable there only, it will not justify such arrest. 
 There may be a single exception to this rule in the case of 
 the arrest of a person charged with the commission of a felony 
 in a foreign State or country for the purpose of detaining 
 him to await a requisition upon the governor of the State in 
 which the arrest is made for his extradition, when such 
 arrest is necessary to prevent his escape.^ But the arrest of 
 a person by a private individual without warrant, made for 
 the purpose of forcibly aljducting the arrested person from 
 the State, followed immediately by such abduction, would 
 constitute a criminal offense of a high grade at common law.^ * 
 
 'Samuel v. Pavne, Doug. 359; Hall v. Booth, 3 Nev. »fe Man. 31G; Hale's 
 PI. Cr. 73; 1 Chit. Cr. L. 15; Hobbs v. Branscomb. 3 Camp. 420; West v. Bax- 
 endale, 9 Com. Bench R. 141; Burns v. Erben, 40 N. Y. 403; Brown v. Chad- 
 sey, 39 Barb. 253. 
 
 ' Coke, 2 Inst. 52. And see Davis v. Russell, 5 Bing. 354 ; 2 M. & P. 590. 
 
 ' 8 Car. & P. 522. ■* 3 Wend. 350. 
 
 ^ Mandeville v. Guernsey, 51 Barb. 99; post, § 327. ' Ibid. 
 
 * Punishable in New York by imprisonment in a State prison not exceeding 
 ten years (Rev. Sts. of N. Y. 5th ed. v. 3, p. 943, § 30). Where the sheriff of 
 Tioga County, Pennsylvania, under a bench warrant issued to him as such sheriff,
 
 §§ 301, 302. PRIVATE PERSON CAUSING ARREST. 271 
 
 3. Private person causing arrest. 
 
 § 301. One who maliciously causes an illegal arrest, is 
 liable for false imprisonment/ though not present when the 
 arrest is made.^ * Liability for an unlawful arrest has even 
 been extended to a case where the defendant in causing the 
 arrest acted under duress. In Kentucky, in an action for caus- 
 ing the arrest and imprisonment of the plaintiff, it was held 
 that the circumstance, that certain statements made by the 
 defendant, which occasioned the arrest of the plaintiff, were 
 made under military compulsion, was no justification, if the 
 defendant knew that the statements were false, and meant 
 thereby to effect the arrest of the plaintiff.^ 
 
 § 302. Although the making of an affidavit, upon which 
 the plaintiff was unlawfully arrested, will not render the 
 defendant liable, if he made it without knowing or having 
 any intention, that it should be so used ; yet, if the im- 
 prisonment be the necessary or probable consequence of 
 orders given by the defendant, he will be liable therefor^ 
 although he did not directly order it, or contemplate the 
 possibility of its occurrence.^ Where therefore, in an action 
 
 upon an indictment found in that county, arrested a person in the State of New 
 York and carried him beyond its boundaries, it was held that, in respect to those 
 acts, he was to be treated as a private person acting without legal process (Man- 
 deville v. Guernsey, supra). 
 
 There are some cases in wliich the existence of reasonable ground of sus- 
 picion is spoken of as a defense in actions for false imprisonment. It will, how- 
 ever be found that these cases turn upou the authority given to magistrates in 
 particular instances to arrest upon suspicion merely, and in which, therefore, a 
 reasonable suspicion is a sufficient authority and justification for an arrest; or 
 else they are cases in which the actual commission of a felony was first proved, 
 and the case turned upon the ground for suspecting the person arrested. 
 
 '^Maher v. Ashmead, 30 Peun. St. R. 344; Baird v. Householder, 33 lb. 168; 
 Sullivan v. Jones, 2 Gray, 570. 
 
 ^ Clifton V. Grayson, 2 Stew. 413; Cole v. Radcliff, 4 W. Va. 333. 
 
 = Huggins V. Toler, 1 Bush, Ky. 193. " Roth v. Smith, 41 111. 314. 
 
 * A landlord charged his tenant with taking and carrying away some oat 
 straw, on which charge a criminal warrant was issued, and the tenant arrested 
 and bound over for trial. It was held that the proper remedy of the tenant was 
 trespass, and not case (Baird v. Householder, 32 Penu. St. R. 168). 
 
 A person wlio, during the late civil war, joined a gang of rebel scouts that 
 was taking to prison a loyal man unlawfully arrested, encouraged their acts, and 
 abased him, was held guilty of false imprisonment (Ruffner v. Williams, 3 W. 
 Va. 243).
 
 272 FALSE IMPEISONMENT. § 303. 
 
 for assault and false imprisonment, it appeared that the 
 defendant was Lieutenant Governor of the Fortress of Gib- 
 raltar, and wishing to obtain possession of General Torrijos, a 
 Spanish refugee, whom he thought was harbored in the house 
 of the plaintiif, an English merchant residing at Gibraltar, he 
 placed a part of the military force of the garrison under the 
 command of his military secretary, who ordered them to sur- 
 round the plaintiff's house, and in the course of their duty 
 one of the soldiers prevented the plaintiffs egress ; it was 
 held that there w^as sufficient evidence to go to the jury that 
 the various proceedings were under the direction and carried 
 on by the authority of the commandant of the garrison ; that 
 the soldiers being directed to search for General Torrijos, 
 w^hose person they did not know, the governor's military sec- 
 retary in command of them was only carrying out his orders 
 in directing them to prevent all persons from leaving the 
 house ; and that the governor's general orders made him lia- 
 ble for this particular act. ^ 
 
 § 303. An action for false imprisonment will lie when a 
 ^varrant of arrest has been issued uj)on an insufficient affida- 
 vit. ^ Accordingly, where in an action for an unlawful arrest, 
 it appeared that the defendant having commenced an action 
 of tort against the plaintiff, caused him to be arrested and 
 committed to jail, without having previously made the affida- 
 vit required l>y the statute ; it was held that the present 
 action would well lie, the illegality of the arrest not depend- 
 ing upon the question whether the suit was malicious and 
 without probable cause, but upon the want of the required 
 preliminary oath that the cause of action was just and true. '^ 
 A notable example of the rule under consideration is fur- 
 
 ' Glynn v. Houston, 2 M. & G. 337 ; 2 Scott X. R. 548. 
 
 ^ Vredeuburgli v. Hendricks, 17 Barb. 179; Collanier v. Elmore, cited by 
 Willard, J., in Mosher v. The People, o Barb. 575. And see Prosser v. Secor, 5 
 Barb. 607; Moore v. Watts, Breese, 18. 
 
 ^ Cody V. Adams, 7 Grav, 59; St. of Mass. of 1852, cb. 312. and of 1854, 
 cb. 68.
 
 § 304. PRIVATE PERSON CAUSING ARREST. 273 
 
 nisbed in Smith v. Boucliier. ^ In that case the vice-chancellor 
 of the University of Oxford, the judge and jailer were also 
 defendants. The question arose upon a custom that a 
 plaintiff making oath that he has a personal action against 
 any person within the pi'ecincts of the university, and that 
 he believes the defendant will not appear, but run away, the 
 judge may award a warrant to arrest him and detain him 
 until security is given for answering the complaint. On the 
 7th of August, 1731, the defejidant Bouchier, having the 
 privilege of the university, made a complaint to the defend- 
 ant Shippen, the vice-chancellor, of a personal action against 
 the plaintiff, to his damage £1,000, according to his estima 
 tion, and that he suspected that the plaintiff would run away ; 
 which being sworn to, a warrant was granted to the other 
 defendants, who arrested the plaintiff and kept him in prison 
 eight days for want of sureties. It will be observed that in 
 the foregoing case, the requisite was, that the plaintiff should 
 swear his hdiefthsit the defendant would run away ; whereas, 
 the oath was, that he susjjected. The court held that it was 
 necessary to give jurisdiction, that he should swear to his 
 helief ; and because he did not, all that was done was coram 
 non judice and void. The vice-chancellor, judge, officer and 
 party, were therefore all held liable for trespass and false 
 imprisonment. 
 
 § 304. The party against whose body a writ has been 
 issued, has a right to know, on application to the magistrate 
 who issued it, whether an affidavit has been duly filed, and 
 if so, an opportunity to ascertain whether it is sufficient to 
 justify the arrest. In Whitcomb v. Cook,^ which was an 
 action for false imprisonment, it appeared that the ])laiutiff 
 was arrested and imprisoned upon a writ in favor of the de- 
 fendant against him, issued by a justice of the peace. The 
 only question in the case, was whether an affidavit had been 
 
 ' 2 Stra. 993. Referred to by Reeve, Ch. J., in Grumon v. Raymond, 1 
 Conn. 40. 
 
 " 39 Vt. 585. And see Parklmrst v, Pearsons, 30 Vt. 705; Phillips v. Wood,, 
 81 lb. 322. 
 
 Vol. I.— 18
 
 274 ' FALSE IMPRISONMENT. § 305. 
 
 filed wltli tlic magistrate issuing tlie writ, according to the 
 requirements of the statute. It appeared that the defendant 
 went to his attorney to get a writ against the body of the 
 plaintiff; that the attorney had a Hank justice's writ that 
 had been signed by the niagistrate, which he had filled out 
 in proi)er form, and had also made the necessary affidavit, 
 which Avas signed and sworn to by the defendant; that they 
 then went to the office of the magistrate to file the affidavit; 
 that finding the office locked, and the magistrate absent, the 
 attorney slipped the affidavit under the door of the office. It 
 further appeared that when the affidavit was so put under 
 the office door of the magistrate, he was absent from the 
 county, and had been for several days, and did not return 
 until a day or two thereafter, when he found the affidavit on 
 the floor of his oflice, which was the first knowledge he had 
 of it, or of the issuing of the writ. The county court before 
 which the cause was tried, charged the jury that the deposit- 
 ing of the affidavit in the magistrate's office in the manner 
 and under the circumstances above stated, was not such a 
 filing of it as was required by the statute, or as would justify 
 the plaintiff's arrest; and a verdict having been found for 
 the plaintiff, it was sustained. 
 
 § 305. The causing another to be arrested on void proc- 
 ess is false imprisonment.^ And the same is true where, 
 although the process is valid, the wrong person is caused to 
 be arrested under it. To an action for false imprisonment 
 the defendant pleaded a justification under the county court 
 act ; ^ that the defendant had caused to be entered in the 
 said court a plaint against the now plaintiff, and had sued 
 out a summons against the now plaintiff, whereupon judg- 
 ment was given for the now defendant, and that afterward 
 the defendant had sued out another summons against the 
 now plaintiff, and that subsequently an order was made that 
 
 ' Ludclington v. Peck, 2 Conn. 700; Alleu v. Greenlee, 2 Dcv. o70; Price v. 
 Graham, 3 Jones L, N. C. 545. 
 ^ 9 & 10 Victi c. 95.
 
 § 300. PRIVATE PERSON CAUSING ARREST. 275 
 
 the now plaintiff should be committed, &c. The evidence 
 was, that the defendant having a debt due from A., made a 
 plaint in the county court against A. by name, and having 
 sued out a summons against A. by name, procured an order 
 for the committal of A. by name, and that all of these differ- 
 ent writs and orders were served upon tlie plaintiff, and the 
 plaintiff was eventually taken and imprisoned by direction of 
 the defendant under the supposition that lie was A., and that 
 the plaintiff, who took no notice of the process served upon 
 him, never represented himself as A. It was held that the 
 plea w^as not supported by the evidence and that the de- 
 fendant was liable.^ 
 
 § 306. Where a party lays a complaint before a magis- 
 trate on a subject-matter over which the latter has a general 
 jurisdiction, and a warrant is issued upon which the party 
 charged is arrested, the person who made the complaint is 
 not liable as a trespasser, although the particular case be one 
 in which the magistrate had no authority to act.'^ ^' It is for 
 
 ' Walley v. M'Connell, 14 Jur. 193; 19 L. J. Q. B. 162; s. p. Aaron v. Alex- 
 ander. 3 Camp. 35. 
 
 '' Brown v. Chapman, 6 C. B. 3Go ; West v. Sraallwood, 3 Mees. & W. 418; G 
 Dowl. P. C. 580. 
 
 * Tliere is a class of cases in wliich officers having a peculiar and limited 
 jurisdiction to issue process of a special nature in certain cases, having arrested 
 individuals by such process in cases not within such authority or jurisdiction, 
 both the officers and the parties obtaining the process have been held liai>le for 
 false imprisonment. Thus, in Curry v. Pringle, 11 Jolms. 444, the defendant 
 procured from a justice a warrant instead of a summons, without any oath of the 
 facts which would authorize the justice to issue a warrant, and when the plaintiff 
 was not liable to arrest under the statute. So in Bissell v. Gold, 1 Wend. 210, 
 and PtOgers v. Mulliuer, 6 lb. 597. But these were instances where the jurisdic- 
 tion of tlie officer to issue such a process was special, and confined to cases wdiich 
 were brought within tlie statute creating it, and where no steps being taken to 
 give or to show such a jurisdiction, the proceedings were without any authority 
 or color of justification. Vandenburgh v. Hendricks, 17 Barb. 179, was a case of 
 a similar nature against a defendant who had taken out a warrant under the non- 
 imprisonment or fraudulent deljtor act upon an affidavit which was insufficient 
 to give the officer jurisdiction or authority to act. These cases are distinguisha- 
 Ijje from Von Latham v. Libby, supm^ because in the latter the magistrate had a 
 general jurisdiction of the sul)ject-matter, to wit, arrests of persons charged with 
 crimes, and of the person of the accused. Where a person brings an action 
 before a justice of the peace on which the defendant is arrested and held to bail, 
 tlie plaintifl'is not liable in trespass for an assault and battery and false im[)rison- 
 ment. because owing to tlie absence of the justice at the return day the writ was 
 not entered (Shaw v. Reed, KJ Mass. 450). By the court: " Trespass does not 
 lie in this case, for the writ being good at the time it was served, the arrest was
 
 27G FALSE IMPRISONMENT. § 300. 
 
 the magistrate to determine whether sufficient grounds exist 
 in law and fact to arrest a person charged by another with a 
 criminal offense,' and the party who has merely stated the 
 case to the magistrate obviously cannot be a ti'espasser, al- 
 though the arrest be wholly unjustifiable.^ "' The plaintiff 
 voluntarily went before a police magistrate to meet a charge 
 of embezzlement whicli w^as there about to be made against 
 him by the defendant. The magistrate declining to entertain 
 the matter unless a charge was formally made, the defendant 
 said : " Well, then, I charge him with embezzling 30s." The 
 plaintiff was then ordered by one of the constables in attend- 
 ance to go into the dock, the cliarge was gone into, and the 
 plaintiff he]d to bail. It was held that the act of the de- 
 fendant amounted to no more tlian calling upon the magis- 
 trate to exercise his jurisdiction, and consequently that he 
 was not liable for the imprisonment of the plaintiff.^ So 
 
 not tortious. The justice had jurisdiction of the cause, and it was only by reason 
 of an event subsequent to the ser\'ice of the writ that it became inoperative. 
 The plaintiff's remedy is by an action of the case apraiust the defendant, if the 
 justice's absence arose from his negligence, or against the justice, if he was noti- 
 tied of the process, and voluntarily or negligently absented himself.'' 
 
 ' Von Latham v. Libby, 38 Barb. 339. See j^ost, § 334. 
 
 - Brown v. Chapman, 8 C. B. 365; 12 Jur. 799; 17 L. J. 329. 
 
 * In this case, the facts were as follows: Libl)y was the owner of a house and 
 lot in Brooklyn, and Rowan his agent. Rowan made an affidavit before a police 
 magistrate that the plaintiff had unlawfully intruded into and taken possession 
 of the house owned by Libby without his authority. Upon this affidavit the 
 magistrate issued a warrant reciting the charge and commanding the arrest of 
 the plaintiff to answer it as a violation of the statute in such case. Tlie plaintiff 
 was arrested, pleaded to the charge, and was suffered to go upon his own prom- 
 ise to appear, Rowan appearing against liim. The case was adjourned three 
 times, and upon the last hearing. Rowan not appearing, the complaint was dis- 
 missed and the plaintiff discharged. The statute under which tlie proceedings 
 against the plaintiff were taken provided, among other things, that any person 
 who should thereafter intrude ujoon any lot or piece of laud situate within the 
 bounds of any incorporated city or village without the consent of the owner 
 should be deemed guilty of a misdemeanor. It was not denied that the magis- 
 trate to whom the complaint was made had general criminal jurisdiction to issue 
 process for the arrest of persons charged witli any crime or misdemeanor of 
 whatever degree; nor that he had jurisdiction to try and to convict the plaintiff", 
 if he were guilty, of an offense under the foregoing statute. The ground upon 
 which the defendant's complaint was dismissed was, that the plaintiff was charged 
 witli intruding into a house and not upon a lot of land, and that Libby w-as not 
 stated in the complaint or warrant to be the owner of anj' lot or piece of land. 
 It was therefore contended that neitiier the atBdavit nor the warrant showed the 
 commission of any offense by tlie plaintiff, and for that reason, at the trial in the 
 city court of Brooklyn, the defendants were held liable for false imprisonment 
 in the plaintiff's arrest. The Supreme Court, however, set the verdict aside.
 
 § 307. PRIVATE PERSON CAUSING ARREST. 277 
 
 likewise, where it appeared that the plaintiff was given into 
 custody by the defendant on a charge of stealing, and was 
 taken before a magistrate, who, after hearing the evidence 
 of the defendant in support of the charge, remanded him, it 
 was held, that the remand being the act of the magistrate 
 the defendant was only liable in damages for the trespass 
 and imprisonment in taking the plaintiff before the magis- 
 trate.^ In another case, the defendant gave information 
 before a magistrate, upon which the plaintiff was taken up 
 on a warrant. After the charge was dismissed for the time, 
 and the plaintiff liberated on his promise to appear at a future' 
 day. the defendant stated that he had another charge of for- 
 gery against the plaintiff', who was retiring, but was again 
 put to the bar. It was held that trespass would not lie.^ * 
 
 § 307, In the case of an arrest upon valid process issued 
 by a competent tribunal having jurisdiction, there is no tres- 
 pass, and false imprisonment will not lie, even though such 
 arrest be maliciously procured by the prosecutor without 
 probable cause, ^f But if a person be arrested on process 
 which is afterward vacated or superseded, he may maintain 
 trespass, although the party causing the arrest was not actu- 
 ated by any malicious or unjust motives; because the process 
 itself has become a nullity, and the arrest therefore unauthor- 
 ized,^ The general rule is, that false imprisonment lies for 
 arrest under process irregularly issued, but not for arrest 
 under process erroneously issued. It seems, however, that 
 the irregularity must have been apparent upon the face of 
 
 ' Lock V, Ashton. 13 Jur. 167; IS L. ,T. Q. B. 76. 
 
 ' Barber v. Rollinson, 1 C. & M. 330. 
 
 ' Sleight V. Ogle, 4 E. D. Smith, 445 ; Burns v. Erben, 1 Robertson, 555 ; 
 s. c. 40 N. Y. 46:j. 
 
 * Hayden v. Shed, 11 Mass. 500. 
 
 •^ But the rule is strict that in a court of special and limited jurisdiction the 
 party becomes n trespasser who extends the power of the court to a case to which 
 it cannot lawfully be extended (Curry v. Pringle, 11 Johns. 444). 
 
 t If one knowing that he has no cause of action or complaint, cause another 
 to be arrested, the latter may maintain an action upon the case for this injury, 
 although the whole proceedings are perfectly regular and Jegal in point of form. 
 Bui he could not, in such a case, maintain trespass.
 
 278 FALSE IMPRISONMENT. § 308. 
 
 the process itself, or upon inspection of tLe record,^*'" There 
 is an important distinction between erroneous process and 
 irregular process. The first, is the act of the court ; and even 
 after it has Leen set aside or reversed, whatever was done 
 under it while in force, may be justified. But irregular proc- 
 ess is the act of the prosecutor, and when once set aside, is 
 considered as having been a nullity from the beginning, and 
 forms no justification to him for anything done under it. In 
 some cases, irregularity of process is waived by the party 
 complaining of it. In other cases, irregularity renders the 
 process void and cannot be waived ; as when a writ has been 
 issued on Sunday, or the irregularity consists in a departure 
 from a rule of law founded on public policy. In some in- 
 stances process is, on the face of it, to all intents and pur- 
 poses, a nullity, as where it issues in a case plainly out of the 
 jurisdiction of the court or magistrate issuing it. But the 
 validity of the process of a court, unless it appear upon the 
 face of it to be an absolute nullity, cannot be called in ques- 
 tion collaterally, until it has been vacated or set aside by the 
 court, or abandoned absolutely by the party w^ho sued it 
 out. '^ f 
 
 § 308. A person who sues out and delivers to an officer 
 valid process, is not responsible for the irregularity of the 
 ofiicer in executing the same, unless it appear affirmatively 
 that the officer acted under his orders when he committed the 
 trespass. In Adams v. Freeman,^ the plaintifi:* was attached 
 and imprisoned under the statute for refusing or neglecting 
 
 ' Reynolds v. Corp, 3 Caines, 207. 
 
 ^ Blanchard v. Goss, 2 N. Hamp. 491, and cases cited. 
 
 3 9 Johns. 117. 
 
 * In Reynolds v. Corp, supra, the question arose whether an action of tres- 
 pass would lie where the judgment debtor had been discliarged from custody by 
 supersedeas, for want of being charged in execution in due time; and if it would, 
 then whether the plaintiff could sue so long as the award of the execution re- 
 mained good, and had never been set aside for irreg"larity. The court below 
 having held the affirmative, the Supreme Court set tlie verdict aside. 
 
 t Where a complaint for crime is dismissed by the m:igistrate in consequence 
 of the complainant not r.ppeariug to prosecute at the time to which the case is 
 adjourned, this is a sufficient termination of the prosecution for the purposes of 
 an action for false impriEonmcut (Fay v. O'Neill, o6 N. Y. R. 11).
 
 § 309. PRIVATE PERSON CAUSING ARREST. 279 
 
 to perform an award; the statute making the party in such 
 case, "Subject to all the penalties of contemning a rule of 
 court." The irregularity complained of by the plaintiff was 
 that he was arrested on the attachment on the 31st of May, 
 being after the return day. The attachment was returnable 
 on the 29th of May, and on that day the defendant averred 
 that he delivered the process to the sheriff. It was lawful 
 for the sheriff to arrest the defendant on the return day, and 
 the defendant gave no direction to have him arrested after- 
 wards. It did not appear that the defendant knew at the 
 time the plaintiff was detained a prisoner that he had been 
 arrested after the retnrn day. The court, in directing judg- 
 ment to be entered for the defendant, remarked that the tres- 
 pass, if any, was committed by the sheriff, and not by the 
 defendant. 
 
 § 309. With reference to. the liability of a married wo- 
 man, it may be stated that coercion of the wife, which is sup- 
 posed to exist in all cases of tort committed in the presence 
 or by direction of the husband, is but a presumption of law, 
 and like all other ^^resumptions, may be repelled by j^roof. 
 Where in an action against a husband and wife, for the wife's 
 maliciously procuring the arrest and imprisonment of the 
 plaintiff, an apj^eal having been taken by the defendants 
 from a judgment rendered against them on the report of a 
 referee, it was held that as the testimony appeared to have 
 been sufficient to have justified the referee in concluding that 
 the wrongful act of the wife was voluntary on her part, and 
 Avas her individual act, and although in some respects done 
 in the presence and company of her husband, yet not done 
 by his command or coercion, it must be assumed that the 
 referee found as matter of fact, from the evidence, that the 
 legal presumption of coercion of the wife, had been repelled 
 by proof. ^ "* 
 
 ' Cassin v. Delaney, 1 Daly, 224. 
 
 * The judgment in this case was, however, reversed by the Court of Appeuls, 
 on the ground that testimony offered by the defendants to show tliat tiie acts 
 charged were done by the direction of the husbaud, was exchided (38 N. Y. 178).
 
 280 FALSE IMPRISONMENT. § 310. 
 
 § 310. Where, in an action for causing the plaintiffs ar- 
 rest without process, it appears that a felony having been com- 
 mitted, the defendant did not adopt the usual and more pru- 
 dent course of having an investigation by a magistrate, it is 
 incumbent on him to make out to the entire satisfaction of 
 the jury not only that a felony has been committed, but that 
 the circumstances of the case were such that a reasonable 
 person, acting without passion or prejudice, w^ould fairly have 
 suspected the plaintiff of being the one who had committed 
 it.-' * In an action for false imprisonment the defendant 
 pleaded that his goods had been stolen, and that, having 
 cause to suspect the plaintiff of the felony, he gave her into 
 custody. The plea stated several grounds of suspicion. 
 The plaintiff called in a policeman to prove that the de- 
 fendant directed him to take the plaintiff' into custody. 
 The policeman, in his cross examination, said that at the 
 same time and in the presence of the plaintiff, the defendant 
 stated that the goods had been stolen, and also stated some 
 ot the grounds of suspicion mentioned in the plea. It was 
 held that this was evidence for the jury to consider, and 
 from which they might find that the felony had been com- 
 mitted, and that the defendant had good cause to sus})ect the 
 plaintiff if this evidence satisfied them that the facts were 
 i-eally so.~ f In a case in New York, it appeared that in pur- 
 
 ' Allen V. Wright, 8 Car. & P. 522; ante, § 300. 
 
 ' Williams v. Crosswell, 3 Car. & K. 422. 
 
 * Allen V. Wright, svpra, was an action for false imprisonment in which the 
 defendant justified on the ground that the plaintifl" had been his lodger, and 
 .after she had left lier apartments, he discovered that some feathers were missing 
 from a bed which she had occupied, and he suspecting her to be the person that 
 had stolen them, caused her to be arrested. It appeared that the defendant took 
 a policeman to the new lodging of the plaintifl", a few days after she had left his 
 house, and had her arrested and taken to the station house, and that the next 
 day she was examined before the magistrate and discharged. A verdict was 
 found for the plaintiff. 
 
 t It was held in Williams v. Crosswell, supra, that although the plea ought 
 to set out the defendant's grounds of suspicion, yet that he would be entitled to 
 a verdict without proof of the whole of them, if he proved that a felony was in 
 fact committed, and established so much of the grounds of suspicicm as satisfied 
 the jury that he had reasonable cause to suspect the plaintiff. 
 
 Where the defendant caused the plaintiff to be arrested for stealing fat, and 
 there was no legal evidence of the charge, but the defendant honestly believed
 
 § 311. PRIVATE PERSON CAUSING ARREST. 281 
 
 suance of information given by the defendant, a police officer, 
 accompanied by the defendant, arrested the pLxiutiff without 
 warrant, took her to the police station, where she was de- 
 tained a few minutes, and after some conversation w^ith the 
 officer in charge, she was permitted to return to her residence. 
 A felony had been committed that evening at the house of 
 the defendant's father. The plaintiff had visited the house 
 that evening, and according to the information on which the 
 defendant acted, was the only person not a member of the 
 family who had been in the basement. Silver had been 
 stolen from the basement. It was there when the plaintiff 
 entered, and until after eight o'clock ; and it was missed very 
 shortly after she left the house. The inquiry in the case was 
 whether within the rule with respect to arrests made or aided 
 by private persons, the plaintiff was entitled to recover. It 
 was held that she was not ; but that as a felony had in fact 
 been committed, the circumstances justified the suspicion 
 which led to lier arrest. ^ The defendant is answerable for 
 all of the ordinary acts of precaution on the part of the po- 
 liceman to whom he has given the plaintiff in custody, on a 
 charge of felony, though more severity may have been em- 
 ployed than the occasion required.^ 
 
 § 311. If the act of the party whose arrest has been 
 caused, be not punishable criminally, nor likely to occasion a 
 breach of the peace, the person giving him in custody will be 
 liable. Where, therefore, in an action for false imprisonment, 
 it appeared that the plaintiff' was supplied with certain arti- 
 cles of food at the defendan1>'s eating saloon, and received a 
 check indicating the amount to be paid at the bar, which 
 check, it was alleged, he kept, and substituted in its place 
 one which he had in his possession for a much smaller 
 amount, which was taken as the true voucher, and the 
 amount of which only he paid, it was held that however 
 
 that his fat had been stolen, and that tlie pUiiutiff had stolen it, and there was 
 reasonable ground for his belief, it was held that the grounds of suspicion were 
 admissible in mitigation of damages (Chinu v. Morris, 2 C. & P. 3G1). 
 
 ' Burns v. Erben, 40 N. Y. 403. = Edgiil v. Francis, 4 Jur. 3G5.
 
 282 FALSE IMPRISONMENT. § 312. 
 
 reprehensible or contemptible such an act might have been, 
 it was not one for which he could be punished criminally, 
 nor was its immediate tendency to provoke a breach of the 
 peace ; and that as the defendant directed a police officer to 
 take the plaintiff into custody, and he was arrested without 
 warrant, the defendant, as a party assisting therein, was 
 lial)le. ^ So likewise, j)roof of annoyance and disturba^nce by 
 a person present at a meeting, such as crying " Hear, hear," 
 putting questions to a speaker, and making observations on 
 his statement, will not justify the chairman of the meeting 
 in giving such person in charge to the police. In order to 
 justify such a course, it must be shown that what was done 
 amounted to a breach of the peace, ^* 
 
 § 312. If a person tell a policeman to take charge of 
 another, it is the same as his telling the policeman to take 
 the other into custody, and is sufficient to support an action 
 for false imprisonment.^ But a private person incurs no 
 liability l)y merely communicating facts or circumstances of 
 suspicion to an officer, leaving him to act on his own judg- 
 ment and responsibility.* Accordingly, where in an action 
 for false imprisonment, it appeared that a felony having been 
 committed in the house of the defendant, he sent for the 
 police, complained of the robbery, and stated various cir- 
 cumstances of sus2:)icion which had come to his knowledge, 
 and the policeman having investigated those circumstances, 
 on his o\vn authority arrested the plaintiff and took him to 
 a police station, and at the same time requested the defend- 
 
 ' Boyleston v. Kerr, 2 Daly, 220. " Wooding v. Oxley, 9 Car. & P. 1. 
 
 ' Wheeler v. Whiting, 9 Car. & P. 262. 
 
 * Brown v. Chadsey, 39 Barb. 253. 
 
 * The plaintiff having brought trespass for being taken into custody upon a 
 charge of doing malicious damage to a house of which he himself was tenant, by 
 order of the defendant, who was the attorney to the mortgagee of the house, and 
 the objection taken that no notice of action had l)een given pursuant to the 
 statute, the judge asked the jury whether the defendant acted bona fide or only 
 colorably in giving the jDlaintiff into charge. Held a misdirection, as the jury 
 ougl)t to have been asked whether the defendant was servant of, or had author- 
 ity from the mortgagee to do the act complained of, or reasonably believed him- 
 self to be in either of those positions (Kine v. Evershed, 11 Jur. UT3 ; 10 L. .J. 271).
 
 § 313. PRIVATE PERSON CAUSING ARREST. 283 
 
 ant to come to the station and sign the charge sheet, which 
 be did, accusing the plaintiti' of the felony ; it was held that 
 as charging a person with an offense was a dififerent thing 
 from giving him into custody, the defendant was not liable. 
 The arrest and detention of the plaintiff were the acts of the 
 j)olice officer ; and the defendant did nothing more than he 
 was under the circumstances bound to do, viz:, sign the 
 charge sheet. He might have been liable if he had acted 
 mala fde^ but not otherwise.^ If, however, the defendant 
 had given the plaintiff in charge, or directed the policeman 
 to take him into custody, he would have been answerable in 
 damages for the imprisonment ; and the signing of the charge 
 sheet would have hQe:n prima facie evidence that the defend' 
 ant ordered and directed the arrest.^ 
 
 § 313. A person is not liable for false imprisonment who, 
 seeing a man in custody of an officer for a supposed offense, 
 points out another as the real criminal, without directing the 
 officer to take that one into custody.'^ ''^ It is however other- 
 wise, if he cause the arrest of an innocent party by volun- 
 tarily giving information which he supposed at the time to 
 be true, but which turns out to be false. In an action for 
 false imprisonment, it appeared that the defendant had seen 
 two young men steal some boots from a boot maker's win- 
 dow and run off, and that the defendant followed and pointed 
 out the plaintiff as one of the young men to a policeman, 
 who took the plaintiff into custody. The defendant did not 
 give any charge to the policeman. A verdict having been 
 found for the plaintiff, the court refused a new trial.* 
 
 ' Grinhamv. Willey, 4 H. & N. 496; L. J. Exch. 242; Brown v. Chapman, 
 6 C. B. :5G5. 
 
 - Hopkins v. Crowe, 4 Ad. & E. 774; Wheeler v. Whitinor, 9 C. & P. 262; 
 Warner v. Riddiford, 4 C. B. N. S. 200; Morgan v. Iluo-hes. 2 T. R. 231; Stone- 
 house V. Elliott, 6 lb. 315; Harris v. Dignum, 29 L. J. Exch. 23. 
 
 =* Gosden v. Elfick, 13 Jur. 989. 
 
 * Hudson V. Howard, 1 Jur. 658. 
 
 * Where the complainant accompanied the constable charged with the execu- 
 tion of the warrant, and pointed out to him the person to be arrested, it was 
 held tliat this was evidence to go to tlie jury of a participation in tlie arrest 
 (West V. Smallwood, 3 M. & W. 418; 6 Dowl. P. C. 580; 2 Jur. 328).
 
 284 FALSE IMPRISONMENT. §§314,315. 
 
 § 314. When in an action for causing- a person to be 
 taken to a police station, it appears that the going proceeded 
 originally from the plaintiff's own Vvill, the defendant will 
 "he entitled to a verdict on either "not guilty" or "leave 
 and license " pleaded. But the plaintiff will not be deprived 
 of his right to recover damages if it appear that being acted 
 upon by the defendant's having made a charge of felony 
 against him in the presence of a policeman, he went volun- 
 tarily with the policeman to the station house for the pur- 
 pose of meeting the charge.-^ 
 
 § 315. Where a charge for assault and false imprisonment 
 is sought to be excused under the plea that the plaintiff un- 
 lawfully entered the defendant's house, and would not leave 
 when requested, w^hereupon the defendant sent for a police 
 officer and gave the plaintiff into custody, it must be alleged 
 and proved, either that there was a breach of the peace at 
 the time, or that a breach of the peace had been committed, 
 and that there ^v^as reasonable ground for apprehending that 
 it would be renewed.^ Trespass for assault and false im- 
 prisonment, and taking the plaintiff to a police station. 
 Plea that the defendant was possessed of a dwelling-house, 
 and that the plaintiff entered the dwelling-house, and then 
 and there insulted, abused, and ill treated the defendant and 
 his servants in the dwelling-house, and greatly disturbed 
 them in the peaceable possession thereof, in breach of the 
 peace; whereupon the defendant requested the plaintiff to 
 depart, which he refused to do, and continued in the house, 
 making the said disturbance and affray therein ; that there- 
 upon the defendant, in order to preserve the peace and re- 
 store good order in the house, gave charge of the plaintiff to 
 a certain policeman, and requested the policeman to take the 
 plaintiff into his custody, to be dealt with according to law ; 
 and that the policeman, at sucli request of the defendant, 
 gently laid his hands on the plaintiff for the cause aforesaid, 
 
 ' Peters v. Stanway, G Car. & P. 737. 
 
 = Grant v. Moser, 5 M. & Gr. 123; Price v. Seeley, 10 CI. & Fin. 28.
 
 § 310. PRlVATi: PERSON CAUSING ARREST. 285 
 
 and took Iiirn intociistody. It was proved that the plaintiff 
 entered the defendant's shop to huj an article, when a dis- 
 pute arose between the plaintiff and the defendant's shop- 
 man ; that the plaintiff refusing, on request, to go out of the 
 shop, the shopman endeavored to turn him out, and an affray 
 ensued between them ; that the defendant went into the 
 shop during the affray, which continued for a short time 
 after he came ; that the defendant then requested the plaintiff 
 to leave the shop quietly, and that he refusing to do so, the 
 defendant gave him in charge to a policeman, who took him 
 to a station house. It was held that the defendant was jus- 
 tified, under the circumstances, in giving tlie plaintiff in 
 charge, in order to prevent a renewal of tlie affray.^ '''" 
 
 § 316. Where a merchant employs a clerk to sell goods 
 for him in his absence, or a superintendent to take the 
 general charge and management of his business at a partic- 
 ular store, he does not thereby confer authority upon sucli 
 clerk or superintendent to arrest, detain, and search any one 
 suspected of having stolen and secreted about his person, 
 any of the goods kept in such store. It cannot be presumed 
 that a master by intrusting a servant Avith his property, and 
 conferring power upon him to transact his business, thereby 
 authorizes him to do any act for its protection, that he could 
 not lawfully do himself, if present. The master would not, 
 if present, be justified in arresting, detaining and searching 
 a person upon suspicion, however strong, of having stolen 
 his goods, and secreted them upj3n his person. The authority 
 of the merchant to his clerk or superintendent, could not there- 
 fore be implied from his employment.^ f But it follows from 
 
 ' Timothy v. Simpson, 1 C. M. & R. 757; 5 Tyr. 244; 6 Car. & P. 499; see 
 Reece v. Taylor, 4 Nev. & M. 460; 1 Har. & W. 15; Atkinson v. Warne, 1 C. M. 
 & R. 827; 5 Tyr. 481 ; 3 Dowl. 483. 
 
 ^ Mali V. Lord, 39 N. Y. 381. 
 
 * The rule stated in the text will be found illustrated in the following cases : 
 Green v. Bartram, 4 Car. ct P. 308; Rose v. Wilson, 8 Moore, 362; 1 Bing. 353; 
 Cohen v. Hnskisson, 2 Mees. & W. 477; Bavnes v. Brewster, 2 Ad. & E. N. S. 
 375; Grant v. Moser, 2 Dowl. N. S. 923; 6 Scott, N. R. 46; Simmons v. Millin- 
 gen, 2 C. B. 524. 
 
 t A town is not liable for the unautliorized, illegal, and oppressive acts of a
 
 28G FALSE IMPRISONMENT. ^§317,318. 
 
 tlie rule as to tlie liability of tlie raastei* who cooimands, 
 and the servant who commits a trespass, that where an 
 arrest has been made under process, which is afterward set 
 aside for irregularity, both the attorney who sued out the 
 process, and the client who set the attorney in motion, may 
 be prosecuted for the assault and false imprisonment.^ 
 
 § 317. An action may be maintained against a judgment 
 creditor for maliciously, and without reasonable or probable 
 cause, indorsing a writ of ca. sa., issued on a judgment to levy 
 a larijer sum than is due, and causino- the debtor to be ar- 
 rested thereunder ; and the plaintilf, before bringing the 
 action, need not obtain his discharge from custody.^ But 
 where, previous to judgment, the plaintiff paid part of the 
 debt for which he w^as sued, and afterward judgment was 
 signed, and a ca. sa. issued for the whole amount, it was held 
 that no action lay, so long as the judgment stood for the full 
 amount.^ ''^ 
 
 § 318. Where a creditor employs the power of imprison- 
 ment given by law for the collection of his judgment debt, 
 to extort other money from the debtor, or to compel him to 
 pay another debt against his will, the creditor wall be deemed 
 a trespasser from the beginning.^ When the process of law 
 has been abused and prostituted to an illegal purpose, it is 
 
 constable in committing a person to prison witliout a mittimus or vrarrant of 
 committal (Board of Trustees v. Schroeder. o8 111. 353). 
 
 ' Stephens v. Elwall, 4 M. & S. 261 ; Bennett v. Baves, 5 H. & N. 391 ; 29 
 L. J. Exch. 224. 
 
 ^ Gilding v. Eyre, 31 L. J. C. P. 174. 
 
 = Huffer V. Allen, L. R. 3 Exch. 15. 
 
 * Breck v. Blanchard, 2 Fost. 303; Richardson v. Duncan, 3 N. Hamp. 508; 
 Severance v. Kimball, 8 lb. 386; Stoddard agst. Bird, Kirby R. 65. 
 
 * "It would not be creditable to our jurisprudence if the debtor had no 
 remedy by action where his person or his goods have l)een taken in execution 
 for a larger sum than remained due upon the judgment, the judgment creditor 
 knowing the sum for wh.ich execution is sued out to be excessive, and his motive 
 being to oppress or injure his debtor. The court or judge to whom summary 
 application is made for tlie debtor's liberation, can give no redress beyond 
 putting an end to the process of execution on payment of the sum due, althougli 
 by the excess the debtor may have suffered a long imprisonment, and have been 
 utterly ruined in his circumstances " (Lord Campbell, Churchill v. Siggers. 3 
 Ell. & Bl. 937; 23 L. J. Q. B. 308; Jenings v, Florence. 2 C. B. 487; 26 L. J. 
 C. P. 277).
 
 §ni8. PRIVATE PERSON CAUSING ArvRKST. 287 
 
 immaterial whetlier or not it issued for a just cause of action, 
 or whether or not the suit was legally terminated.-^ On 
 criminal process to remove from New Hampshire a person 
 charged in Massachusetts with obtaining goods by false pre- 
 tences to that State for trial, it was held that if the party 
 caused the defendant to be arrested, and made use of the 
 process in any manner to compel the defendant to settle or 
 give a note, that was a use of process wholly unauthorized 
 by law, and the note thus procured was void.^ The court in 
 this case say : " It is wholly illegal to use the criminal process 
 of the State to extort money, or even to compel the payment 
 of debts. It -was not provided for any such purpose. If a 
 creditor is desirous of collecting a demand lawfully due to 
 him, the laws have provided remedies deemed by the legis- 
 lature suitable and competent for that purpose. If, instead 
 of a resort to such remedies, he attempts to pervert the ciim- 
 inal process of the State, and make it subservient to that 
 object, he may, in thus depriving his debtor of his liberty, 
 make himself liable to damages, and in some instances en- 
 danger his own liberty." ^ * 
 
 ' Granger v. Hill, 5 Sc. 5G1. 4 B. N. C. 212; Heywood v. CoUinge, 9 Ad. & 
 E. 268. 
 
 -' Shaw V. Spooner, 9 N. Hamp. 197. 
 
 ^ Referring to Buriiham v. Spooner, 10 N. Hamp. R. 532. 
 
 * Where a del:)tor is decoyed by false pretences from the State in which he 
 resides into another State, for the purpose of enabling his creditor to bring an 
 action against him, and on his arrival the suit is commenced, and his body 
 attached, the whole proceeding is a fraud upon the debtor, and void (Hill v. 
 Goodrich, 32 Conn. 588; and see Metcalf y. Clark, 41 Barb. 45 ; Goupil v. Simon- 
 son, 3 Abb. 474; Stein v. Valkeuhuysen, Ellis, Black. & Ellis. Go; Williams v. 
 Bacon, 10 Wend. 63G; Snelling v. Watrous, 2 Paige, 314). In Hill v. Goodrich, 
 supra, the delator was dtcoyed from Boston to Plartford l)y means of two anony- 
 mous letters, and by pretences -which were admitted to liave been false. Ells- 
 worth, .1., in delivering the opinion of the court, said: "In a case in Tyler's 
 reports, a delator was decoyed from the State of Vermont into that of New York, 
 and there sued on a debt barred by the statute of limitations in Vermont. When 
 he got back to Vermont he sued the )iarties that had decoyed him, and recov- 
 ered. And I think the decision rests upon higli principles of justice. A like 
 case was decided by .Tudge Thompson, in the United States Circuit Court. Tlie 
 principle of these cases is this: No person has p. right thus to decoy another 
 from one place to another to his injury. It is a deceit, and deceit and damage 
 are always a good ground of action. It has been so held ever since the case of 
 Pasley v. Freeman, 3 T. R. .51. 
 
 "It was in this case some damage to Hill — the expense of coming — the loss 
 of time; and if he were to sue for damages, he could certainly recover. I leave
 
 288 FALSE IMPRISONMEIfT. § 319. 
 
 4. Arrest and detention tender 7niUtary order. 
 
 § 319. In relation to acts affecting military rank or 
 status only, or offenses against articles of war or military dis- 
 cipline, the civil courts have uniformly declined to interfere. 
 No acts of military officers or tril)unals, ^vithin the scope of 
 their jurisdiction, can be revised, set aside, or punished, civ- 
 illy or criminally, by a court of common law. Least of all, 
 will the common law undertake to rejudge acts done Jlag?rinte 
 hello in the face of the enemy. But for the malicious exer- 
 cise by a military officer of lawful authority, or for acts of a 
 military officer or court in excess of authority, though done 
 in good faith, toward those in the military service, and a 
 fortiori toward those who are not, where the civil laws are 
 in full force, the person injured may obtain redress in the 
 ordinary way by suit against the wrong-doer.^ If, for in- 
 stance, a military officer should assume jurisdiction over 
 those who were not liable to enrollment, he would transcend 
 his authority, and both he and those w^ho acted under him 
 ^vould be trespassers.^ In Massachusetts, where a person 
 who had not enlisted as a soldier was seized and taken 
 against his will into camp, it was held that he might main- 
 tain an action for such seizure against the officers and their 
 agents, and prove, in aggravation of damages, the fact of his 
 confinement in the guard tent, and that the defendants were 
 
 the fact that he was arrested on his arrival whoUj- out of the case. Suppose two 
 men combine to send a man to Europe after an estate, and it is all a deception, 
 can he not recover damages for it ? I cannot entertain any doubt upon the 
 point. It comes then to this, whether a man may be allured by fraud from his 
 own State to another jurisdiction, and there be sued. I think he cannot be. 
 You cannot do a wrong, and on that build a right. It is the same thing in 
 principle as if Hill had been brought here by force. I think if there was no 
 combination, but a single creditor should write to a debtor in another State, and 
 by a fraud get him into the State, he would be liable in damages; and that if 
 there was a combination for the purpose, it would be a crime." 
 
 The plaintiff being in the custody of the marshal of the King's Bench, was 
 charged in execution on an attachment which the defendant had caused to be 
 issued. It was held (Lord Abinger, C. B., dissenting), that there was prima 
 facie an act of trespass, for which an action was maintainable, and that if the 
 defendant were iustified under the writ, he ought to plead that matter speciallv 
 (Bryant v. Glutton, 5 Dowl. V. C. 60 ; 2 Gale, 50.) 
 
 ' Tyler v. Pomeroj-, 8 Allen, 480, per Gray, J., and cases cited. 
 
 "" Dariing v. Bowen, 10 Vt. 148.
 
 § 320. ARREST UNDER MILITARY ORDER. 289 
 
 liable both for the bodily suffering and for the injury to the 
 plaintiff's feelings occasioned by the wrongful act.^ * If the 
 authority be usurped, all acts done under it Avill, of course, 
 be void, and the party exercising them liable to prosecution. 
 In French v. White,^ the following instruction was held cor- 
 rect: "If the jury believe, from the evidence, that the de- 
 fendant assumino- to act as an officer of the so-called Confed-^ 
 erate government, and at the time of committing the wrong 
 complained of was engaged ill an effort to subvert the gov- 
 ernment, and that in pursuance of such illegal and treason- 
 able purpose, and as a' means to its accomplishment, arrested 
 and imprisoned the plaintiff*, the law would imply malice." 
 
 § 320. In passing upon the legality of acts done by 
 military officers in the discharge of their duty, in a period 
 of public peril, great latitude ought to be allowed.* Where 
 a military officer, stationed on the lines of the territory, in 
 time of war, seized the person of an individual who was 
 transporting property towards the enemy's province, under 
 circumstances to create a reasonable suspicion that he was 
 about to transport the same to the enemy, and immediately 
 delivered him over to his superior officer, the court held that 
 the officer was justified.* During the late rebellion it was 
 held, in Maine, that, as it was obvious that the provost mar- 
 shals in the several congressional districts, could not attend 
 to their duties in arresting deserters, and in the drafting of 
 
 ' Tyler v. Pomeroy, supra; Stowe v. Hey%vood, 7 Allen, 122, 123,. and cases 
 cited. 
 
 ^ 4 W. Va. 170. 
 
 ^ Wall V. McNamara, Michaelmas Term, 1779, per Lord Mansfield. 
 
 * Clow agst. Wright, Brayt. 118. 
 
 * The term "bodily infirmity," in the statute (of Vermont), exempting from mil- 
 itary duty, imports an absence of those palpable and visible defects which evidently 
 incapacitate the person from performing the ordinary duties of a soldier. But 
 of this, the ofiicer must, from the necessity of the case, judge in the first in- 
 stance, and if he misjudge, the error is to be corrected, not by action of tres- 
 pass, but in the manner pointed out by the statute (Darling v. Bowen, supra). 
 
 Where, in an action for false imprisonment, it appeared that the plaintiflf, 
 who was a soldier, did not return at the expiration of his furlough, it was held 
 that he was j/rima facie to be deemed a deserter and liable to arrest (Hickey v. 
 Huse, 56 Maine, 493). 
 
 Vol. L— 19
 
 290 FALSE IMPRISONMENT. §§ 321, 322. 
 
 soldiers without assistants, regard being bad to their various 
 and onerous duties, tliey would have the right, and it would 
 be their duty, to appoint agents or deputies to aid and assist, 
 and those agents or deputies, while acting "^vithin the line of 
 their duty, would be entitled to the same protection as their 
 several principals.^ And in New York, where in an action 
 for imprisonment, it appeared that the defendants were pub- 
 • lie officers ; that they were called to act in perilous, arduous, 
 and difficult times; that the law imposed upon them a public 
 duty for public purposes; that they were invested with legal 
 authority to act, and were liable if they neglected to 
 act in a case where tliere was sufficient and probable 
 cause ; and that the discipline of the army and safety of the 
 government depended upon their fidelity, it was held incum- 
 bent upon the court to determine the character of the defend- 
 ant's acts. The court said, that it would be a reproach to it un- 
 der such circumstances, if, through timidity or a desire to shirk' 
 responsibility, they should leave to the jury the question of 
 probable cause ; that it was not only proper, but the duty of 
 courts, to exercise great latitude in the review of the acts of 
 such officers.^ 
 
 § 821. Where a person, not subject to the jurisdiction 
 of a court martial, is arrested and detained for trial for an 
 offense not within its jurisdiction, the rights and responsi- 
 bilities of the officer causing the detention, are governed by 
 the rules of law applicable to courts of special and limited 
 jurisdiction.^ 
 
 5. Arrest hy officer without loarrant. 
 
 § 322. An officer who has reasonable ground to suspect 
 that a felony has been committed, may detain the person 
 suspected until the matter can be investigated by the proper 
 
 * Hickey v. Huse, 5G Maine, 493. 
 
 ' Hawley v. Butler, 54 Barb. 490; s. c. 48 lb. 101. 
 
 ' Smith V. Shaw, 12 Johns. 257. 
 
 J
 
 § 322. ARREST BY OFFICER WITHOUT WARRANT. 291 
 
 authorities/ altliongli it sliould afterward appear that the 
 person arrested was innocent of the charge.^ The oiScial 
 proclamation of the governor that a felony has been com- 
 mitted, published according to law, would justify the arrest 
 of a person against whom there w^ere reasonable grounds of 
 suspicion. So likewise, where a person accuses another of 
 having robbed him, and requests a constable to arrest the 
 accused, which the constable does without warrant, the con- 
 stable is not liable because it happens that the charge is false 
 and that no felony has in fact been committed. "It w^ould 
 be most mischievous that the officer should be bound first to 
 try and at his peril exercise his judgment on the truth of the 
 charg;e. He that makes the charsre alone is answerable. The 
 officer does his duty in carrying the accused before a magis- 
 trate who is authorized to examine and commit or discharge." ^ 
 Lord Hale * says : " If A. be dangerously hurt, and the com- 
 mon voice is that B. hurt him ; or, if C. thereupon come to 
 the constable and tell him that B. hurt him, the constable 
 may imprison B. till he knows Avhether A. lives or dies, and 
 until he can l)ring him before a justice." It is said by another 
 old authority,^ that where in an action against an officer it 
 appears that no felony was committed, the question always 
 turns upon this: — "Was the arrest bona fidef Was the 
 act done fairly and in pursuit of an offender, or by design, or 
 malice, or ill-will ? * '^' '"" * It w^ould be a terrible 
 thing if, under probable cause, an arrest could not be made. 
 ■^" * * * Many an innocent nlan has and may be taken 
 up upon suspicion, but the mischief and inconvenience to the 
 public in this point of view is comparatively nothing ; it is 
 of gi-eat consequence to the police or the court." Althouo-h 
 
 ' Hawk. p. 0. b. 2, cb. 12, 13; 1 Russ. on Cr. 594; Steph. Cr. L. 243; 1 Chit. 
 Cr. L. 15, 17; Beckwith v. Philby, 6 B. & C. 85; 9 D. & R. 487; Lawrence v. 
 Hedger, 3 Taunt. 14; Buckley v. Gross, 32 L. J. Q. B. 129; Allen v. Wright, 8 
 C. & P. 522; Hall v. Booth. 3 N. & M. 31G: Regina v. Toolev, 2 Ld. Rayrn. 1296; 
 Hobbs V. Brandscomb, 3 Camp. 420 ; Davis v. Russell, 5 Bing. 354 ; Cowles v. 
 Dunbar, 2 Car. & P. 505 ; Burns v. Erben, 40 N. Y. 463. 
 
 = Eanes v. The State, 6 Humph. 53, 
 
 ' Samuel v. Payne, 1 Doug. 360, per Lord Mansfield. " P. C. 587. 
 
 ' 1 Burns' .Just. 130; Led with v. Catchpole, Cald, Cas. 291.
 
 292 FALSE IMPRISONMENT. §§ 323, 324. 
 
 where A. beiug liable to arrest, B. represents that he is A., 
 and B is accordingly arrested and has no ground to complain 
 of the imprisonment l)ronglit about by his own act, yet after 
 he has given notice that he is not A. he cannot lawfully be 
 detained longer than is required to ascertain which of his 
 statements is true.^ 
 
 § 323. An officer who arrests an innocent party without 
 warrant, having at the time reasonable ground to believe 
 him innocent, will be liable. Where, therefore, a showman 
 told the defendant, a police constable, at a fair, that some 
 harness of his had been stolen a year previously, and that the 
 stolen harness was on the plaintiff's horse, and the constable 
 went to the plaintiff and asked him where he- got the har- 
 ness, and the plaintiff replied that he had bought it of a man 
 he did not know, and had given him a shilling for it, where- 
 upon the constable arrested the plaintiff; but it appeared 
 that the constable had been acquainted with the plaintiff for 
 twenty years as a householder of respectability ; it was held 
 that there \Vas no reasonable ground for the arrest, and that 
 the constable was liable in damages for false imprisonment.^ 
 
 § 324. Where an assault is committed within view of a 
 constable, he may lawfully arrest the offender at the time, 
 or as soon after as he conveniently can, not only to prevent a 
 breach of the peace, but also to secure the offender for the 
 purpose of taking him before a magistrate,"^ and any person 
 standing in his way, with intent to hinder him, may be taken 
 into custody.* So, likewise, a constable may lawfully enter 
 through an unfastened door in which there is a noise amount- 
 ing to a breach of the peace, and arrest a person engaged in 
 an affray, or in committing an assault in his presence, and 
 detain him a reasonable time to prevent a further assault.^ 
 
 ' Dimston v. Paterson, 2 C. B. N. S. 495 ; 26 L. J. C. P. 267. 
 
 * Hoggv. Ward, 3 II. & N. 417; 37 L. J. Exch. 443. 
 
 = Beg. V. Light, 27 L. J. M. C. 1. 
 
 ' Levy V. Edwards, 1 C. & P. 40. 
 
 ' Com. V. Tobin, 108 Mass. 436 ; post, § 370.
 
 § 325. ARREST BY OFFICER WITHOUT WARRANT. 293 
 
 If, liowever, the disturbance lias entirely ceased, the officer 
 and all aiding him in the arrest or detention will be liable,^ 
 A., a deputy marshal, took B. before C, a mayor who had 
 concurrent jurisdiction with justices of the peace, and told C. 
 that B. had been fighting and disturl)ing the peace, without 
 specifying when, where, how, or with whom. C. thereupon 
 ordered that B, pay a fine and be imprisoned. B.'s offense 
 was not committed in the presence of either A. or C. In an 
 action by B, against them for false imprisonment, it w^as held 
 that he was entitled to recover.^ The continued wilful and 
 malicious ringing of a door bell tends to a breach of the 
 peace, and if done within view of an officer he may take the 
 offender into custody.^ * 
 
 § 325. An officer, in arresting another without a warrant, 
 should be careful to keep within the authoiity conferred 
 upon hiim.f When the law requires that in such case the 
 party arrested shall be immediately and without delay, con- 
 
 ' 1 Hale p. C. 587 ; 1 East P. C. 303 ; 1 Chit. Cr. L. 20. 
 
 ' Prell V. McDoaald, 7 Kansas, 426. ' Grant v. Moser, 5 M. & G. 123. 
 
 * A licensed nightman was arrested l)y a policeman without a warrant and 
 confined in a station house in Baltimore for violating certain reguhxtions of the 
 board of health in relation to the removal and deposit of uightsoil. The night- 
 man admitted that he knew at the time of liis arrest of the order of the board of 
 health designating particular localities for the deposit of the nightsoil, and that 
 he violated the order because it cost him more to take the manure to those places 
 than to the place where he was at the time depositing it. It was not pretended 
 that there was any malice on the part of the policeman, or that the arrest and 
 detention were attended with circumstances -of violence or aggravation ; and it 
 appeared that the nightman was released without any unnecessary delay, on his 
 own recognizance. It was lield that a judgment for false imprisonment could 
 not be sustained (Mitchell v. Lemon, 34 Md. 176). When a wituess is duly 
 summoned to appear before the grand jury, and he appears, but refuses to be 
 sworn or to answer questions, and accompanies his refusal with profanity and 
 disrespectful conduct toward the jury, they can lawfully direct the officer in 
 attendance upon them to detain the witness in his custody and take him before 
 the court in order to receive its instruction. 
 
 t A person cannot lawfully be arrested for the breach of a by-law and taken 
 before a magistrate, unless such a ])o\ver is expressly given bv statute (Chilton 
 V. Lond. & Croyd. Iluil. Co. 16 M. & W. 212; Reg. v. Mann, 23 L. T. R. 12). 
 
 Where a Ijy-law imposes restraints beyond what is imposed by the general 
 law of the land, a satisfactory reason must be shown for them, and an express 
 statutory authority for their imposition (Calder & Hebble Nav. Co. v. Pillin<?, 14 
 M. & W. 70; Young v. Edwards, 33 L. J. M. C. 227). 
 
 When tlie two parts of a bylaw are entire and distinct from each other, it 
 may be good iu part, and bad in part (Reg. v. Lundie, 31 L. J. M. C. 157).
 
 294 FALSE IMPRISONMENT. § 326. 
 
 veyed before the nearest magistrate, and the officer continues 
 to hold liim in custody arbitrarily, and without process of 
 law, he will be liable. In Green v. Kennedy,^ it was proved 
 that the plaintiff was arrested by a police officer without 
 warrant, in the city of New York, and having been taken 
 by him before the defendant who was superintendent of 
 police, the latter ordered the plaintiff to be taken back, and 
 locked up ; which was accordingly done, and the plaintiff 
 remained in prison eight days. At the trial at the circuit, 
 a verdict was found in favor of the plaintiff for $325 
 damages, and the general term of the Supreme Court re- 
 fused to disturb it. In Brock v. Stimson,'^ it appeared that 
 the defendant, who was chief of police of the city of Cam- 
 bridge, found the defendant in a public place intoxicated, 
 disorderly, and disturbing the peace, and detained him at a 
 police station until he became sober, and then discharg^jd him. 
 It was held that as the statute ^ directed the officer to take 
 such a person without a warrant, and detain him in some 
 proper place until he had so far recovered as to render it 
 proper to take him before a court of justice, then to take 
 him before some justice of the peace or police court, in the 
 city or town where he had been found, and make a complaint 
 against him for the crime of drunkenness, which the defendant 
 failed to do, he could not justify the arrest, and that his 
 unauthorized discharge of the prisoner, afforded the de- 
 fendant no protection from liability. 
 
 § 326. An officer who has arrested another without proc- 
 ess, or on void process, wrongfully, or on Sunday, when 
 that is forbidden, or in any way not authorized by law, can- 
 not detain him on valid process until he has restored such 
 party to the condition he was in at the time of his arrest.* 
 
 ' 46 Barb. 16 ; and see Bacon's Abr. Tit. Trespass, G ; Coats v. Darby, 2 
 K Y. 517. 
 
 "" 108 Mass. 520. 
 
 ' Of 1869, ch. 415, p. 43. 
 
 * Tlie time from the rising' to the setting of the sun was by ancient authors 
 called dies Solaris, and the night dies lunaris. The solar day was termed the
 
 § 32G. ARREST BY OFFICER WITHOCTT WARRANT. 295 
 
 The law will not permit liim to perpetrate a wrong for tlie 
 purpose of executing process, nor to use process for the pur- 
 pose of continuing an imprisonment commenced without au- 
 thority, and by his wrongful act.^ Where, therefore, in an 
 action for assault and battery and false imprisonment it ap- 
 peared that the defendant, who was a sheriff in Penusylva- 
 
 natural daj ; and the whole twenty- four hours, consisting of the solar day and 
 the night succeeding it, was called the nrtijic'ial day. But afterwards the solar 
 day was termed the artificial day, and the twenty-four hours commencing from 
 the rising of the sun on one day, and continued through the night succeeding, 
 was styled the natural day (Co. Litt. 135 a). Dillcreut nations began the day at 
 different times. The Jews, Chaldeans, and Babyloneans at sunrise; the Umbri, 
 in Italy, at midday; the Egyptians and Romans from midnight. 
 
 Fox agst. Abel, 2 Conn. 541, was an action of trespass, charging an assault, 
 battery and false imprisonment. Under the plea of not guilty the defendants re- 
 lied on a justification by the levy of an execution on the body of the plaintitf, 
 which was made Sunday morning, after midnight and before daybreak. The 
 case turned upon the construction of the statute, which enacted that if any 
 civil process should be issued or served on the Sabbath, or Lord's day, it should 
 be void. At the trial in the court below, a verdict was found for tlie plaintiff 
 under the instruction of the court, that the Lord's day. within the meaning of the 
 statute, extended from the next preceding to the next succeeding midnight, em- 
 bracing a period of twenty-four hours. The Supreme Court, however, set the 
 verdict aside, a majority of the judges holding that the arrest was lawful 
 (Swift, Ch. J. ; Edmoud & Barnard, JJ., dissenting). 
 
 Shaw V. Dodge, 5 N. Hamp. 463, was an action of trespass for assault and 
 false imprisonment. The defendant set up in defense that he acted under 
 legal process as a collector of taxes. The plaintiff replied that the arrest was 
 made on the 11th of 'April, which was the Lord's day. On the trial it was 
 proved that the arrest was made some time in the night following the 10th or 
 early in the morning of the 11th. The judge charged the jury that if tiiey be- 
 lieved, from the evidence, that the defendant made the arrest at any time after 
 tvtfelve o'clock in the night following the said 10th day of April, the plaintiff 
 was entitled to recover. A verdict having been found for the plaintifl', the 
 Supreme Court, in refusing a new trial, remarked that as it was to be presumed 
 that the Legislature, when they used the ternvLord's day, intended it to be un- 
 derstood in its common acceptation, thjit is a cicil day, embracing twenty-four 
 hours, and commencing and ending at midnight, the instruction was correct. 
 
 False imprisonment, it is said, will lie for arresting a person on Sunday. 
 But this arises from the words of the statute, which declares the service to be 
 bad, and that the party shall be answerable in the same manner as if he made 
 the arrest without process (Reynolds v. Corp, B Caines, 2G7). 
 
 In Swann v. Broome, 3 Burrow, 1595, Lord Mansfield says that the ancient 
 Christians not only allowed all kinds of legal process on Sunday, but held their 
 courts open for the trial of causes down to the beginning of the sixth century; 
 but that afterwards the practice was prohibited by sundry ecclesiastical canons. 
 These canons were received and adopted in England, by their kings, in the 
 time of the Saxons. Edward the Confessor, made a constitution forbidding 
 the holding of courts " on all Sabbath days, after the ninth hour, and the whole 
 day foUov^ing, until Monday." These canons and constitutions were confirmed 
 l>y William the Conqueror; and tlms, says Lord Mansfield, they became part of 
 the common law of England. 
 
 ' Egginton's Case, 2 Ell. & Bl. 728; Percival v. Stamp, OExch. 171; Hooper 
 V. Lane, 27 L. J. Q. B. 75; 6 II. L. C. 443; Humphrey v. Mitchell, 3 Sc. 51.
 
 296 FALSE IMPRISONMENT. § 327. 
 
 nia, arrested the plaintiff in New York, and carried him back 
 to Pennsylvania, and kept him in close confinement there un- 
 til he was released on bail; it was held that as the arrest 
 was wrongful, the defendant was liable for all the injurious 
 consequences to the plaintiff which resulted directly from the 
 wrongful act ; that the imprisonment in Pennsylvania was a 
 continuance of the wrong wliich was commenced by the un- 
 authorized seizure in New York, and that it was not justified 
 by any process which was insufiicient to justify the original 
 arrest.^ But in North Carolina, where a person was in prison 
 under a void process, and the sheriff, without acquainting 
 his deputy, the jailer, with the fact that he had a valid proc- 
 ess ordered him to keep the prisoner, it was held in an ac- 
 tion for false imprisonment that the possession by the sheriff 
 of valid process, was a good defense for the acts of his 
 deputy.*^ 
 
 § 327. Where there is a negligent escape, the officer may 
 retake the party ; or if the defendant voluntarily return be- 
 fore suit, it is equivalent to a recaption on fresh pursuit.^ 
 But after a voluntary escape, if the party was in custody on 
 a writ of execution, he cannot be retaken.^ Nor can the 
 sheriff of a county in one State lawfully pursue and retake 
 in another State a prisoner who has escaped from his cus- 
 tody.^ Each State government owes protection to its citizens 
 and sojourners, and they cannot be forcibly taken out of its 
 jurisdiction without the consent of the constituted authori- 
 ties. In the second section of the fourth article of the Con- 
 stitution of the United States, provision is made for the sur- 
 render of felons and fugitives from justice ; but even this is 
 to be done only on application to the executive.* 
 
 ' Mandeville v. Guernsey, 51 Barb. 99; ante^ § 300. 
 
 "" Meeds v. Carver, 8 Ired. 398. ' Butler v. Washl)urn, 5 Fost. 251. 
 
 * Ibid.; and see Powers v. Wilson, 7 Cowen, 376; Little v. N. P. Bank, 14 
 Mass. 448 ; Pouclier v. Holley, 3 Wend. 184 ; Tanner v. Hague, 7 D. & E. 430 ; 
 Gould V. Gould, 4 N. Hamp. 174. 
 
 ' Bromley v. Hutcbins, 8 Vt. 194; ante, § 300. 
 
 * " If our citizens are subject to be taken by the officers of a neighboring
 
 §§ 328, 329. REQUISITES OF WARRANT OF ARREST. 297 
 
 6. Requisites of warrant of arrest. 
 
 § 328. At commou law, a warrant may be directed to 
 some indifferent person who is not an officer. But a magis- 
 trate ono-lit never to do this, when an officer can be con- 
 veniently found to perform the service, for the reason that a 
 private individual cannot be compelled to make service, or 
 be pnnished in case of refusal. In an early case in Massa- 
 chusetts, it was held that a warrant addressed to the proper 
 officers, and to an individual by name, who was not an officer, 
 was erroneous, and conferred no authority upon the indi- 
 vidual to make the arrest, though a doubt was expressed 
 whether it might not be lawfully done when no officer was 
 at hand to perform the service, and that fact was expressed 
 in the warrant.^ 
 
 § 329. A warrant should contain a command or require- 
 ment to the person to whom it is directed to make the arrest. 
 A mere authority in the nature of a license or permission is 
 not sufficient. The direction is an essential part of every 
 warrant. Unless it is directed to the sheriff or the constables 
 
 state, they are equally subject to be taken and transported to Louisiana or Mis- 
 souri. Except in those delegations of power invested in the general government, 
 and those restrictions provided in the United States Constitution, each State is a 
 national sovereignty, and holds the same relation to the other States which it 
 holds to other nations. As the United States Constitution contains no provision 
 on this subject, our citizens are as much subject to the authority and pretended 
 recapture by the officers of England or France as of New York. This suggests 
 consequences entirely at war with all civil liberty, protection, and national in- 
 dependence. We are entirely unprepared to adopt so dangerous and fearful a 
 principle and practice as that for which the defendant contends. It may be 
 true, tliough not yet so decided, that inasmuch as the bail is the keeper of the 
 principal at his own request, and is said to hold him as by a string, and may 
 generally circumscribe or enlarge his wanderings, and may arrest even after a 
 voluntary enlargement, he might, by virtue of this power and right existing by 
 contract and license between the parties, even arrest in another State. Tlie con- 
 dition of an officer is entirely different. His power is derived wholly from his 
 official character and his precept, and must, on principle, cease where his official 
 character and precept cease to have validity and jurisdiction. The same may be 
 said of the analogy mistakenly attempted to be drawn from a right acquired to 
 property by contract, or the laws of the country in which it is situate, remaining 
 good elsewhere " (Collamer, J., in Bromley v. ITutchins, 8 Vt. 194). 
 
 Whether a pauper can be forcil^ly removed from one town into another in 
 which he has a settlement, except by warrant, ^M^^re (Backus v. Dudley, 3 Conn. 
 568). 
 
 ' Com. V. Foster, 1 Mass. 488.
 
 298 FALSE IMPRISONMBJIT. § 330. 
 
 of tlie county or town, or some individual officer, or to some 
 individual by name, who is not an officer, it will not answer. 
 In Abbott V. Booth, ^ whicb was an action for assault and 
 battery and false imprisonment, the question was, whether a 
 warrant issued by a justice of the peace against the plaintiff, 
 afforded a justification to the defendant for the arrest and 
 detention of the plaintiff. The defendant was not an officer, 
 and the warrant was not directed to him in the body of it, 
 but "to the sheriff or any constable of tbe county" in which 
 the magistrate resided. The magistrate, instead of directing 
 it to the defendant by name, and commanding him to execute 
 it, undertook to confer an authority by an indorsement on 
 the back of the warrant, in the nature of a permission or 
 license to make the arrest. The judge at the circuit sus- 
 tained the objection that a justice of the peace has no power 
 to deputize a person not an officer to make an arrest, unless 
 the warrant is directed to such person by name ; and a ver- 
 dict having been found for the plaintiff, the judgment was 
 affirmed on appeal. 
 
 § 330. To justify an arrest, the name of the party to be 
 apprehended must be accurately stated and inserted in the 
 warrant, before it is delivered to the officer.^* If the name 
 is unknown, the warrant may be issued against the party by 
 the best description the nature of the case will allow.^ f But 
 the description must be sensible and intelligible. Thus, a 
 warrant directing the "associates" of persons to be arrested, 
 without mentioning the names of such associates, has been 
 held illeo^al and void as to them.^ And the arrest of a mem- 
 
 ' 51 Barb. 546. 
 
 = 2 Hale, 114; Foster, 3l2; 1 Chitty's Cr. Law, 39; State v. Weed, 21 N. 
 Hamp. 263. 
 
 = 1 Hale, 577; 1 Chitty's Cr. Law, 40. 
 
 * Wells V. Jackson. 3 Muuford, 458. 
 
 * Where A. is arrested under a warrant, in w^hich he is incorrectly named B., 
 all persons aiding in the arrest are trespassers (Johnston v. Riley, 13 Geo. 97). 
 
 |- A warrant regularly issued against a person whose name is unknown, with 
 a blank left for the name, will jus'tify the arrest of the proper person (Bailey v. 
 Wiggins, 5 Harring. 4(52).
 
 § 331. REQUISITES OF WARRANT OF ARREST. 299 
 
 ber of a corporation, on an execution against tlie " president, 
 directors, and company of the corporation," is a trespass. 
 Such a precept lias been characterized as " absurd and im- 
 practicable." ^ A general and uncertain description, is insuf- 
 ficient.^ 
 
 § 331. Process for the arrest of an individual, must so 
 describe the person intended, that the officer will know who 
 to arrest, and the party, whose liberty is threatened, will 
 know whether he is bound to submit. It is not enough 
 that the person in fact intended was arrested. The manda- 
 tory part of the warrant is that which gives it efficacy as a 
 process, and, under that, the officer must justify.^ Therefore, 
 in an action by A. against B., for false imprisonment, B. can- 
 not defend himself under a magistrate's warrant against C, 
 although A, was charged with felony, before the magistrate, 
 and was the person against whom the warrant was intended 
 to issue.* In Shadgett v. Clipson,^ where Josiali was arrested 
 under process against him by the name of Johii^ the officer 
 was held liable in an action for false imprisonment. The 
 court said, that process ought to describe the party against 
 whom it is meant to be issued ; and that the arrest of one 
 person could not be justified under a writ sued out against 
 another. In Griswold v. Sedgwick,^ process was issued from 
 a court of equity to attach for contempt, Samuel, and was 
 served upon Daniel, the person really in contempt, and 
 against whom the order was made. As soon as the officer 
 discovered his mistake, the prisoner was discharged ; but it 
 was held that the officer was liable. And where a w^arrant 
 recited a complaint against John B. Miller, and commanded 
 the officer to arrest " the said William Miller, it was held, in 
 
 ' Parsons, Ch. J., in Nichols v. Thomas, 4 Mass. 232. 
 
 "^ Clark V. Bragdon, 37 N. Ilamp. 562; Grumon v. Raymond, 1 Conn. 40; 
 Sandfortl v. Nichols, 13 Mass. 289. 
 
 ' Rex V. Newman, 1 Ld. Ravm. 562; Griswold v. Sedgwick, 6 Cowen, 456; 
 s. c. 1 Wfind. 12G; Scott v. Ely, 4 lb. 555. 
 
 * Hoye V. Bush, 2 Scott N. R. 86 ; 1 M. & G. 775. 
 
 ' 8 East R. 328. "^ 6 Cow. 450.
 
 300 FALSE IMPRISONMENT. § 332. 
 
 an action for false imprlsoiimeut, that tlie oflScer could not 
 lawfully arrest John R., although he was the person in- 
 tended.^ * 
 
 § 332. AYhen the imprisonment is sought to be justified 
 under a warrant of commitment, the warrant must show the 
 grounds upon which it was granted. f Where a mittimus 
 
 ' Miller v. Foley, 28 Barb. 630 ; and see Melvin v. Fisher, 8 N. Harap. 406 ; 
 Crawford V. Satchwell, 2 Strange. 1218; Cole v. Hindson, 6 D. & E. 234; 
 Morgans v. Bridges, 1 B. & A. 647. 
 
 * The facility with which criminals pass from one part of the country to an- 
 other where they are wholly unknown, the various names they assume, and the 
 difficulty of ascertaining their true names, especially in the case of foreigners, 
 whose names are apt to be misunderstood and mispelled, and the importance of 
 promptly arresting them, and to that end, of protecting officers in so doing, 
 would seem to furnish some reasonai^le groiij:ds for adjudging that, when tlie 
 person who is really meant is arrested, though by a wrong name, such slight er- 
 ror, so harmless and so easily rectified, ought not to subject the officer to a suit. 
 Should such an exception be sustained it could, probably, only be where the 
 name was unknown or concealed, or falsely given, and the true party, against 
 whom the process was issued, had ijeeu arrested (McMahan v. Green, 34 Vt. 69). 
 
 The misnomer of a town in which* the jail is situate, in an execution, does 
 not render the execution void, nor the imprisonment thereon, in the common jail 
 of the county, a trespass (Lewis v. Avery, 8 Vt. 287). 
 
 A person arrested for a breach of the peace, cannot maintain an action for 
 false imprisonment against the justice who issued the warrant, or the constable 
 who served it, on account of a mere informality in the warrant, provided the 
 justice have jurisdiction (Cooper v. Adams, 2 Blackf. 294). 
 
 Where a requisition, for a fugitive from justice is made by the governor of 
 one State upon the governor of another State, and the latter causes the fugitive 
 to be arrested and delivered to the person appointed for that purpose by the 
 governor making the demand, an action for false imprisonment cannot be main- 
 tained against such person, on account of irregularity in the warrant of arrest 
 (Johnston v. Vauamringe, 5 Blackf. 311). 
 
 t In Hall V. Howd et al. 10 Conn. 514, the defendant Howd, as captain of a 
 company, issued two warrants, directed to a constable, commanding him. of the 
 goods and chattels of the plaintili to levy and collect two tines imposed upon 
 the- plaintiff for not performing military duty in the company; and for want of 
 such goods and chattels to take the body of the plaintiff, and commit him to 
 jail. In virtue of these warrants, the defendant Austin, as a constable, with the 
 assistance of Bartholomew, the other defendant, arrested the plaintiff, and 
 committed him to prison. For these acts of the defendants, the plaintiff 
 brought this action ; and the question in the case was, whether they could be 
 justified; in otiier words, whether the warrants were such as the defendant 
 Howd had a right to issue, and the other defendants to execute. It was not 
 stated in the warrants that the fines which the constable was commanded to 
 collect had been imposed by tlie officer who issued the warrants. It was stated 
 that the fines had been legally imposed, but by whom did not appear either 
 from the warrants theiuselves, or ijy reference to any record or proceedings 
 whatever. It is true, they were signed by Howd as captain of the company. 
 But the neglect charged upon the plaintiff took place, in one instance more than 
 seven, and in the other more than eleven months, prior to the date of the 
 warrants. Although Howd might have been tlie captain at the time of issuing 
 the warrants, it did not necessarily follow that he was the commanding officer
 
 § 333. DUTY TO COMMUNICATE SUBSTANCE OF WARRANT. 301 
 
 did not show the cause of commitment, and an action of 
 trespass therefor was brought against the justice, the con- 
 stable who executed the mittimus, and the persons who 
 assisted the constable, it was held that the mittimus was no 
 justification.^ It is however sufficient to state the cause in 
 general terms. To a declaration for trespass and false 
 imprisonment against the high bailiff of a county court, and 
 the governor of the jail, the defendants justified under a 
 warrant, under the seal of the county court, and directed to 
 them, whereby after reciting that the plaintiff had wilfully 
 insulted the judge, during his sitting, and that thereupon 
 the judge had ordered the plaintiff to be taken into custody, 
 and detained until the rising of the court, it " therefore " 
 required the defendants to arrest the plaintiff, and imprison 
 him for seven days. It was held, that the warrant was not 
 bad for uncertainty, in specifying the cause of commitment, 
 or for omitting;: to describe the nature of the insult, and 
 that the recital, that the plaintiff had insulted the judge, 
 was a sufficient adjudication of the offense.^ 
 
 V. Duty of officer to communicate substance of warrant. 
 
 § 333. We have already spoken of the duty of the officer 
 to "show his warrant of arrest when asked to do so.^ Al- 
 thoug-h he is not bound to exhibit the warrant in the first 
 instance — especially where there may be reason to apprehend 
 that it may be lost or destroyed — yet it is his duty to 
 inform the party, where such is the fact, that he has a warrant, 
 or to make known in some other way, that he comes in his 
 character as an officer to execute legal process ; and not leave 
 
 six months or a year previous. But whether he was, or was not, the hiw in a 
 case like this, would not intend that the fines were imposed by hina in the 
 absence of any averment of that kind. It was therefore held that the warrants 
 were void and alTordcd no justification to the defendants. 
 
 Where an inferior court was held from three weeks to three weeks, and the 
 writ was stated in a justification to have the body at the next court generally, it 
 was held good, and that a certain day need not be shown (Rowland v. Veale, 
 Cowp. 20j. 
 
 ' Hawkins v. Johnson, 3 Blackf. 46. 
 
 = Levy V. Moylan, 1 Pr. R. 307; 14 Jur. 983; 19 L. J. C. P. 308. 
 
 = Ante, § 209.
 
 302 FALSE IMPRISONMENT. § 334. 
 
 the party to suppose that he is assailed by a wrong-doer. 
 This however is where the party submits to the arrest, and 
 not where he makes resistance before the officer has time to 
 give the information. Cases will occur, in which the officer 
 will be justified in laying hands on the party before a word 
 is spoken. But either before, or at the moment of arrest, 
 the officer ought to say enough to show the party that he is 
 not dealing with a trespasser, but with a minister of justice.^ * 
 
 8. Liability of officer in execution of pi'ocess. 
 
 § 334. Although where it appears on the face of the proc- 
 ess that the court or magistrate that issued it had no juris- 
 diction of the subject-matter of the suit, or of the person of 
 the party against whom it is directed, it is void not only as 
 respects the court or magistrate, and the party at whose in- 
 stance it is sued out, but affords no protection to the officer 
 who has acted under it ; yet when the court, issuing process, 
 has general jurisdiction,, and the process is regular on its face, 
 the officer is not affected by an irregularity in the proceed- 
 ings.^ As a general rule, the officer is bound only to see 
 that the process, which he is called upon to execute, is in due 
 and regular form, and issued from a court having jurisdiction 
 of the subject.^ f In Nason agst. Sewall,^ which was an ac- 
 
 ' Fost. Cr. L. 310; 1 Russ. on Cr. 451, 514; Countess of Rutland's Case, 
 6 Co. 54; Mackalley's Case, 9 Co. 69; Com. v. Field, 13 Mass. 321; Arnold v. 
 Sleeves, 10 Wend. 514 ; Bellows v. Shannon, 2 Hill, 86. 
 
 "" Savacool v.Bougliton, 5 Wend. 170; Gorton v. Frizzell, 20 111. 291 ; Wooster 
 agst. Parsons, Kirby, 110; McMahan v. Green, 34 Vt. 69. 
 
 =■ Fitzpatrick v. Kelly, cited 3 T. R. 740; Cameron v. Lightfoot, 2 W. Bl. 
 1190; Belk v. Broadbent, 3 T. R. 185; Tarlton v. Fisher, 2 Doug. 671; Smith v. 
 Bowker, 1 Mass. 76; Haskell v. Sumner, 1 Pick. 459; Nichols v. Thomas, 4 
 Mass. 232; Sandford v. Nichols, 13 lb. 288; Wilmarth v. Burt, 7 Mete. 257; 
 post^ § 461. 
 
 " Brayt. 119. 
 
 * "A regular officer is not bound to exhibit his authority or process when he 
 arrests a defendant ; a special deputy is. But if it were his duty to exhibit it 
 when demanded, his refusal would not constitute him a trespasser, if he could 
 shovv' that he had a regular legal process in his possession, which authorized the 
 arrest" (Arnold v. Steeves, 10 Wend. 514, per Sutherland, J.) 
 
 In Connecticut, grand jurors who are empowered by law to make arrests, are 
 known officers, and as such are not bound to declare their character, nor the 
 cause of arrest, until the party submit to the arrest, or at least demand the 
 cause (Ward v. Green, 11 Conn. 455). 
 
 t In an action for false imprisonment for an arrest upon a writ of capias is-
 
 g 335. LIABILITY IN THE EXECUTION OF PROCESS. 303 
 
 tion for assault and hattery, and false imprisonment, it was 
 pleaded that an action having been brought against the 
 plaintiff, in the Circuit Court of the United States, and judg- 
 ment obtained against him therein, and execution issued, he 
 was arrested and detained in custody by the United States 
 marshal, which was the trespass alleged. The court said : 
 " The authorities are full in point, that trespass will not 
 lie in this case, and these pleadings present a strong case 
 for their application. By maintaining this action, the court 
 would, in effect, attempt to control the process of the Circuit 
 Court of the United States. It would be very inconsisten 
 that this court should support an action for false imprison- 
 ment, for confinement on an execution issuing from that court, 
 while that court may refuse to relieve the prisoner by setting 
 aside the execution, and may even sustain an action for an 
 escape, should he be liberated by the jailer." 
 
 § 335. A good deal of strictness has been required in jus- 
 tifying under process of courts of limited jurisdiction. Many 
 cases may be found wherein it is stated generally, that when 
 an inferior court exceeds its jurisdiction, its proceedings are 
 entirely void, and afford no protection to the court, the party, 
 or the officer who has executed its process. This proposition 
 is undoubtedly true in its largest sense where the proceed- 
 
 sued on an informal affidavit, the defendant may justify under the writ, if it has 
 not been set aside. Wliere in such case, the defendant justified under process of 
 outlawry, and the plaintiff replied that there was no affidavit of debt made and 
 filed, &c , and the defendant rejoined that there was such affidavit, and set 
 out an irregular affidavit, and the plaintiff demurred; it was held, t]iat the de- 
 fendant was entitled to judgment, trespass not being maintainal)le wliere the 
 process is irregular merely, and not void (Riddel v. Pakeman, 2 C. M. & R. ;^0; 
 1 Gale, 104; 5 Tyr. 721;. 
 
 The statute of New Hampshire which provides that ''no person to whom 
 any list of taxes shall be committed for collection, shall be liable to any suit or 
 action by reason of any irregularity or illegality of the proceedings of the town 
 or of the selectmen," &c.. is sufficiently broad to embrace the acts which precede 
 the town meeting, as well as its acts when convened; and the acts of the select- 
 men who called the meeting, as well as of the board created by it. But when 
 the clause is added, " nor for any cause whatever, except his own official miscon- 
 duct," the statute seems to afford ample protection to all acts of the parly acting 
 under color of an appointment, except such as amount to officuil misconduct. 
 The statute works no injury to those who may deem themselves aggrieved by the 
 forcible collection of an illegal tax; but sim[tly limits their choice of a remedy, 
 and exempts innocent parties from the consequences of tlie official misconduct 
 of others (Woods, J., in Osgood v. Welch, 19 N. Hamp. 105).
 
 304 faijSe impkisonmbnt. § 335. 
 
 ings are coram non judice, and the process by which the 
 officer seeks to make out his justification shows that the.court 
 had not jurisdiction. But it is otherwise when the subject- 
 matter of the suit is within the jui'isdictiou of the court, and 
 the alleged defect of jurisdiction arises from some other 
 cause. A distinction has long existed in cases of this kind, 
 between the court which exceeds its jurisdiction, and the 
 party at whose instance it takes place, and a mere ministerial 
 officer who executes the process ; the officer having a protec- 
 tion which the party has not, whether the court be one of 
 general or limited jurisdiction. ■^^' The right of a ministerial 
 officer to justify under his process where the court or a party 
 cannot, was considered but not settled, in Smith v. Bouchier, ^ 
 decided in 1734. Process was issued from the Chancellor's 
 Court of Oxford against Smith, who was arrested and com- 
 mitted to jail. The proceedings were instituted without 
 proving what was requisite to give the court jurisdiction. 
 The plaintiff who procured the proceedings, the vice-chan- 
 cellor who held the court, and the officers who executed the 
 process, were all sued by the defendant Smith for false im- 
 prisonment. They united in their plea of justification, and 
 
 > Savacool v. Boughton, 5 Wend. 170. =2 Strange, 993. 
 
 * We have seen, ante^ § 307, that where a person has been arrested and im- 
 prisoned by virtue of process Avhich has been set aside as irregular, all concerned 
 in the suing out of the process, are liable for an assault and false imprisonment; 
 but the officer, who had no option l)ut to obey the process, is protected by it (Par- 
 sous V. Lloyd. 2 W. Bl. 844). But it is dift'erent where the process is set aside 
 not for irregularity, but for error. "In the one case, a man acts irregularly and 
 improperly ^\'ithout the sanction of any court. He therefore takes the conse- 
 quences of his own unauthorized act. But where he relies upon the judgment 
 of a competent court, he is protected " (Williams v. Smith, 14 C. B. N. S. 596 ; 
 Cooper V. Harding. 7 Q. B. 928; Philips v. Biron, 1 Str. 509). 
 
 It has been held in Indiana, that in order to justify a constable in making an 
 arrest under process issued by a justice, the writ need not have been founded on 
 an affidavit. But it is otherwise as to a justification by a party or the justice 
 (Davis V. Bush, 4 Blackf. 330). 
 
 It is not false imprisonment to bring up a prisoner on habeas corpus issued by 
 a judge who has no jurisdiction of the case (The State v. Guest, 6 Ala. 778). 
 
 An arrest by an officer under an execution after the expiration of the time 
 within which the execution was made returnable, will make the officer a tres- 
 passer (Stoyel V. Lawrence, 3 Day, 1 ; Lofland v. Jefi"erson, 4 Harring. 303). 
 
 Where an order of arrest commands an officer to arrest a person and take him 
 forthwith before a justice, the officer will not be justified in taking his prisoner 
 to jail (Hynes v. Jungren, 8 Kansas, 391). 
 
 J
 
 § 335. LIABILITY IN THE EXECUTION OF PROCESS. 305 
 
 were all pronounced guilty. According to Strange, the court 
 remarked tliat the officer and jailer might have been excused 
 if they had justified without the plaintiif and vice-chancellor. 
 And it appears from the case, as reported in Hardwicke's 
 Cases, ^ that the point of the officer's liability was not settled; 
 for it is there said that there was no need of giving a distinct 
 opinion as to the action lying against them. In Hill v. iiate- 
 man,^ the plaintiff had been fined under the game law, and 
 was immediately sent to Bridewell without any attempt to 
 levy the j)enalty upon his goods. This the justice had no 
 right to do, and he was held liable for the imprisonment ; 
 but the constable was justified. It is to be understood from 
 this case that the justice had not jurisdiction to issue process 
 to commit the party until he had attempted to levy the fine 
 upon his goods ; but that after he had made that attempt 
 without success, he had authority to commit him. The proc- 
 ess, though unauthorized by the circumstances of the case, 
 would, under other circumstances, have been proper. The 
 issuing of the process was a matter within the justice's juris- 
 diction. This was sufficient for the officer's justification.* 
 
 ' P. 69. =" 1 Strange, 710. 
 
 * lu New Hampshire, a collector of taxes is not obliged to make unsuccessful 
 search for property in order to lay the foundation for an arrest of the delinquent 
 tax payer. He is not bound to seek the party at his own home rather than else- 
 where, to enforce his warrant, but may enforce it wherever he can do so without 
 embarrassment or inconvenience. In Osgood v. Welch, 19 N. Hamp. 105, which 
 was an action for assault and false iaiprisonment, the plaintiff proposed to prove 
 that the defendant said he hoped he should find the plaintiff away from home, 
 because he wanted to arrest him instead of taking his property; that when the 
 plaintiff was arrested, the parties went toward the plaintiff's house; that the 
 plaintiff' then exhiljited certain property of sufficient value to satisfy the tax, tell- 
 ing the defendant that the i^roperty belonged to the plaintiff, and was unencum- 
 bered, and asking the defendant to take it for the tax, and release the plaintiff' 
 from arrest, but that the defendant refused so to do. A verdict having been 
 found for the defendant in the court below, the Supreme Court refused to dis- 
 turi) it. It seems to have been understood in New Hampshire that if goods are 
 attached on the original writ, the creditor may at his pleasui'e, abandon the 
 attachment and levy upon the body. How it might be in such case, if property 
 were actually tendered, with indemnity as to the ow^nership, need not now be 
 considered. Nothing short of this, can exonerate the debtor from arrest. The 
 analogy from the case of a creditor or sheriff" to that of the collector, is very 
 strong. And we perceive no reason for a distinction between the two cases. 
 But the officer having once made the arrest, has no power to distrain the prop- 
 erty (Rev. Sts. of N. Hamp. ch. 45, § 8; Kingsley v. Hall, 9 N. Hamp. 190; But- 
 ler V. Washburn, 5 Post. 251). In Vermont, to entitle the debtor to redress 
 where he is committed on execution. when the execution should have been levied 
 Vol. I.— 30
 
 30G FALSE IMPmSONMENT. § 335. 
 
 In Sliergold v. Ilolloway, ^ a justice issued a warrant on a 
 complaint for not paying wages, and the defendant, a con- 
 stable, arrested Sliergold on it. He was sued for this arrest. 
 The court said tbe justice had no authority in any instance 
 to proceed by warrant, a summons being the only process. 
 Accordingly, the constable could not justify, as he was pre- 
 sumed to know that under no circumstances could a warrant 
 be issued in such a case. Therefore the court said that there 
 was no pretence for such a jui'isdiction. This decision would 
 doubtless have been different if it had appeared that under 
 any state oT things, a proceeding by warrant was allowable 
 in such a case; for then the court avouM assume for the 
 officer's protection, that such a state of things did exist, or at 
 least, he should not be required to judge whether it did or 
 not. Warner v. Shed ^ was an action of trespass and false 
 imprisonment against a constable for arresting and imprison- 
 ing the 23laintiff by virtue of a warrant of commitment issued 
 under the hands and seals of three justices of tbe peace. 
 The warrant stated that the plaintiff and another had been 
 convicted at a court of special sessions for an assault and 
 battery, and it mentioned the three justices before whom the 
 plaintiff" had been brought. These justices had jurisdiction 
 in ceitaiu cases of breaches of the peace, and had power to 
 fine and imprison for the same. They had jurisdiction, there- 
 fore, of the subject-matter; and it was held that that was 
 sufficient to justify the constable in serving the mitfi?ni(s,and 
 that he was not bound to examine into the validity of the 
 proceedings and of the process. ^' 
 
 on his property, it must appear that the debtor was ready to acquiesce in the tak- 
 ing of his property (Warner v. Stockwcll, i) Vt. 9). In the case of taking the 
 body for taxes, in order to make the tax collector liable, there must have been a 
 tender of property (Flint v. Wiiitney, 28 Vt. G80). An arrest upon a warrant 
 for the collection of taxes is in the nature of an arrest at common law upon final 
 process (Butler v. Washburn, 5 Fost. 2ol). 
 
 ' Ibid. 1002. = 10 Johns. 138. 
 
 * In Massachusetts, under the statute of 1850, ch. 314, the jurisdiction of 
 justices of the peace in the examination and trial of persons charged with crim- 
 inal offenses, was taken away, and the same was transferred to certain new 
 officers, called trial justices, leaving to justices of the peace only the authority to 
 receive complaints and issue warrants for the apprehension of alleged criminal
 
 § 336. LIABILITY IX Tin-: EXECUTION OF PROCESS. 307 
 
 § 33G. An officer wLo has an execution in common form, 
 authorizing and requiring liim to take the property of the 
 debtor to satisfy the execution, and for want thereof to arrest 
 the debtor, -will be protected in arresting and committing 
 the debtor, although before he is arrested he shows to the 
 officer his discharge under the insolvent law. It is easy to 
 see that it would paralyze the action of an officer, and often 
 defeat the service of legal process, if he were bound to stop 
 and try the genuineness and validity of a certificate of dis- 
 charge under a bankrupt or insolvent law. The certificate 
 may not be genuine or legally authenticated, and yet the 
 officer can take no evidence, nor even put the debtor himself 
 under oath to prove it. Wilmarth v, Burt,^ was an action of 
 trespass against a deputy sheriff, for arresting the plaintiff 
 on an execution. The plaintiff sought to avoid the officer's 
 justification, by proving that he had obtained a certificate of 
 discharge under the insolvent law of Massachusetts, which 
 discharge was obtained long after the date of the contract on 
 which the judgment was recovered, and that he exhibited 
 his discharge to the defendant at the time of the arrest. It 
 did not distinctly appear whether the judgment on which 
 the execution issued, was rendered before or after the plaint- 
 iff's discharge, but theie was ground to presume that it was 
 rendered some time after. The court said it was very clear 
 that the officer could take no notice of such a discharge, for 
 two reasons: 1st. If the debtor had his discharge before the 
 
 offenders, returnable before any of the trial justices of the same county. After 
 the passage of this act, therefore, the issuing of a warrant by a justice of the 
 peace, directing an arrest of an individual upon a criminal charge, and that the 
 party be taken before a justice of the peace, for examination or trial, would be 
 an act unautliorized by law; and the process would, upon the face of it, show 
 such want of jurisdiction as to the process, that if in execution thereof, the party 
 was actually arrested and held for trial before a justice of the peace, the ofticer 
 thus arresting the party and holding him for trial, as well as the magistrate who 
 issued such warrant, would be liable therefor in an action of trespass. In Stet- 
 son V. Packer, 7 Gush. 5G2, which was an action of trespass for illegal arrest, it 
 appeared that tlie warrant commanded the officer to take the prisoner"" Ijefore A., 
 or some other justice of the peace within and for the county," and that A. was 
 both a trial justice and a justice of the peace. It was held that the officer had 
 no right to take the prisoner before any other trial justice, and if he did so, the 
 officer and all aiding him would be lial)le as trespassers. 
 
 * 7 Mete. 257; and see Ewtirt v. Jones, 14 Mees. & W. 774; post, § 4G8.
 
 308 FALSE IMPRISONMENT. § 337. 
 
 rendition of the judgment, lie bad an opportunity to plead it 
 by way of defense, and if he did not do so, it was to be pre- 
 sumed that it was not valid. 2d. If the judgment was ren- 
 dered after the dischar2:e, it mio;ht have been founded on a 
 cause of action which accrued after the discharge, and the 
 officer could not by possibility know that it was not so. If 
 the plaintiff in such case has any remedy, it is not against 
 the officer who has simply executed the regular precept of a 
 court having jurisdiction, but by applying for his discharge 
 out of custody, or by audita querela^ or by an action on the 
 case against the party who thus wrongfully armed the officer 
 with power to arrest him, upon the ground of its being on 
 his part a malicious arrest. 
 
 § 337. The arrest of a privileged person upon regular 
 process, does not form an exception to the general rule that 
 a ministerial officer is protected in the execution of process, 
 whenever there is jurisdiction of the subject-matter, unless 
 he act maliciously, if the process be regular on its face, and 
 does not disclose the want of jurisdiction.^ The decisions on 
 the question of privilege all seem to be based on the prin- 
 ciple that where the process is regular and effective, the 
 sheriff is not bound to take notice of a claim of privilege 
 from arrest, which is personal to the party, inasmuch as he 
 is not vested with authority to judge and determine the 
 validity of the claim, which may properly be contested. The 
 process justifies the officer in making the arrest, so far as 
 being a trespasser is concerned, and the party claiming the 
 exemption must avail himself of it before a tribunal compe- 
 tent to determine its validity. This may be done by a mo- 
 tion to the court to quash or to discharge, in the case of re- 
 turnable process ; and where the process is not returnable, 
 by an application for relief to some tribunal having jurisdic- 
 tion to afford it.^ This question of privilege is of course not 
 
 ' state V. Hamilton, 9 Mo. 784. 
 
 "" Wood V. Kinsman, 5 Vt. 588; Brown v. Getchell. 11 Mass. 11; Cable v. 
 Cooper, 15 Johns. 152; Carle v. Delesdernier, 13 Maine, 363; Plummer v. Den- 
 nett, 6 Greeulf. 421 ; Com. v. Kennard, 8 Pick. 133.
 
 § 339. LIABILITY IN THE EXECUTION OF PROCESS. 300 
 
 applicable when the exemption is not personal, but general, 
 including all persons whatever.^ ^' 
 
 § 338. An exemption from arrest, whether existing at 
 common law or by statute, is a personal privilege, and may 
 be waived by the party entitled to it ; which he will be 
 deemed to have done unless he avail himself of the first op- 
 portunity to assert it and obtain his liberty.*^ Woods v. 
 Davis ^ was an action of trespass against a collector of taxes 
 for arresting the plaintiff and detaining h.im an hour and a 
 half, until the tax was paid by the friends of the plaintiff, 
 the arrest having been made at the annual town meeting at 
 which the plaintiff was entitled to vote. At the time of the 
 arrest nothing was said by him about his voting, or his right 
 to vote, nor did he claim exemption from arrest on the ground 
 of his privilege as a voter ; but it appeared that the defend- 
 ant, at the plaintift^'s request, sent for a friend of the plaintiff', 
 who, after consultation with the plaintiff, paid the tax at the 
 latter's request. It was held that as a waiver and voluntary 
 submission on the part of the plaintiff was fairly to be pre- 
 sumed, the action could not be maintained. 
 
 § 339. If the wrong person be arrested, the officer will 
 be liable, unless the person arrested was himself the cause of, 
 the arrest, by giving false information.^ B. having been ar- 
 rested under a writ against A., stated that she was the person 
 named in the writ. It was held that, although B. might not 
 be entitled to maintain an action against the officer for the 
 arrest, yet that the latter could not justify detaining B. after 
 he had notice that she was not the real party .^ 
 
 ■ Green v. Morse, 5 Maine, 250; Parsons v. Loyd, 3 Wils. 341. 
 
 " Dow V. Smith, 7 Vt. 4(55 ; Fletcher v. Baxter, 2 Aiken, 224. 
 
 ' 34 N. Hamp. 328. " Davies v. Jenkins, 11 M. & W. 755; see post, § 352. 
 
 ' Dunston v. Peterson, 2 C. B. N. S. 495; 26 L. J. C. P. 267. 
 
 * Where the captain of a military company imposed a fine upon a minor who 
 was a soldier therein, and issued a warrant for the collection of tlie fine, by vir- 
 tue of which the minor was imprisoned, and the statute conferred upon the cap- 
 tain HO power to issue warrants for the collection of fines, excejiting against 
 persons of full age; in an action of trespass brought by the minor against the 
 captain, it was held that he was entitled to recover (Mallory v. Bryant, 17 Conn. 
 178; but see Merriman v. Bryant, 14 lb. 200).
 
 310 FALSE IMPRISONMENT. §§ 340-42. 
 
 *§ 340. Where the plaintiff's attorney gives the officer 
 notice not to execute a ca. sa., if the arrest be made after the 
 receipt of the notice, it will constitute a false imprisonment ; 
 and notice from the attorney that the action is settled, or 
 that the execution is withdrawn, is a notice not to make the 
 arrest.^ 
 
 9. Private person aiding officer in arrest. 
 
 § 341. Sheriffs and other officers are empowered by law 
 to require suitable aid in the execution of their office in 
 apprehending criminals. When a person is called upon by 
 the sheriff" to assist him in arrestincr another, he is not at lib- 
 erty to refuse. Nor can he demand of the sheriff an inspec- 
 tion of the warrant under which he is acting, in order to see 
 by what authority he is proceeding, and whether, in his 
 judgment, it will be safe to assist him. It is sufficient that 
 he is the sheriff (or deputy sheriff'), a known public officer. 
 The person thus called on is protected by the call from being- 
 sued for rendering the requisite assistance.*^ 
 
 § 342. A sheriff may be guilty of a trespass, while those 
 w^ho are acting by his command are held excused. If the 
 'act itself be, in the first instance, lawful, but becomes g, tres- 
 pass ah initio by some subsequent misconduct of the sheriff, 
 as for not returning the writ, it would be obviously unjust 
 to hold the assistants liable for such constructive trespass. 
 And there are probably other cases where the command of 
 the sheriff would be a defense to those aiding him, though 
 the sheriff himself might not be justified. Statutes empow- 
 ering the sheriff to require suitable aid for the suppression 
 of riots, and for the arrest of persons violating the peace, are 
 only in affirmance of the pommon law, by which the sheriff 
 might raise the ^96»sse comitatus^ or, in other words, such a 
 number of the men of the county as were necessary for his 
 assistance in the execution of the king's writs, quelling riots, 
 
 ' Dutcher v. Hinder, 28 L. J. Exch. 28; Withers v. Parker, 4 H. & N. 524. 
 =* Bac. Abr. Tit. Sherifif, n. 3; Main v. McCarty, 15 III. 441.
 
 § 344. PRIVATE PERSON AIDING OFFICER IN ARREST. 311 
 
 nppreliending traitors, robbers, &c} In McMahoii v. Green,^ 
 it appeared that the plaintiff was arrested by a deputy sheriff 
 upon a warrant issued against John McManus for an assault 
 with intent to commit rape ; that the defendant was required 
 by the officer to assist him in making the arrest, and that in 
 obedience to such command he accompanied the officer in 
 making the arrest, and in committing the plaintiff to prison. 
 The plaintiff's name was John McMahon, instead of John Mc- 
 Manus, and upon this ground lie claimed that the warrant 
 was void against him, and that the defendant was liable. 
 Judgment, liowever, having been rendered for the defendant, 
 it was affirmed by the Supreme Court. 
 
 § 343. But where the original act of the officer in the serv- 
 ice of civil process is manifestly illegal, those aiding him 
 will be trespassers, though they act by his command. In 
 Hooker v. Smith,^ the defendants, in their plea in bar, de- 
 scribed the process, and stated that the sheriff requested 
 them to assist him in executing it ; and in the replication, the 
 truth of which was admitted by a demurrer, it was alleged 
 that the defendants entered the plaintiff' 's dwelling by forci- 
 bly breaking the outer door for the purpose, and with the 
 intent, to execute therein the writ of execution by arresting 
 his body. The court remarked that, as the defendants, with 
 the full knowledo:e that the sheriff was about to do an ille2;al 
 act, united with him in committing it, they must share with 
 him in the consequences ; and that a contrary doctrine would 
 enable a sheriff, under color of civil process, to add to his 
 own physical power to accomplish an illegal object the power 
 of a lawless, but wholly irresponsible mob. 
 
 § 344. All who aid and assist in the unlawful confine- 
 ment of another are liable for the false imprisonment, 
 although they had no hand in the original arrest, and did 
 not know that it and the imprisonment were illegal.'* It has 
 
 ' Hammond's N. P. 63, 65. "^ 34 Vt. 69. 
 
 " 19 Vt. 151. * Griffin v. Coleman, 38 L. J. Exch. 137; 4 II. & N. 2G5.
 
 312 FALSE IMPRISONMENT. §§ 345, 34G. 
 
 been held, tliat if, while A. is iiiilawfully imprisoned by B., 
 C. commits an assault upon him, C. is guilty of the false im- 
 prisonment as well as B., and that if A. sue both separately, 
 the pendency of one suit may be pleaded in abatement to 
 the other.^ 
 
 10. What constitutes an arrest. 
 
 § 345. An arrest is usually made by taking the person 
 into actual custody. The common practice is to put the 
 hand upon the individual, and any touching, however slight, 
 is sufficient. In an anonymous case,^ Chief Justice Holt said : 
 "If a window be open, and a bailiff put in his hand and 
 touch one against whom he has a warrant, he is thereby his 
 prisoner." In another anonymous case,^ it is said : " A bailiff' 
 having a warrant, perceiving a debtor's hand out of the win- 
 dow, seized it, and the court held it a sufficient arrest." 
 
 § 346. But no manual touching of the body or actual 
 force is necessary to constitute an arrest, if the party be 
 within the power of the officer, and submits to the arrest.* 
 In Williams v. Joues,^ Lord Hardwicke said : " It does not 
 follow that an arrest cannot be made without touching the 
 person ; for if one goes into a room and tells the occupant 
 that he arrests him, and locks the door, there is an arrest." 
 And in Horner v. Battyn,^ the arrest was held good, although 
 mere words were used, because the debtor submitted to the 
 arrest. So, where the defendant, for purposes of extortion, 
 had placed a writ in the hands of a sheriff's officer, with in- 
 structions to arrest the plaintiff* unless he would give up 
 some property, and the officer, finding his way to the 
 plaintiff's sick bed, produced the writ and demanded the 
 property, telling the plaintiff that unless it was delivered up 
 to him a man would be left with him, and the plaintiff* 
 
 ' Boyce v. Bayliffe, 1 Camp. CO. See Day v. Porter, 2 M. & Rob. 151. 
 "^ 7 Mod. 8; K. B. 1701. ' K. B. 1G75, reported in 1 Vent. 306. 
 
 * Butler V. Washburn, 5 Post. 251 ; Jenner v. Sparks, 1 Salk. 79; B. c.6 Mod. 
 173; Gold v. Bissel, 1 Wend. 210; Pike v. Hanson, 9 N. Hamp. R. 491. 
 " 2 Strange, 1019. " BuUer's N. P. 62.
 
 §347. WHAT CONSTITUTES AN ARREST. 313 
 
 yielded to tlie pressure and gave up the property, it was held 
 that these facts amounted, in judgment of law, to an arrest.^ '"^ 
 
 § 347. It will have been observed from what we have 
 already said on this subject, that there need not be any very 
 formal declaration of an arrest. If the officer goes for the 
 purpose of executing his warrant — has the party in his pres- 
 ence and power, and the party so understands it, and in 
 consequence thereof submits, and allows the officer to direct 
 his movements without resistance, or the officer receives 
 money or property in discharge of his person — it is in law an 
 arrest. Accordingly, where in an action of trespass for as- 
 sault and false imprisonment, it appeared that the plaintiff 
 did not intend to pay her tax unless compelled by an arrest ; 
 that the collector was so informed ; that he then proceeded 
 to enforce the collection of the tax — declared tliat he arrested 
 her — and she, under that restraint, paid the mou-ey ; it was 
 held that this was a sufficient arrest and imprisonment to 
 sustain the action,^ Where, howevei', upon a magistrate's 
 warrant being shown to the plaintiff, the latter voluntarily, 
 and without compulsion, attended the constable who had 
 the warrant to the mao;istrate, it was held that there was no 
 sufficient imprisonment to support the action.^ But in this 
 case there was no declaration of any arrest, and the warrant 
 was in fact used only as a summons. Unless the decision 
 
 ' Granger v. Hill, 5 Scott. 561. 
 
 ' Pike V. Hanson, supra ; and see Wood v. Lane^ 5 C. & P. 774. 
 
 ' Arro^smith v. Le Mesurier, 2 N. R. 211. 
 
 * In an action for false imprisonment, it was proved that the plaintiff and 
 one of his sons were passing the house of a constable in a wagon, when the latter 
 came out and said, " I have a warrant for jou and your two sons." The jilaintitT 
 asked him for what? He said, "For stealing pumpkins." The plaiutiti" got 
 partly out of the wagon, when the constable said, '"You can go home, put up 
 your horses, take your tea, and come down." The plain tiif did so, employed a 
 lawyer, and with him and his two sons went to the constalile's house, called him 
 out, and said, " Here are your prisoners." The constable said, " You move on, 
 and I will overtake you." They went forward, and the constable, overtaking 
 them at tlie house of the justice, they entered together. After some discussion 
 before the justice, the matter was adjourned without requiring bail. On the ad- 
 journed day the plaintitl" appeared, an examination was had, and the case dis- 
 charged. It was held that there had been a sufficient arrest to sustain the action 
 (Searls v. Viets, 2 Thompson & Cook, N. Y. Supm. Ct. 224).
 
 814 FALSE IMPRISONMENT. §§ 348, 349. 
 
 can be sustained upon this distinction, it must be regarded 
 as of doubtful authority. \ 
 
 § 348. If bare words be relied upon to make an arrest, 
 there must exist the power to take immediate possession of 
 the body, and the party's submission thereto. Genner, a 
 bailiff, had a ^varraut against Sparks, and went to him in his 
 yard, told him he had a warrant for him, and said, " I arrest 
 you." Sparks had a fork in his hand and kept the bailiff 
 from touch big him. Neither the bare power to arrest, nor 
 the words " I arrest you," constituted an arrest. But the 
 court said if the bailiff had touched him, that would have 
 been an arrest.^ Where, liowever, a person being notified 
 by an officer that he came to arrest him under a warrant, 
 submitted, the officer went home with him, stayed there all 
 night, and the next day took him before a magistrate, it was 
 held that this constituted an arrest, although the party was 
 not actually deprived of his liberty, nor personally guarded 
 by the officer.^ So, where a bailiff baviug a writ against a 
 person, met him on horseback and said to him, " You are 
 my prisoner," upon which he tm-ned back and submitted, this 
 was held to be a good arrest, though the bailiff never touched 
 him. But if, upon the bailiff' saying these words, the party 
 had fled, it would not have been an arrest, unless the bailiff* 
 had laid hold of him.^ " 
 
 11. Detention hy officer of partij arrested. 
 
 § 349. An officer is not bound, in order to retain his ar- 
 rest, to keep his hands upon his prisoner, or to secure him. 
 He may allow reasonable lil)erties to a debtor in custody; 
 and as between him and the debtor, the latter cannot com- 
 
 * Genner v. Sparks, 1 Salk. 78; 2 Esp. N. P. 374. 
 ^ Courtoy v. Dozier, 20 Geo. 3G9. 
 
 ' Homer v. Battyn. BuUer's X. P. G2; Russeu v. Lucas, 1 C. & P. 153; 
 Chinn v. Morris. 2 C. & P. 361 ; Pocock v. Moore, Ilv. & M. 321 ; Strout v. Gooch, 
 8 Greenl. 127 ; Gold v. Bissel, 1 Wend. 210. ' 
 
 * To constitute an arrest of the person, the oiBcer must have the custody and 
 control of the defendant's body, at least potentially, and he must claim that con- 
 trol, and unless ii is submitted to, must put it in itctual exercise.
 
 § 351. DETENTION BY OFFICER OF PARTY ARRESTED. 315 
 
 plain of liLerties wliich be requested, or to whicli lie assented, 
 provided tliere was no abandonment of the arrest.^ AVhere, 
 at tlie time a debtor was arrested upon a writ procured by 
 affidavit, the magistrate signing the writ was temporarily- 
 absent from the county, and the debtor notified the officer 
 that he wished to be taken before the magistrate for exam- 
 ination, it was held that, although the officer had no right to 
 commit him forthwith to jail, yet that he might detain the 
 debtor a reasonable time to await an examination, and need 
 not make himself the personal keeper of the debtor during 
 the period of such delay, but might use the common jail for 
 that purpose.^ "'^ 
 
 § 350. When the arrest is made at a distance from home, 
 the officer has a right to start with his prisoner at any hour 
 he may choose, or his business may require, and in such 
 weather as he may find at the time ; provided he does not 
 needlessly expose the prisoner's health, or do him a personal 
 injury. It will not answer unnecessarily to restrict an officer 
 in these particulars, and therefore no certain rules can be 
 laid down.^ 
 
 § 351, Where a person is convicted and sentenced to im- 
 prisonment by a court having no jurisdiction, an action will 
 lie against those who keep the accused in confinement. "* The 
 plaintiff, being a debtor to a bankrupt's estate, was sum- 
 moned to appear and be examined before the district court 
 of bankruptcy in which the fiat was prosecuted ; but refus- 
 ing to come, was arrested by the defendant, the messenger of 
 the court, under a warrant of the commissioner, and brought 
 up in custody to be examined. At the conclusion of his ex- 
 
 ' Butler V. Washburn, 5 Fost. 251. "" Wliitcorab v. Cook, 38 Vt. 477. 
 
 ' Butler V. Washburn, suj)ra. * Patterson v. Prior, 18 Incl. 440. 
 
 * In New .Jersey, in an action for assault and false imprisonment, it appeared 
 that a criminal warrant having been issued by a justice in one county, and in- 
 dorsed by a justice of anotlier county wherein the arrest was made, the oiiicer 
 refused to take his prisoner before the indorsing justice, but took him without 
 actual force into the iirst county before the justice wdio issued the warrant; and 
 it was iield that the ollicer was liable (Francisco v. Slate, 4 Zabr. N. J. 20; Rev, 
 Sts. of N. J. 327, §12).
 
 316 FALSE IMPRISONMENT. § 352. 
 
 amination, to wliich the plaintiff voluntarily submitted, the 
 commissioner said tliat he was discharged on payment of the 
 costs incurred in bringing him up ; and a memorandum to 
 that effect was indorsed on the warrant. The defendant in 
 consequence detained the plaintiff until the costs incurred in 
 bringing him up were taxed and paid by him under protest. 
 It was held, first, that the foregoing memorandum amounted 
 to an order to detain the plaintiff until the costs were paid ; 
 secondly, that the commissioner had no jurisdiction under 
 the bankrupt acts to make such an order, and would have 
 been liable to the plaintiff" in an action of trespass for the 
 imprisonment under it, and that consequently the defendant, 
 who must be assumed to have known of such want of juris- 
 diction, was also liable. It was further held that if the com- 
 missioner had had jurisdiction to commit the plaintiff, the 
 defendant would have been protected, though he had no war- 
 rant under the hand and seal of the commissioner.^ 
 
 § 352. In England, it has been held that if the wrong 
 man is arrested and handed over to a jailer, the jailer is liable 
 for the wrongful imprisonment, notwithstanding he had no 
 means of ascertaining the identity of the party brought to 
 him with the person named in the warrant, and could not, 
 consistently Avith his duty, have refused to receive and de- 
 tain him ; though if the party thus wrongfully detained did 
 not apprize the jailer of the fact, only nominal damages could 
 be recovered.^ But the jailer wall be protected in the regu- 
 lar and proper discharge of his duty, although the original 
 arrest was wrongful. In Oliet v. Bessey,^ the plaintiff had 
 been arrested by process without the jurisdiction of the 
 court. He w^as carried within the liberty and delivered to 
 the defendant, who was the jailer of the liberty; and the 
 question was, whether false imprisonment lay. The court, 
 
 ' Watson V. Bodell, 14 Mees. & W. 57; 14 L. J. X. S. 281 ; Jur. G'26. 
 ^ Aaron V. Alexander, 3 Camp. 35; Griffiu v. Coleman, 4 II. cc N. 265; 28 
 L. J. Exch. 134; cmte, § 339. 
 ' T. Jones, 214.
 
 § 353. officer's return. 317 
 
 after hearing mncli argument, lield tliat tlie action did not 
 lie against the jailer ; for he had done no wrong to the party, 
 bnt that only which lielonged to his office, which did not 
 o])lige him to incjulre whether the first arrest was tortious or 
 not ; and that even if he had been informed of the tortious 
 takino^ he ou2:ht to have detained the prisoner, beino; deliv- 
 ered to him ^vith a good warrant for the arrest. And in 
 Smith v^ Shaw, ^ which was an action against the officer com- 
 manding the provost guard at Sackett's Harbor during the 
 last war between the United States and Great Britain, for 
 unlawfully detaining the plaintiff in custody, the Supreme 
 Court, in affirming the judgment of the court below, which 
 was for the plaintiff, intimated that if the suit had been 
 against the provost marshal, he would not have been liable 
 for detaining the plaintiff; the situation of a provost marshal 
 in such a case belns: somewhat analogous to that of the 
 pound keeper in Badkin v. Powell,^ where it was held that 
 he was not a trespasser merely for receiving a distress, though 
 the orlo-iual takino; was tortious, because he was bound to 
 take and keep whatever was brought to him. * 
 
 12. Officer'' s return. 
 
 § 353. Public ministerial officers are required to set 
 forth the acts done by them, in order that the court may 
 judge of their sufficiency.^ An arrest upon process, of which 
 return is to be made, cannot in general be justified without 
 such return.^ f The return is not necessarily to be construed 
 
 ' 12 Johns. 257. "" Cowp. 476. 
 
 ' Henry v. Tilson, 19 Vt. 447; post, §§ 373, 491. 
 
 * Poor V. Tasjc^art, 37 N. Hamp. 544; Middleton v. Price. 1 Wils. 17; s. c. 2 
 Strange, 1184; Stiorland v. Govett, 5 B. & C. 485; Tubbs v. Tukey, 3 Cush. 438. 
 
 * Tlie unlawful detention of a prisoner after he is entitled to his discharge 
 is a fresh impriaonuient (Withers v. Ileuley, Cro. Jac. 379). 
 
 The removal of a person from one part of a prison to another in which he is 
 not legally confined, is a trespass (Cobbett v. Grey, 4 Exch. 729; 19 L. J. Exch. 
 137). But it seems that the Secretary of State is not liable in trespass if a per- 
 son be so removed under a general order made by him for the classidcatiou of 
 the prisoners which he had no legal authority to make (lb.). 
 
 t In an action of trespass alleging an unlawful arrest, it was proved that the 
 arrest was made on the 13th, under a legal wariant, which was duly returned on
 
 318 FALSE IMPRISONMENT. §§ 354, 355. 
 
 as setting out that the arrest was made on tliat (lay; hut 
 merely that the party had been arrested, and that the officer 
 then had him in custody and produced him to the magistrate 
 for examination. On what particular day the arrest was 
 made, or what particular proceedings were had for the safe 
 keeping of the party, or for insuring his presence before the 
 magistrate at the time of the return of the warrant, whether 
 that time be selected by the officer at his pleasure, or by 
 agreement between him and the party, are immaterial mat- 
 ters not necessary to be stated in the return.^ 
 
 § 354. Where the arrest of a party can be justified only 
 upon its being made to appear, on the return of the officer, 
 that he can find no goods whereon to levy, and this is not 
 stated by him in express terms, but, taking into considera- 
 tion the whole of the return, that conclusion appears to be a 
 direct and unavoidable inference from its statements, it will 
 be sufficient. In the case where this question arose, it was 
 not suggested by the plaintiff that in fact any goods existed, 
 which could, upon search or inquiry, have been found where- 
 on the officer might have levied. The plaintiff only relied 
 upon a supposed imperfection, not in the discharge by the 
 officer of his duty, but in the account which he rendered of 
 its performance.^ 
 
 § 355. Where a statute requires an officer, in commit- 
 ting a person to jail, to certify, upon the copy of his warrant 
 left with the jailer, " his doings in relation to the delin- 
 quent," his certificate must contain all the facts which justify 
 him in making the arrest and imprisonment ; and he will not 
 be permitted, in an action against him for false imprison- 
 
 the 22d, with a proper return of the arrest thereon. It did not appenr that 
 there was any other arrest, or that there were any proceedings of an unlawful 
 character connected with or subsequent to it. to render the defendants liMble as 
 tresiDussers by reason of them. It was held that an arningeuient entered into 
 between the othccr and the person arrested, for his appearance at a future day, 
 agreed upon between them as the day of hearing, was legal and proper (Poor v. 
 Taggart, 37 N. Hamp. 544). 
 
 ' Poor V. Taggart, mpra. = Snow v. Clark, 9 Gray, 190.
 
 § 356. officer's rstuen. 319 
 
 ment, to supply these facts by parol/ A general allegation 
 that he " has proceeded according to law," is insufficient 
 where any statement of his proceedings is necessary.^ So 
 likewise, a general statement is not sufficient to show tliat he 
 has given the party the notice required by law.^* 
 
 § 356. The official return of a public officer \^ prima facie 
 evidence in the officer's favor in the prosecution or defense of 
 a collateral action. It is admissible on the ground of the 
 general credit due to the return of an officer when it is his 
 duty to make a return. But it is subject to contradiction by 
 third persons, because they are neither parties nor privies to 
 the transaction, and because they have no remedy against 
 the officer for a false return. It is also open to contradic- 
 tion collaterally, as against tbe officer, even by a party to the 
 process, to avoid circuity of action.^ In Barrett v. Copeland,^ 
 which was an action for assault and battery and false impris- 
 onment, the defendant pleaded the general issue, and also a 
 plea in justification that he made the arrest as constable, on 
 an execution against the plaintiff; and he gave in evidence 
 the execution and his return thereon. The plaintiff, in order 
 to impeach the return, offered to prove that he was away 
 from home, and not where he could have been arrested on 
 tlie execution referred to, at the time the return purported 
 to show that the defendant had first arrested the plaintiff. 
 This evidence ha vino;- been excluded at the trial in the 
 
 ' Henry v. Tilson, 19 Vt. 447. ^ Briggs v. Whipple, 7 Vt. 15. 
 
 ' Heury v. Tilson, supra. 
 
 ' Gyfibrd V. Woodgate, 11 East, 296; Hathaway v. Goodrich, 5 Vt. 65; Stan- 
 ton V. Hodges, 6 Vt. 66. 
 
 ' 18 Vt. 67. 
 
 * Where collectors of taxes, in committing a person to jail, neglected to make 
 upon the copy of the warrant left with the jailer a scrawl or letters " L. S.," in- 
 dicating the place of the seal upon the warrant, it was held that such omission 
 did not make tlitm lialjle as trespassers (Gordon v. Clifford et al. 8 Fost. 403). 
 Eastman, J : "This error is, at best, a mere nonfeasance in copying the war- 
 rant; a clerical mistake in not putting upon tlie copy some hieroglyphics indicat- 
 ing that tlierc was a seal upon the warrant, and its place. All the language of 
 the warrant is correctly copied, and the indorsements required by statute prop- 
 erly made, and we do not think that tliis error in making the copy can or should 
 render the officers trespassers ah initio.''''
 
 320 FALSE IMPEISONMENT. §§ 357, 358. 
 
 county court, and judgment rendered for tlie defendant, it 
 was reversed by the Supreme Court. 
 
 13. Hesponsihility of magistrates. 
 
 § 357. The official oath required by law is requisite to 
 legal induction into office; and the incumbent who has been 
 duly elected or appointed to such office, and assumes its du- 
 ties without taking the oath, is not an officer cle jure^ and 
 cannot, therefore, in an action against him for false imprison- 
 ment, justify under his official character. Third persons are 
 not supposed to have the means of knowing whether the 
 officer has properly qualified. As to them, he is an officer 
 de faeto^ and his acts cannot be brought in question. But 
 the officer has no such immunity ; as he must always know 
 whether or not he has complied with the requirements of 
 the law. ^ 
 
 § 358. In an action of trespass against a magistrate for 
 arrest and imprisonment under a supposed judicial decision, 
 there is but a single question, to wdt : — whether the defend- 
 ant had jurisdiction to render the judgment under which the 
 plaintiff was arrested. If he had such jurisdiction, he can- 
 not be charged in the suit. The court Avill not inquire 
 wdiether or not the power has been wisely exercised, or 
 ^.vh ether the decision is right or wrong, in form or substance,^ 
 In Yates v. Lansing, ^ the liability of judges to answer to in- 
 dividuals affected by their decisions, for damages, was con- 
 sidered ; and it was there show^n that from the earliest ages 
 of the common law it has always been held that no judge is 
 answerable in a civil action, on account of any judgment ren- 
 dered by him as a judge. To this rule there is but one ex- 
 ception. If the judge has assumed to act as such, in a case 
 where he has no jurisdiction, his character of judge fui^nishes 
 him no protection. The jurisdiction of courts and judges 
 
 ' Courser v. Powers, 34 Vt. 517; Newman v. Tiernan, 37 Barb. 159. 
 = Burnham v. Stevens, 33 N. Hamp. 247. 
 = 5 Jolms. 283 ; affirmed, 9 lb. 395.
 
 § 359. RESPONSIBILITY OF MAGISTRATES. 321 
 
 and otliers exercising judicial powers, may be very general, 
 or very limited ; limited as to place, as to persons, as to sulj- 
 jeet-matter, and as to tlie course of proceedings ; and a failure 
 of jurisdiction, in any of these respects, is fatal to any de- 
 fense which rests on the assumption that the party attempted 
 to be charged was acting in a judicial capacity."^" 
 
 § 359. We have spoken, in a previous chapter,^ of the 
 well established principle, that when a magistrate or other 
 officer, having a special and limited jurisdiction, issues a war- 
 rant to take the person or property of another, he must show 
 upon the face of his proceedings that he has jurisdiction ; 
 that nothing will be intended in his favor; and that it must 
 appear that he has jurisdiction over the subject-matter, the 
 person and the process.^ An action having been brought to 
 recover a fine imposed by a court martial, it was held that a 
 court martial, being a court of limited and sj^ecial jurisdic- 
 tion, the law would intend nothing its favor; that he w^ho 
 sought to enforce its sentences or justify its judgments must 
 set forth affirmatively and clearly all the facts necessary to 
 show that it was legally constituted and had jurisdiction.^ 
 Where a special act provided that " all warrants alleging any 
 offense to have been committed within said city (Augusta), 
 
 ■ Ante, § 54. ^ See Hall v. Howd. 10 Conn. 514, 
 
 ' Brooks V. Adams, 11 Pick. 441. 
 
 * In Mather v. Hood, 8 Johns. 45, it was held that a record of conviction of 
 a justice, under the act of New York to prevent forcible entries and detainers, 
 • was not traversable; and that if it appeared that the justice had jurisdiction and 
 proceeded regularly, it was conclusive, and a bar to a suit against him for any- 
 thing adjudged and within his jurisdiction. But it was not held in that case, 
 nor is there any case that sanctions the doctrine, that by force of a conviction 
 before a magistrate the party affected by it may not show, even in a collateral 
 action, where the conviction is set up as a defense, or comes in question, that 
 the magistrate did not have jurisdiction of the person against whom the convic- 
 tion operates (see opinion of Spencer, Ch. J., in Bigelow v. Stearns, 19 
 Johns. 39). 
 
 In New York, it was held, in an early case, that in an action against a justice 
 of the peace, for assault and battery and false imprisonment, the defendant 
 might justify by virtue of a judgment and execution, without showing that he ac- 
 quired jurisdiction of the person of the party, or alleging that the party ap- 
 peared before him, or that he was a resident of the county at the time the 
 summons was issued (Hoose v. Sherrill, 16 Wend 33, Bronson, J., dissenting). 
 
 Where a magistrate does not have jurisdiction, all who advise or act with 
 him, or execute his process, are trespassers (Von Ketler v. Johnson, 57 111. 109). 
 Vol. I.— 21
 
 322 FALSE IMPRISONMENT. §§ 3G0, 361. 
 
 shall be made returnable before said court " (municipal court), 
 and the warrant was not made returnal^le before that court, 
 althougb the offense was therein alleged to have been com- 
 mitted within Augusta, it was held that it conferred no au- 
 thority on the magistrate to hear and dej^ermine the subject- 
 matter of the complaint, or on the officer to arrest and return 
 the alleged offender before such magistrate, and. that for their 
 acts in this particular they were trespassers.^ 
 
 § 360. Judicial acts exercised by persons whose judicial 
 authority is limited as to locality, must appear to have been 
 done within the locality to wdiich the authority is limited. 
 In King V. Chilverscoton,^ where two justices made an order 
 for the removal of a pauper and his family, and. having men- 
 tioned in their order two counties, Warwick and Coventry, 
 afterward described themselves as justices of the peace for 
 the county aforesaid, without designating which of the coun- 
 ties, although it w^as admitted that if they bad been justices 
 of the county of Warwick, and had so described themselves, 
 their order w^ould have been good, yet, as it did not appear 
 upon the face of the order that the justices who made it had 
 jurisdiction, it was holden void.* 
 
 § 861. A magistrate cannot (excepting, perhaps, in the 
 ease of a mere vagrant) lawfully detain a known person to 
 answer a charge not yet made against him. The justice 
 should have an information regularly before him, that he 
 may be able to judge whether it charges any offense which 
 the person ought to answer.'^ Accordingly, Avhen a person 
 
 • Wills V. Whittier, 45 Maine, 544. " 8 Term. R. 178. 
 ' Rex V. Birnie, 1 Mood. & R. 160; 5 C. & P. 20G. 
 
 * A similar decision was afterward made in the case of The King v. The Inhab- 
 itants of Moor Critchel!, 2 East, 66. So in Starr v. Scott, 8 Conn. 480, it was 
 held that a certificate of the commissioners upon an insolvent debtor's estate, 
 which did not contain an averment that they had <;iven the notice, wliich, by 
 statute, they were required to give, was void, and afforded no protection to the 
 debtor or the sheriff, who, in that case, had suffered the debtor to depart from 
 prison. 
 
 In England, it has been held not sufficient to describe a magistrate as justice 
 in the county, nor as justice for the county. He must be described as doing the 
 act as "justice in and f(u- the county" (Reg. v. Totness, 11 Q. B. 90; Reg. v. 
 Crowan, 14 lb. 221; Reg. v. Stockton, 7 Q. B. 520).
 
 § 3(52. EESrONSIBlLlTY OF MAGISTRATES. 323 
 
 has been arrested and is being taken before a magistrate for 
 examination, it is not competent for the magistrate who meets 
 them in the street to direct the officer to take the man back 
 to jail. It is a magistrate's duty, on all occasions, either to 
 examine into a charge, or, if there is a reason why he cannot 
 " examine into it, to direct the constable to take the party be- 
 fore some other magistrate.^ Where a magistrate issued a 
 warrant for the arrest of a person charged with riot, late Sat- 
 urday night, and indorsed thereon that the accused i)e com- 
 mitted until the next Monday for examination, which was 
 done, it was held that both the magistrate and officer were 
 liable as trespassers.'^ And it has been held that, if a magis- 
 trate issues a warrant of arrest in a criminal case, upon a 
 statement of facts on information and belief, when he has 
 certain information that full knowledge is within his reach, 
 he and the complainant are jointly liable in an action for 
 false imprisonment.^ * 
 
 § 362. If a court of limited jurisdiction issues process 
 which is illegal, and not merely erroneous; or if a court, 
 whether of limited jurisdiction or not, undertakes to hold 
 cognizance of a cause without having gained jurisdiction of 
 the person by having him before it in the manner required 
 
 ' Edwards v. Ferris, 7 C. & P. 542. ' Pratt v. Hill, IG Barb. 303. 
 
 ' Comfort V. Fulton, 39 Barb. 56. 
 
 * In England, it has been held that the judge of an inferior court of record, 
 who has made an order simpliclter for the payment of a debt by instahricnts. can- 
 not, upon non-payment, issue his warrant for the imprisonment of the debtor, 
 witiiout giving him an opportunity of being heard as to the cause of such non- 
 payment. Where, therefore, in trespass by A. against B. for false imprisonment, 
 B. 2)leailed that J. S. recovered a judgment against A. in the Sheriff's Court, 
 London ; that A. was summoned and appeared before the judge of that court, 
 who ordered the sum recovered to be jiaid by instalments; that the first instal- 
 ment w!is demanded and not paid; that the judge duly, l)y warrant under his 
 hand and seal, according to 8 & 9 Vict. ch. 127, ordered the officer of the court 
 to take A. and convey him to prison for forty days; and that B., as tiie attorney 
 of J. S., delivered the warrant to the officer, who took A. Replication that by 
 this order it was not directed that A. should be committed modo et forma. It 
 was held that the warrant issued did not support the plea, which must be taken 
 to aver the existence of a legal warrant; and that the defendant, having ac- 
 knowledged actual participation in the act of trespass by pleading in confession 
 and avoidance, could not protect himself upon this issue by showing that he had 
 acted merely as the attorney of J. S. (Kinniug v. Buchanan, 8 C. B. 271 ; 7 D. 
 & L. 169).
 
 324 FALSE IMPRISONMENT. § 363. 
 
 by law, the proceedings are void ; and in the case of a limited 
 and special jurisdiction the magistrate attempting to enforce 
 a proceeding founded on any judgment, sentence, or convic- 
 tion, in such a case becomes a trespasser. ^ Where a justice 
 of the peace rendered judgment in an action on a note, after 
 the expiration of the time when by law he was authorized 
 to render such judgment, without giving the defendant any 
 notice, and caused the defendant to be arrested and com- 
 mitted to jail, it was held, in an action for false imprisonment 
 brought by him against the justice, that the latter was liable. 
 After the suit had become discontinued by the omission of 
 the justice to attend to it within the time allowed him by 
 la^v, his power over the suit was at an end ; and any proceed- 
 ings by him afterward were coram non judice. He stood in 
 the same situation as regarded the plaintiff as if no sucb suit 
 had ever been commenced. When a person is required to 
 answer before a justice, he ought to know at what time lie 
 must attend, and how long he must remain in order to dis- 
 charge the duty imposed upon him by law\ To suffer a mag- 
 istrate to render judgment at any time afterward, at his pleas- 
 ure, would open the door to a most mischievous abuse of 
 judicial power. ^"^^ 
 
 § 363. Magistrates may render themselves liable ^as tres- 
 passers in consequence of wTong ministerial acts, although 
 invested with authority to hear and determine the facts nec- 
 necessary to empower them to do the ministerial act, and 
 although they have passed upon such facts before performing 
 
 ^ Bigelow V. Stearns, 19 Johns. 39; ante, § 56. 
 
 = Dyer v. Smith, 13 Conn. 384. 
 
 * Where a justice of the peace, wlio owned a promissory note, instituted a 
 suit on the note returnal^le before himself, for the purjiose of collecting his own 
 debt, rendered judgment and caused the maker to be arrested and committed to 
 jail, it was held tliat he was liable for false imprisonment (Dyer y. Smith, 13 
 Conn. 384). Waite, J. : — "It would be a reproach to the law to allow a man to 
 be a judge in his own case. It is said to be one of the great ends of the institu- 
 tion of civil society to prevent men from being judges in cases wherein they are 
 concerned, and to remit the decision of adverse interests to those who can have 
 no interest whatever in the determination of any such cases " (citing The Two 
 Friends, 1 Rob. Mm. R. 237 ; Mayor of Hereford's Case, 1 Salk. 396).
 
 § 363. RESPONSIBILITY OF MAGISTRATES. 325 
 
 the ministerial act. ^ * It was early determined in Massachu- 
 setts that the issuing of an execution by a justice of the peace 
 was a mere ministerial act, and in a particular instance where 
 •such process was issued erroneously, the magisti^ate was held 
 responsiljle in damages for the commitment to prison of a 
 party under it. ^ And where a person who had been con- 
 victed by a justice of the peace of an assault and battery, 
 after being permitted to go at large for nearly a year, was 
 arrested upon a mittimus without a capias to show cause 
 why he should not be committed, it was held that the justice 
 was lialjle in trespass. ^ In Michigan, ujDon a conviction be- 
 fore a justice of the peace, the party was sentenced to pay a 
 fine, with imprisonment for ten days in default of payment. 
 The fine not having been paid, the justice issued his warrant 
 of commitment, reciting therein judgment for the fine, and 
 that in default of payment, the defendant be imprisoned until 
 the fine was paid, or until discharged by due course of law. 
 It was held tjiat as the warrant was not supported by the 
 judgment, it was void, and the justice liable. *f 
 
 ' Pedley v. Davis, 30 L. J. C. P. 374 ; Newbould v. Coltman, 6 Esch. 189 ; 20 
 L. J. M. C. 149. 
 
 ^ Briggs V. Wardwell, 10 Mass. 356; Sullivan v. Jones, 2 Gray, 570. 
 
 = Doggett V. Cook, 11 Cusb. 262. ' La Roe v. Eoeser, 8 Mich. 537. 
 
 * A justice of the peace is liable to an action for false imprisonment for issu- 
 ing a warrant by virtue of wliicli the putative father of a bastard child is arrested 
 upon the application of an attorney who was not authorized by the overseers of 
 the poor to make the application (Wallsworth v. McCuUough, 10 Johns. 93, 
 cited and approved in Sprague v. Eccleston, 1 Lansing, 74). 
 
 Although the facts set forth in an affidavit to obtain an order of arrest be 
 slight and inconclusive, yet if they have some tendency to establish the charge, 
 and the justice, after inspecting them issues the order, he will not be liable to an 
 action for false imprisonment therefor, if the other proceedings are regular (Gil- 
 lett V. Thiebold, 9 Kansas, 427J. 
 
 f A justice of the peace through personal ill-will, got a constal>le to serve a 
 warrant for felony nine months after the warrant was issued, the party who 
 caused the warrant to be is-sued not having made a second ajjplicatiou to have it 
 executed; and the constable, also instigated by ill-will, arrested the party against 
 whom the warrant had issued. It was held that an action for false imprisonment 
 would lie both against the justice and constable (Garvin v. Blocker, 2 Brevard, 
 157). 
 
 A warrant issued by a militia oiTicer under the provisions of a statute impos- 
 ing fines for the neglect of military duty, is a ministerial act, and the officer is 
 liable as a trespasser for mistake as to the law or the issuing of erroneous process 
 (Batchelder v. Whitcher, 9 New llamp. 239). 
 
 Justices are empowered by the 27th section of 9 Geo. 4, ch. 31, to convict 
 of an assault upon complaint, and the "oiTender upon conviction thereof, before
 
 326 FALSE IMPRISONMENT. §§ 3G4, 365. 
 
 § 3G4. When a magistrate commits a j^er.sou to prison, in 
 a case in wliicli lie has no jurisdiction, be is liable for all the 
 consequences, which usually follow from the execution of a 
 warrant of commitment — such as the party being hand-* 
 cutfed, having his hair cut short at the prison, and his being 
 put in a bath there; but not for any violence or excess of 
 the oificers.^ ^' If, however, one be committed to jail on a 
 sufficient process, that is a defense to an action for false im- 
 prisonment, though he at the same time be committed on an 
 irregular or void process — unless it appear by the pleading 
 and evidence that some injury or inconvenience has been 
 caused the plaintiff by the void process.^ 
 
 14. Waiver of right of action. 
 
 § 365. A party may lose his right to maintain an action 
 for the false imprisonment, by being held to have waived 
 the same. In an action for taking the j^laintiff on an execu- 
 tion erroneously issued, it appeared that the plaintiff, instead 
 of being discharged from the execution by the defendant, ob- 
 tained, after a confinement of three months, his liberation 
 under the act for the relief of debtors ; and it was held tliat 
 
 them, is to pay such sum, not exceeding £-■), as slmll appear to them to be meet, 
 which sum is to be ])aid to some one of the overseers of the poor, or to some 
 otlier officer of the poor of the parish in wliich the offense shall have been com- 
 mitted, to be by such overseer or officer paid over to the general use of the rate 
 ol the county in wliich such parisli. &c., shall be situate. A conviction under 
 this section ordered the party convicted to pay the fine to the treasurer of the 
 county. It was held that the conviction was bad, and the magistrates lial)le to 
 an action of trespass at the suit of the party imprisoned under it (Chaddock v. 
 Wilbraham, 3 New Sess. Cas. 337; 13 Jur. 18U; 17 L. J. 79). 
 
 ' Mason v. Barker, 1 Car. & K. 100. " Lewis v. Avery, 8 Vt. 287. 
 
 * Where a person, empowered to take testimony, commits, without authority, 
 a witness for refusing to testify, not only he, but all who are present assisting 
 and urging the imprisonment, are trespassers (Marsh v. Williams, 1 How. Miss. 
 133). 
 
 Where a magistrate, who has jurisdiction of the person, issues a warrant of 
 commitment upon tiie complaint of another, for an offense over which he has 
 no jurisdiction, lie will not l)e liable for false imprisonment unless his want of 
 jurisdiction is shown on the face of tlie proceedings (Miller v. Grice, 1 Richard- 
 eon, 147). 
 
 On mesne process, by attachment for debt, issued under the lavv and authority 
 of the United States, returnable to a court of the United States, to be served on 
 a citizen of the State within tlie same, a mittimus is necessary to authorize a 
 ccmmitment (Palmer v. Allen, 5 Day, 1S3, Baldwin, J., dissenting).
 
 § 3GG. WAIVER OF EIGHT OF ACTIOIT. 327 
 
 he liad thereby waived the error and affirmed the execution.* 
 So, where the defendants, having "been arrested under a 
 judge's order, offered bail to the phiintiff's attorneys, and in- 
 duced them to examine the bail ; and the plaintiff's attorneys, 
 at the solicitation of the defendants' attorney, wrote their 
 approval on the undertaking, and the defendants were dis- 
 charged from custody; it was held that the defendants had 
 waived any objection to having been held to baiP In Mas- 
 sachusetts, it has been held that, if a person, served with 
 original process, by the wrong christian name, allows judg- 
 ment to be taken against him by default, he cannot maintain 
 an action against the officer, for his arrest on execution by 
 the same uame.^ 
 
 § 366. An agreement not to bring an action, if founded 
 on a good consideration, would be binding. Accordingly 
 where after an arrest, a party applied to a judge at chambers, 
 to be discharged out of custody ; and it being represented 
 that by his continuing in prison, he would commit an act of 
 bankruptcy, the judge, on the 4th of December, ordered the 
 defendant to be discharged out of custody as to the action, 
 upon giving a fresh warrant of attorney with a defeasance 
 for the payment of part on the 4th of January, and the re- 
 mainder with interest on the 4th of August, with liberty to 
 issue execution for the first sum, if not duly paid, and after- 
 ward for the latter sum if default made in the payment ; 
 and upon giving such warrant of attorney, the judgment to 
 be set aside, and a mortgage to remain as security, the de- 
 fendant undertaking not to bring any action for the imprison- 
 ment ; and the prisoner did not avail himself of the order; 
 it was held tliat this order embodied an absolute agreement 
 of the parties, founded upon good consideration, that he 
 should be forthwith discharged out of custody, and that he 
 should bring no action for false imprisonment, and, therefore, 
 that such an action could not be maintained."* 
 
 • Reynolds v. Church, 3 Caines, 274. ' Dale v. Eadcliffe, 25 Barb. 333. 
 
 = Tiull V. Ilowluml, 10 Cush. 109. " Wcutworth v. BuUen, 9 B. & C. 840.
 
 328 FALSE IMPRISONMENT. § 367. 
 
 15. Nature of the action. 
 
 § 367. An action for false imprisonment, is an action for 
 a direct wrong or illegal act in which the defendant mu^t 
 have personally participated. It is for having done that 
 which, upon the statement of it, is manifestly illegal ; while 
 the ground of the action for a malicious arrest or prosecution, 
 is the procuring to be done what upon its face is, or may be, 
 a legal act from malicious motives, and without probable 
 cause. This distinction is clearly stated in the reasons for 
 the judgment in Johnston v. Sutton,^ as given by Lord 
 Loughborough and Lord Mansfield."^ The gist of the action 
 is the unlawful detention. Malice in the defendant will be 
 inferred so far at least as to sustain the action ; and the only 
 bearing of evidence to show or disprove actual malice, is 
 upon the question of damages. So also, probable cause or 
 reasonable ground of suspicion against the party arrested, 
 
 * 1 Term R. 544 ; and see Stantou v. Seymour, 5 McLean. 267. 
 
 * Trespass is the proper remedy for false imprisonment. But if the arrest be 
 made on void process, such a process issuing out of a court without jurisdiction, 
 ■where malice and falsehood are the gravamen of the offense, and the false im- 
 prisonment only an incident, trespass on the case may be maintained (Piatt v. 
 Niles, 1 Edmonds N. Y. Sel. Cas. 230). 
 
 An action will lie against one who has either unlawfully arrested or im- 
 prisoned another, or who has falsely, that is, unjustly and maliciously, prose- 
 cuted him and caused his arrest. But these are different actions requiring dif- 
 ferent pleadings and evidence, and governed by different rules. The action for 
 unlawfully ari'esting or imprisouiug another, is trespass ; while for maliciously 
 prosecuting another, or causing or procuring his arrest, the remedy is by action 
 on the case. The former is the action for false imprisonment ; the latter for a 
 malicious prosecution or malicious arrest. In the last two cases, the action is 
 substantially the same, and is governed by the same rules, whether the injury 
 complained of is a prosecution or an arrest. The arrest may be the only act of 
 prosecution. Or there may be an unlawful and malicious arrest in the course of 
 •a lawful prosecution; as where a creditor arrests his debtor for a demand upon 
 which he cannot be imprisoned, or for more than is due, or where he is exempt 
 from imprisonment (Brown v. Chadsey, 89 Barb. 253, per Emott, J.). 
 
 Mr. Chitty (Tr. on Plead, p. 187, 188) says, '"that whenever an injury to a 
 person is effected by the regular process of a court of competent jurisdiction, 
 though maliciously adoj^ted, case is the proper remedy, and trespass cannot be 
 maintained ; as for example, for a malicious arrest or a malicious prosecution. 
 That no person, who acts upon a regular writ or warrant, can be liable to the ac- 
 tion of trespass, however malicious his conduct, but that case for the malicious 
 motive and proceeding is the only form of action (Quoted and approved by 
 Hosmer, Ch. J., in Watson v. Watson, 9 Conn. 140, who also cited the follow- 
 ing:— Belk v. Broadbcnt, 3 Term R. 183; Booth v. Cooper, 1 lb. 535; s. c. 3 
 Esp. 135; Ratcllffe v. Burton, 3 Bos. & Pull. 223: Stonehousev. Elliott, 6 Term 
 R. 315; Luddingtou v. Peck, 2 Conn. 700; 3 Stark. Ev. 1446).
 
 §^ 308, 309. DECLARATION. 329 
 
 afford no justification of an arrest or imprisonment, which is 
 without authority of hiw.^ As the continuation of an un- 
 lawful imprisonment constitutes a new trespass, a recovery 
 in an action brought during the imprisonment, will not bar 
 another action after it has terminated.^ 
 
 16. Declaration. 
 
 § 368. Where a person has been arrested in order to en- 
 force the 2^ayment of a tax, the assessment of which was 
 wholly wrongful, he generally has an election to treat the 
 arrest as the immediate cause of the injury, and declare in 
 trespass ; or to treat the assessment, upon wdiich the ^varrant 
 and arrest were founded, as the cause of action. Such are 
 cases where the party was not liable to the assessment of any 
 tax, or where the party making the assessment had no au- 
 thority to assess a tax. But if the authority exists to assess 
 taxes, and the party ^vas liable to some tax, then trespass 
 _^may not be a proper remedy.'^ ''^ 
 
 § 369. The declaration need not allege that the imprison- 
 ment was malicious and wuthout probable cause, though 
 malice may be given in evidence to affect the amount of dam- 
 ao-es.* A declaration which states that the defendants as- 
 saulted the plaintiff, and by force compelled him to go to a 
 ceptain place, where they imprisoned and detained him sev- 
 eral hours as a prisoner, is sufficient, without alleging that 
 the acts of the defendants were done illegally or wrongfully, 
 or without competent authority.'^ When there is a claim of 
 
 ' Brown v. Chadsey, 39 Barb. 253; Burns v. Erben, 40 N. Y. 463. 
 
 = Leltuul V. Marsh, 10 Mass. 389. 
 
 = Little V. Merrill, 10 Pick. 543; Little v. Greenleaf, 7 IMass. 23!i; The State 
 V. Thompson, 2 N. Hamj). 236; Pease v. Whitney, 5 Mass. 380, 384; Perry v. 
 Buss, 15 N. H. 222. 
 
 " Colter V. Lower, 35 Ind. 285. And see Tavlor v. Owen, 2 Blackf. 303; 
 Hull V. Rogers, lb. 429 ; Wasson v. Canlleld, 6 lb. 40G ; Poulk v. Slocuui, 3 lb. 
 
 4:i. 
 
 ' Gallimore v. Ammcrnian, 39 lud. 323. 
 
 "-^ In Alabama, counts in the forms furnished by the Code (p. 554) for assault 
 and batterv and for false imprisonment are both in trespass (Yv'illianis v. Ivcy, 37 
 Ala. 242, 244).
 
 330 FALSE IMPRISONMENT. § 370. 
 
 special damage, it must be averred, in order that the defend- 
 ant may have an opportunity to controvert it.^ The follow- 
 ing declaration was held good : That the defendant fakely 
 and maliciously made an affidavit in writing, <fec., and upon 
 said affidavit falsely and maliciously caused and procured 
 said plaintiff to be imprisoned by his body, and to be impris- 
 oned, and to be kept and detained in prison for a long time, 
 to wit, for the space of ten days then next following, at the 
 expiration of which said time the said plaintiff, in order to 
 procure his release and discharge from said imprisonment, 
 was forced and obliged to, and did then and there pay to said 
 defendant a large sum of money, to wit, &c., and was there- 
 upon discharged and released from said arrest and imprison- 
 ment.^ * 
 
 17. Plea justifying arrest without ivarrant. 
 
 § 370. A plea justifying an arrest without v>' arrant, on 
 the ground of reasonable and probable suspicion, must allege 
 
 ' Rising V. Granger, 1 Mass. 47; Westwood v. Cowne, 1 Stark. 172; Stanton 
 V. Seymour, o McLean, 267. 
 
 ^ Sheppard v. Furniss, 19 Ala. 700. 
 
 * A. caused B. to be taken into custody, on suspicion of felony, and taken 
 before a magistrate, who remanded B. for two days, and then discharged him. 
 SeiiMe. that B., on a declaration for a false imprisonment (in the usual form), 
 cannot recover for the two days' imi)risonmeut after the remand (Holtum v. Lo- 
 tun, 6 Car. & P. 726.) Whether he could do so, if it were stated as special dam- 
 age, quoeie (lb.). 
 
 In trespass for the abduction of the plaintiffs daughter, under twenty-one 
 years of age, the declaration need not allege that the plaintifi' thereby lost tiie 
 services of his 'child, although there be no evidence of a forcible taking (Kirk- 
 patrick v. Lockhart. 2 Brevard, 276). 
 
 Bennus v. Guyldley (Cro. Jac. 505. 506) was an action on the case. The 
 declaration stated that the defendant recovered a judgment against the plaintiff, 
 part of which was afterwards paid, and the residue released; and the defendant 
 covenanted that he would withdraw all process of execution for the same. The 
 declaration further stated that tlie defendant, intending to vex him, served a ca. 
 sa.. returnable '.i Trin. following, which he delivered to the sheritf to execute, 
 who, by force thereof, afterwards, to wit, on the 20tli day of July, arrested and 
 detained him, until he paid the amount of the judgment. The defendant pleaded 
 that the sheriff did not arrest by his ai)pointment ; to which plea the ])lainTitl' de- 
 murred. At the argmiient. the defendant did not maintain the plea, but took 
 several exceptions to the declaration, one of which was, that it was shown that 
 the sheriff made the arrest on the 2()th of July, which was long after the return 
 of the writ; so, it was done without warrant, and was false imprisonment in the 
 sheriff who took him by color of tiiat process, and for that cause principally the 
 declaration was held to be bad by all the court.
 
 § 370. TLEA JUSTIFYING ARREST WITHOUT WARRANT. 331 
 
 the commission of an offense wliicli justified the arrest, and 
 also state the facts which gave rise to the suspicion.^ '"' To a 
 declaration in trespass for assaulting the plaintiff and causing 
 him to be taken into a police station, and thence before a 
 magistrate, upon an unfounded charge of having unlawfully 
 attempted to procure from the banking house of the defend- 
 ant a blank check book, the defendant pleaded that he and 
 certain other persons carried on the business of bankers, un- 
 der the firm of C. & Co. ; that the plaintiff unlawfully endeav- 
 ored to obtain from C. & Co. a blank check book, ]>y falsely 
 pretending that one T., who kept ali account with them, was 
 his master, and liad sent him for it ; that, in pursuance of 
 sucli unlawful endeavor, the plaintiff induced one A. to go 
 into the banking house and to ask for a blank check book, 
 saying it was wanted for T., and that A. accordingly did so, 
 and stated that he had l)een so sent by the plaintiff", and that 
 the plaintiff was waiting outside for it ; whereupon the de- 
 fendant accompanied A. to the place where the plaintiff was 
 waiting, and upon A. stating, in the presence and hearing of 
 the plaintiff, that he had been so sent by him, the defendant, 
 having good and probable cause of suspicion, and vehemently 
 suspecting that the plaintiff had, by such false and fraudulent 
 pretences, as aforesaid, unlawfully endeavored to obtain from 
 the said C. tk Co. a blank check book of the said C. <fe Co., 
 for unlawful and unauthorized purposes, committed the tres- 
 pap.s complained of It was held, that the plea was ])ad in 
 substance, inasmuch as it neither alleged that a felony had 
 been committed, which alone could make it a good justifica- 
 tion at common law,^ nor that the plaintiff had committed an 
 oftense against the statute,^ so as to justify his arrest without 
 warrant,^ So, likewise, where the defendant pleaded that he 
 was an officer, that a felony had been committed, that tliere 
 
 ' Brown v. Chadsey, 39 Barb. 253. 
 
 " Ante, § 322. » 7 & 8 Geo. 4, c. 29. 
 
 * Mathews v. Biddiilph, 4 Scott N. R. 54; 1 Dovvl. N. S. 216. 
 
 * A plea wliieh does not show tint the arrest and imprisonment of the plaintiff, 
 which are justified, are the same of whicii the pla-ntiii" complained, will bo bad 
 on demurrer (Gallimore v. Auimenuau, 39 Ind. 333).
 
 332 FALSE IMPRISONMENT. § 371. 
 
 was reasonable suspicion and belief that the plaintiff had 
 committed said felony, and that, in order to take the plaintiff 
 before a magistrate, he had gently arrested him, the plea was 
 held bad, on demurrer, for not setting forth the facts related 
 to him from which he inferred that the plaintiff was guilty.^ 
 And where, in an action for false imprisonment, the defend- 
 ants pleaded that, before the time when, <fec., certain j)ersons 
 unknown had forged receipts on certain forged dividend war- 
 rants, and received the money purporting to be due in respect 
 thereof in bank notes of the Bank of England, amongst which 
 was a note for lOOZ., which was afterward exchanged there 
 for other notes, and amongst them one for 10^., the date and 
 number of which were subsequently altered ; that afterward, 
 and a little before the time when, tfec, the plaintiff was sus- 
 piciously possessed of the altered note, and did, in a suspicious 
 manner, dispose of the same to one A. B., and after, and before 
 the time when, tfec, in a suspicious manner, departed and left 
 England, and went to Scotland, and there continued; where- 
 upon the defendants had reasonable cause to suspect, and did 
 suspect, the plaintiff had forged the said receipts, whereupon 
 the defendants gently laid their hands on the plaintiff, and 
 carried him to and detained him in a jail in Scotland, in order 
 that he might be conveyed by a warrant, to be issued by a 
 justice of the county of Middlesex, to be dealt with accord- 
 ing to law. It was held, on demurrer, that this plea was too 
 general, it being necessary to show the causes of suspicion 
 with certainty, in order that the court might judge of their 
 reasonableness.^ ^" 
 
 § 371. A plea justifying an arrest without a warrant, on 
 account of an affray, or to preserve the peace, must either 
 aver that there was an affray or breach of the peace at the 
 
 ' Wasson v. Caufield, G Blackf. 4C6. = Mure v. Kaye, 4 Taunt. 34. 
 
 * Qumre^ whether a defendant, justifying an arrest in Scotland, as made on 
 suspicion of a felony committed in England, must show that the law of Scotland, 
 as well as the law of England, warranted such arrest; or whether, the defendant 
 showing by his plea an arrest made in Scotland which, if made in England, 
 would be warranted, it does not lie on the plaintiff, suing in England, to reply 
 that by the law of Scotland the arrest was not warranted (Mure v. Kaye, suyra).
 
 § 371. PLEA JUSTIFYING ARREST WITHOUT WARRANT. 333 
 
 time of tlie arrest, or a well founded apprehension of its re- 
 newal.^ Therefore a plea that the defendant was possessed 
 of a house, and that the plaintiff was then making a great 
 disturbance therein, and refused to depart when requested, 
 and was in great heat and fury, ready and desirous to make 
 an affray, and cause a breach of the peace, whereupon the 
 defendant gave the plaintiff into custody, is bad.^ So like- 
 wise, a plea which averred that the plaintiff committed a 
 breach of the peace by violently knocking for a long time 
 at the door of the defendant's dwelling, and that the plaint- 
 iff threatened to continue such knocking until a certain book 
 was delivered to him ; that the defendant then sent for a 
 constable, and the plaintiff having ascertained this, ceased 
 knocking and ran off, when the defendant, with the assistance 
 of the constable, immediately pursued the plaintiff and over- 
 took him near the dwelling-house ; whereupon the defendant, 
 in order to preserve the peace, and prevent the plaintiff from 
 continuing the disturbance, gave him in charge of the con- 
 stable, was held insufficient, for the reason that it did not 
 show, either that the breach of the peace was continuing, or 
 allege any facts going to prove that a renewal of the dis- 
 turbance was to be apprehended.^ So also, where the de- 
 fendant pleaded that the plaintiff*, with force and arms, came 
 to the door of the defendant's house, and with violence, at- 
 tempted to enter against the will of the defendant, and wil- 
 fully and wantonly rang the door bell, without lawful oc- 
 casion, and made a great noise and disturbance, to the an- 
 noyance of the defendant, and against the peace of the 
 Queen, and (after request to cease) continued making such 
 noise, &>c., without any lawfal excuse ; and thereupon the 
 defendant, in order to preserve the peace, and render good 
 order and tranquility in his house, gave the plaintiff' in 
 charge to a policeman ; the plea was held bad as not show- 
 ing that, at the time the plaintiff was given in charge, he was 
 
 ' See ante, § 321. "^ Wheeler v. Whiting, 9 Cur. & P. 263. 
 
 ' BsLwnea v. Brewster, 1 Gale & D. 669 ; 6 Jur. 392.
 
 334 FALSE IMPRISONMENT. § 372. 
 
 committing a breacli of tlie peace, or that there was reason- 
 aHe ground for apprehending that a breach of the peace 
 would be committed.^* 
 
 18. Plea justifying arrest under process. 
 
 § 372. AVhen the arrest is sought to be justified under 
 lawful process, the defense must be specially pleaded. Y/here 
 therefore, the plaintiff, in the first count of his declaration, 
 alleged a forcible arrest and imprisonment by the defendant 
 in Canada, to which the defendant pleaded the general is- 
 
 ■ Grant v. Moser, 5 Man. & G. 123; G Scott N. E. 46. 
 
 * In the following cases, the plea was sustained : — The defendant pleaded that 
 the plaintifi' attempted forcibly to !)reak and enter his messuage or pulilic house 
 witliout leave of the delendant. whereupon he, the defendant, resisted such en- 
 trance; and because the phuntifl" behaved himself violently, and created a dis- 
 turl)i)nce in the street, by which means a mob was asseml)led, and the defend- 
 ant's liusiness interrupted, and his customers annoyed, and because the plaintiff 
 threatened to continue such violent conduct, and to renew his attempts and ef- 
 forts to get into the house, and because no request or entreaty of the defendant 
 to the plaintitf to abstain from and abandon his attempts and efibrts was complied 
 with, the defendant, in order to preserve the peace, and secure himself from a 
 renewal of such attempts and efl'orts, gave him in charge to a constable, to be 
 carried before a justice of the peace. It was held, after verdict, that the plea 
 was good (Ingle v. Bell, 1 Mecs. «& W. 516). A plea of justification, after stating 
 that the defendants were in the lawful possession of a yard, and were there 
 erecting a wall by their servants, averred that the plaintitf entered the y;ird and 
 upon the wall, and made a great noise, disturbance and aft'ray, ill treated the de- 
 fendants, threw down their servants so employed, and obstructed the erection of 
 the wall, in breach of the peace; that the defendants requested the plaintifi" to 
 depart, which he refused to do; whereupon the defendants and their servants 
 gently removed him, and he violently resisted and assaulted one of the defend- 
 ants, in so doing; that the plaintiff then and immediately afterward, and just 
 before the said time when, etc.. with force, &c., again broke into and entered 
 the yard, and got upon the wall, and again made a great noise, disturbance and 
 affray therein, and threatened to assault, insulted and ill treated, and showed 
 fight to the defendants, and then again forcibl} obstructed the further erection 
 of the said wall, and threw down part thereof in breach of the peace; where- 
 upon, the defendants having view of the offenses and misconduct of the plaint- 
 itf' last aforesaid, in order to prevent such breach of the peace, then and there 
 gave cl.arge of the plaintifi" to a police constable, who then saw the misconduct 
 of the plaintitf, to take him before a justice, which the policeman did. It was 
 held that these were sufficiently positive averments of a continuing breach of 
 the peace from the commencement until the plaintiff was given in charge, or 
 amounted to a necessary implication of a well founded apprehension that it would 
 be renewed (Price v. Seeley, 10 CI. & Fin. 28). 
 
 The declaration charged an assault and battery of the plaintiff, and taking 
 him into custody along certain streets, and imprisoning him on a false charge of 
 an assault with intent to con)mit a felony. Plea that the plaintiff having as- 
 saulted the defendant, the latter gave the former in charge to a peace officer who 
 took him before a magistrate. Held that the plea was not a sufficient answer 
 (Stammers v. Yearsley, 3 M. & Scott, 410; 10 Bing. 35).
 
 § 373. PLEA JUSTIFYING ARREST UNDER PROCESS. 335 
 
 sue, and the plaintiflF proved without objection, that the 
 defendant procured a warrant from a magistrate wlio issued 
 it at his request, and that on this, the plaintiff was im- 
 prisoned ; it was held that, as no justification under the proc- 
 ess was pleaded, none could be insisted upon ; but that, as 
 the causing the plaintiff to be arrested, was a substantiv^e 
 act, the proof of which established all that the plaintiff had 
 alleged in his declaration, he was entitled to a verdict.^ * 
 
 § 373. When the defendant pleads a justification of the 
 imprisonment under an order of the court, and undertakes 
 to set out in his plea the facts, the plea must state all the 
 facts necessary to give the court jurisdiction.^ f To an ac- 
 tion for false imprisonment, the defendant justified under an 
 order of the court of review, that " the plaintiff should stand 
 committed for contemj^t of that court, in writing, printing, 
 and publishing, a certain printed paper," therein referred to. 
 The plea then stated that " the said order having been so 
 made as aforesaid, the Hon. Sir George Rose, one of the judges 
 of the said court of leview, afterward, to wit, &g., at the 
 request of the defendants, and according to the course and 
 practice of the said court of review, made and issued out of 
 the same court, his warrant in writing reciting the order, 
 and directed," <fec., for the arrest of the plaintiff. It was 
 held first, that the plea was ill for not showing distinctly 
 that Sir George Rose was one of the judges of the court of 
 review at the time of issuing the warrant ; secondly, that 
 it did not appear that a single judge of the court had any 
 
 ' Allen V. Parkhurst, 10 Vt. 557. ' Kettler v. Johnson, 57 111. 109. 
 
 * Bebee v. Steel, 2 Vt. 314, was an action for false imprisonment, to which 
 the defendant pleaded the general issue and a special justiiicatinn. An excep- 
 tion was taken to the refusal of tlie court below to allow the defendant to with- 
 draw the general issue, after the jury were impaneled, and before any testimony 
 was given them. It was held a matter of discretion with the court to allow it, 
 or not. under the circumstances. "If asked for, before the jury were impaneled, 
 it would generally be granted of course; if afterwards, it might be deemed in- 
 . expedient; as it would vary the course of presenting the testimony calculated by 
 the plalntiil. At any rate, the allowance or disallowance of such a motion, can- 
 not be assigned for error" (lb. per Hutchinson, J.). 
 
 t When the imprisonment is sought to be justified under a judicial writ, the 
 writ must be set out in the plea in full, or be sutHcicntly described (Kettler v. 
 Johnson, supra).
 
 33G FALSE IMPRIS0NME2fT. § 374. 
 
 power or authority by his individual warrant to cause the 
 plaintiff to be arrested for the contempt stated in the plea : 
 and lastly, that these defects were not aided by the allega- 
 tions with respect to the practice of the court, even if those 
 generally amounted to any averment as to the jDractice of 
 that court.^ ''* 
 
 § 374. Where an action is brought against an oflScer, 
 for an unauthorized and illegal arrest, and the defendant 
 justifies under legal process, he must set forth a due return 
 of it.^ The form of the plea of justification, as given by 
 Mr. Chitty,^ is that, at the time and place of return, the 
 defendant returned said writ, and then and there returned 
 thereon, that by virtue thereof he had arrested the said A. 
 B., the plaintiff, whose body he had ready, &c. ; it being of 
 course alleged in the j^lea that this is the same supposed 
 trespass upon which the plaintiff has counted. If tlie 
 plaintiff would rely upon another arrest, or upon an abuse 
 of his authority, by the officer in making the arrest which 
 
 ' Van Sandau v. Turner, 14 L. J. N. S. 154; 9 Jur. 296. 
 
 = Ante, § 353; Davis v. Bush, 4 Blackf. 330. = 3 Chit. PI. 501. 
 
 * Where, in trespass by A. B., the defendant justified under a m. sn. alleged 
 to liave been issued against "the now plaintiff, " without otherwise describing 
 him; it was held that the justification was established by tlie prnductiou of a 
 ca. sa. against C. B., and proof that in the former action, the now plaintiff was the 
 party sued by the name of C. B. It was further held that the plea would have 
 been more formal if it had alleged that the ca. sa. was against C. B., and that the 
 party against whom the m. S". was issued and the now plaintiflf, were one and the 
 same person; and that although it had been alleged that the ca. sa. was against C. 
 B. the averment of identity would have been sufficient without averring that the 
 plaintifl" was known as well by one name as by the other (Fisher v. Magnav, 5 
 Man. & G. 778). 
 
 A defendant, in an action for false imprisonment, pleading a justification 
 under mesne process sued out by him in a cause in which he was plaintiff, may 
 state that the writ issued upon an affidavit to hold to bail without settiug forth 
 the cause of action (Belk v. Broadbent, 3 T. R. 183). 
 
 V/here several join in the same special justification of trespass and imprison- 
 ment they must show a justification for all. ' ' Conceding that the facts set forth in 
 the pleas furnish a good answer for the constable who committed the plaintifl' 
 upon the extent, they are no defense to the others; for the pleas do not attempt 
 to connect them with the justification at all by stating that they acted under the 
 constable as aids or assistants, or that they were sefectmen or other officers of 
 the town, and put the extent into the hands of the constable, for execution. As 
 they do not show themselves in any way connected with the justification, and 
 have, by joining in the plea, admitted their connection with the trespass on the 
 plaintifl'. the pleas are bad as to them, and this renders the pleas insufiicient to 
 justify the officer also" (Clark v. Lathrop, 33 Vt. 140, per Poland, J.).
 
 §§ 375, 376. REPLICATIONS TO PLEAS. 337 
 
 is justified, or in his subsequent proceedings, such as to 
 render him liable as a trespasser ah initio at common law, 
 this must be set forth, by a new assignment, or by a replica- 
 tion alleging the excess of authority.* 
 
 19. Heplication to plea alleging hreach of the peace. 
 
 § 375. If the defendant justifies that he had a right to 
 imprison the plaintiff for a certain reasonable time to pre 
 serve the peace, the time is divisible, and the plaintiff may, 
 by his replication, deny that there was any cause for im- 
 prisoning him, and if there was, that the imprisonment was 
 for a longer time than was proper. A declaration in a tres- 
 pass alleged that the defendant on a certain day assaulted 
 the plaintiff and imprisoned him, and kept and detained him 
 so imprisoned for a long time, to wit, for the space of twenty- 
 four hours. The defendants pleaded "as to the said im- 
 prisoning the plaintiff, and keeping and detaining kim in 
 j^rison," that the plaintiff made a disturbance in and outside 
 a ckurck during divine service, and committed a breach of 
 the peace, and in order to prevent such disturbance and pre- 
 serve the peace, tke defendants "did a little imprison the 
 plaintiff, and keep and detain him irnprisoned for a reasona- 
 ble time in that behalf, to wit, until he ceased such disturb- 
 ance and breach of the peace, to wdt, for tke space of two 
 hours." The plaintiff replied de injuria, and also new as- 
 signed that the defendants imprisoned him after he kad 
 ceased the disturbance and breach of the peace. It was keld 
 on special demurrer tkat tke replication and new assignment 
 were not double.^ 
 
 20. Replication to plea justifying under process. 
 § 376. A plea justifying under insufficient autkority 
 skould be traversed by the plaintiff. Where, tkerefore, in 
 an action for assault and false imprisonment, tke defendant 
 
 ' Poor V. Taggart, 37 N. Hamp. 544; 1 Saund. 299, «. 6; 2 lb. 5, n. 3. 
 "" Worth V. Terrington, 2 Dowl. & L. 352; 13 Mees. & W. 781 ; 14 L. J. N. 8. 
 133. 
 
 Vol. I.— 23
 
 338 FALSE IMPRISONMENT. § 377. 
 
 justified under a writ sued out by liim as attorney for J. M. 
 against the plaintiff, which was delivered to the sheriff, who 
 by virtue thereof arrested and detained the plaintiff, and the 
 plaintiff instead of traversing the plea, as he should have 
 done if the arrest were iri-egularly made by the sheriff's 
 officer without a sufficient warrant from the sheriff, new as- 
 signed that the trespass complained of was upon another and 
 different occasion than that stated in the plea, and after the 
 supposed arrest therein mentioned ; it was held that the de- 
 fendant on proof of the fact as before stated was entitled to 
 a verdict.^ 
 
 § 377. But when the original arrest was lawful, and the 
 plaintiff seeks to recover on the ground of a wrongful re- 
 arrest, he should new assign. Where, therefore, to assault 
 and false imprisonment the defendant justified under a capias 
 ad respondendum^ and the plaintiff' replied that the defendant 
 released him from tlie arrest, and afterward arrested him 
 again, and prayed judgment because the defendant had ac- 
 knowledged the trespass, it was held that the plaintiff ought 
 to have new assigned.^ The same rule applies in case of 
 unjustifiable detention. Accordingly, where in an action for 
 an assault and false imprisonment, the declaration contained 
 two count,s, and the defendant pleaded first the general issue, 
 and secondly, that he and one A. B. being bail for the plaint- 
 iff in an action still pending, he (the defendant) seized the 
 plaintiff' to render him in discharge of the recognizance 
 entered into by him and A. B., and detained him until he 
 made satisfaction as to the demand for which the action 
 was brought; and the plaintiff replied de injuria, and it ap- 
 peared that the defendant, in addition to detaining the plaint- 
 iff until he had made satisfaction for such demand, kept him 
 in custody an hour afterward, and until he paid the expenses 
 incurred by the defendants becoming bail ; it w\a3 held that 
 the plaintiff ought to have newly assigned in order to recovci- 
 
 ' Oakley v. Davis, IG East, 82. " Scott v. Dixon, 2 Wils. 3.
 
 § 378. REPLICATIONS TO PLEAS. 339 
 
 for that part of the detention and imprisonment which was 
 unjustifiable.^ 
 
 § 378. If the plea seeks to justify a commitment of the 
 plaintiff under a judge's order which the plea avers was made 
 pursuant to the statute, a replication that the judge did not 
 make an order as alleged will be sustained by proof that, 
 althougli an order was made, it was not authorized by law. 
 In an action for false imprisonment, the defendant pleaded in 
 justification a judgment recovered in an inferior court of 
 record, and an order subsequently made by the judge of that 
 court for the payment of the debt and costs by the plaintiff 
 by instalments, and showing that such instalments were not 
 paid, and that the judge had thereupon ordered the com- 
 mittal of the plaintiff. The plea then alleged that the judge 
 " duly and according to the form of the statute in such case, 
 then and there made a warrant in writing," setting out a war- 
 rant of commitment, and averring that the defendant, as the 
 attorney for the judgment creditoi', delivered the warrant to 
 the officers, by whom and under which warrant the plaintiff 
 was arrested. To this plea, the plaintiff replied that the judge 
 did not order that the plaintiff should be committed modo ei 
 forma. The defendant at the trial produced a warrant of 
 commitment corresponding with tliat described in the plea. 
 But neither the warrant so produced, nor that described, 
 showed on the face of it that there had been any previous 
 summons to the plaintiff to show cause why he should not 
 be committed. It was lield that the warrant so produced 
 was invalid, and that the plaintiff was entitled to have the 
 verdict found for him on the issue on the second plea, as that 
 plea to be good must be understood to allege that the judge 
 made a valid order.^ 
 
 ' Lambert v. Hodgson, 8 Moore, 336; 1 Bing. 317. 
 
 ' Kinning v. Buchanan, 13, Jur. 813; 18 L. J. C. P. 333. 
 
 * In an action for false imprisonment, where the defendant justifies the com- 
 mitment as a magistrate for a liailable offense in consequence of an information 
 upon oath, the phiintill under the general replication de injuria sua propria, &c , 
 cannot give in evidence a teiuhtr and refusal of bail, but ought to have replied it 
 specially (Sayre v. Rockford, 2 W. Black, lUiS).
 
 340 FALSE imprisonme:nt. § 379. 
 
 § 379. A replication to a pica justifying under process, 
 that the process was set aside by a judge's order, must allege 
 the grounds upon which the order was granted. In an action 
 for false imprisonment, the defendant pleaded that he recov- 
 ered a judgment against the plaintiff, and sued out a ca. sa. 
 thereon (the judgment being in full force), under which ca. 
 sa. the plaintiff was arrested, <fec. Replication that the ca. sa.., 
 after the issuing thereof, and before the commencement of 
 the suit, w^as set aside by a judge's order, not averring the 
 grounds of such order. The replication was held bad on 
 special demurrer, inasmuch as the writ might, under suppos- 
 able circumstances, have been set aside for reasons w^hich 
 w^ould have been ground of error, and would not, therefore, 
 have prevented such writ, until set aside, from being a justi- 
 fication to parties enforcing it ; the replication not negativing 
 the existence of such circumstances.^ To an action for false 
 imprisonment, the defendant pleaded that a judgment was 
 recovered against the plaintiff, and that a ca. sa. issued there- 
 on, under w^hich he was arrested. The plaintiff replied that 
 the judgment was signed upon a warrant of attorney, and 
 that the judgment and ca. sa. were set aside by a judge's 
 order, which was afterward made a rule of court, on the 
 ground that the warrant of attorney was never delivered as 
 a complete authority to do or suffer any of the acts therein 
 specified, but, as an escrow, to take efl'ect in a certain event 
 which had never happened, and was to be kept by the 
 plaintiff in his own possession until such event should hap- 
 pen ; and that the defendant, by an improper contrivance, 
 obtained and kept possession of it, without the plaintiff's 
 consent ; that judgment was signed under color of the said 
 document, and the ca. sa. issued upon the judgment. It was 
 held, on demurrer, first, that the rej^lication was good, as it 
 sufficiently appeared that the ca. sa. was set aside, not on the 
 ground of its being erroneous, but on the ground of irregu- 
 larity or want of good faith ; secondly, that the replication 
 
 ' Prentice v. Harrison, 4 Q. B. 853 ; Rankin v. De Medina, 9 Jur.
 
 § 380. EVIDENCE. 341 
 
 was not bad in omitting to state that the order was made a 
 rule of court before the commencement of the suit, inasmuch 
 as it was not necessary that that fact should be stated ; 
 thirdly, that nul tiel record would not be the proper repli- 
 cation to such a plea.^ 
 
 21. Evidence. 
 
 § 380. Proof must be given of facts and circumstances 
 from which the judge and jury may decide whether there 
 was or was not an unlawful restraint or detention of the 
 person."' It is not enough for witnesses to testify that they 
 considered the plaintiff was in custody, and thought that he 
 was under restraint.^ If a party be taken into custody by 
 an officer on a warrant, the signature of which is proved 
 to be in the handwriting of the defendant, a magistrate, this 
 \^ Ijriina facie evidence against the defendant, without further 
 proof, that the warrant was issued by him.^ One of two 
 coplaintiifs in an action in the county court, uttered a 
 threat that he would enforce against the defendant an in- 
 valid order of the county court. The defendant was sub- 
 sequently arrested under a warrant issued upon the order. 
 It was the practice of the county court to give plaintiffs 
 a plaint note to the clerk of the court. It was held in an 
 action for false imprisonment against the plaintiff who uttered 
 the threat, that there was evidence to go to the jury, that he 
 was the person who sued out the warrant.^ Where process 
 is issued upon the complaint of a grand juror, the return 
 
 ' Brown v. Jones, 15 Mees. & W. 191; 3 Dowl. & L. 678; L. J. N. S. 210. 
 ' Cant V. Parsons, 6 Car. & P. 504. = Mason v. Barker, 1 Car. & K. 100, 
 
 * Akley v. Dale, 3 Prac. R. 433; 15 Jur. 1013; 30 L. J. C. P. 333. 
 
 * Trespass for assaulting and imprisoning the plaintiff. Plea that he was 
 wilfully Ijreaking down the defendant's fences, wherefore the defendant arrested 
 him and took him before a magistrate. Replication that the plaintiif broke the 
 fences in the bona fide assertion of a right of way ; without this, that he broke 
 them wilfully, or for any other purpose than in the exercise of his right of way. 
 Rejoinder tliat the plaintiif was wilfully committing damage and spoil to the 
 defendant's property. It was lield that proof of the existence of a right of 
 way over the locua in quo was properly received with a view to show the 
 character of tiie plaintifl''s act (Looker v. Ilalcomb, 4 Bing. 183; 13 Moore, 
 410).
 
 342 FALSE IMPRISOXMENT. § 381. 
 
 of tlie officer is prima facie evidence of an arrest under 
 such warrant, as well against the grand juror as against the 
 officer.-^ But when the defendant justifies under a^.^«, and 
 the plaintiff replies a detention after a bail bond given, an 
 actual arrest must be proved; proof of the execution of the 
 bail bond, coupled with the admission of the trespass in the 
 special plea, not being sufficient.^ 
 
 S 381. An alleo-ation in the usual form that the offense 
 was committed with force and arms, does not require proof 
 of actual violence.^ The gravamen of the action is the 
 unlawful interference with the person of the plaintiff. And 
 as the general rights of personal liberty are acknowledged 
 and secured by the law, an interference with them is pre- 
 sumed prima facie to be unlawful ; and the plaintiff has 
 only to prove the fact of such interference to put his ad- 
 versary upon the defense. The presumption that everything 
 which has been done has been rightly transacted, is en- 
 countered and rebutted by the presumption that an actual 
 interference with the person of an individual without his 
 consent, is wrongful. Upon proving such interference in an 
 action where that is the gravamen^ the plaintiff has proved 
 prima facie, all that he has alleged; and in order to justify 
 such an act, the other party must allege in pleading where 
 special pleading is required, and prove where general plead- 
 ing is allowed, all the circumstances necessary to show a 
 right thus to interfere.^ Immaterial allegations need not be 
 proved. Where a declaration which consisted of one count 
 averred that the plaintiff was imprisoned in a shop, a station- 
 house, and at a police office, and the only imprisonment was 
 in the shop, a verdict having been found for the plaintiff, 
 the court declined to order the verdict to be entered as 
 to part of the connt for tlje plaintiff, and as to the residue 
 for the defendant.^ So likewise, where in action for false 
 
 ' Allen V. Gray, 11 Conn. 95. '^ Reece v. GrifBths, 5 M. & R. 120. 
 
 = A'ite. 294. " Perry v. Buss, 15 N. Hamp. 222. 
 
 " Myers v. Goodchild, 8 Car. & P. 313.
 
 § 382. EVIDENCE. 343 
 
 imprisonment, the defendant pleaded that the plaintiff had 
 stolen feathers from a bed in a ready furnished bed room let 
 to him by the defendant, and that he therefore gave the 
 plaintiff into the custody of a policeman who, because the 
 plaintiff resisted, beat the plaintiff" and took him to a station- 
 house ; and there was no evidence either of any resistance 
 by the plaintiff, or of any blow given by the policeman, 
 but the other allegation was proved ; it was held that the 
 plea was sufficiently established.^ 
 
 § 382. The plaintiff may prove the animus of the de- 
 fendant in committing the act ; ^ and every circumstance is 
 admissible which accompanies and gives character to the 
 trespass.^ The plaintiff, the secretary of a joint stock bank 
 in London, with a bank at D., went with the cashier to the 
 latter place, with a paper purporting to be an order upon 
 the party having charge of the branch bank, to deliver up 
 to them the books and moneys in his custody. The de- 
 fendant, one of the directors of the bank, seeing a light in 
 the banking house at an unusual hour, went there, and not 
 being satisfied of their authority to act as they were doing, 
 placed the plaintiff and the cashier in the custody of a 
 policeman, who handcuffed them and put them in the cage 
 for the night. In an action for false imprisonment, evidence 
 that the defendant had on the following morning gone to 
 the banking house in London, broken open the desks of the 
 secretary and cashier, and abstracted papers, for the purpose 
 (as was suggested) of depriving them of the means of 
 justifying their conduct, was held to have been properly re- 
 ceived.^ * Conversations with, and threats'made to the plaint- 
 
 > Atkinson v. Wame, 6 Car. & P. 687. 
 " Brushaber v. Stegemann, 22 Mich. 266. 
 
 ' Colby V. Jackson, 12 N. Hamp. 526 ; Bracegirelle v. Orford, 2 M. «& S. 77 ; 
 WoodiiU V. McMillan, 38 Ala. 622. 
 
 * Edgell V. Francis, 1 Scott N. R. 118; 1 Man. & G. 222. 
 
 * In Edgell v. Francis, supra, the defendant having in mitigation of damages 
 called witnesses to prove that nearly all the money in the bank at the time of 
 the transaction was composed of his own balance, the plaintiff was ;)ermitted to 
 cross-examine them generally, as to the existence of bill transactions between 
 the defendant and the bank in Loudon, for the purpose of insinuating that
 
 344 FALSE IMPRISONMENT. §§ 383, 384. 
 
 iff by the defendant previous to the arrest, and statements 
 of the defendant after the arrest concerning his motives, are 
 admissible in evidence against him to show malice.^ 
 
 § 383. If the imprisonment be proved or admitted, the 
 burden of justifying it is on the defendant. Where, there- 
 fore, the defendant caused the plaintiif to be apprehended 
 under a justice's warrant, it was held that the plaintiff might 
 maintain the action without producing the warrant.^ So, 
 likewise, where in an action against an assessor of taxes, the 
 defendant admitted the imprisonment of the plaintiff, and 
 relied, in his defense, solely upon the tax warrant issued by 
 him and the other assessors, it was held that the burden of 
 proof was on the defendant to show that the whole town had 
 been districted territorially ; for unless that had been done, 
 the tax was illegal.^ "^ 
 
 § 384. For the justification of an arrest by an officer and 
 those acting in his aid, it is not necessary to give other evi- 
 dence than that furnished by the process of the court valid 
 on its face.^ In an action by A. and B., his wife, against C, 
 for the false imprisonment of B., C. justified under an execu- 
 tion against the plaintiffs for costs in a former action brought 
 by them against C, alleging the recovery of the judgment, 
 the issuing of the ca. sa., its delivery to the sheriff", and the 
 
 though the local balance was in the defentlaut's favor, the general balance might 
 be against hiiu. It was held this was no ground for a new trial; and the jury 
 having given 200/. damages, it was held not excessive. 
 
 '- Josselyu v. McAllister, 35 Mich. 45. 
 
 ^ Ilolroyd v. Lancaster, 11 Moore, 441 ; s. c. 3 Bing. 492. 
 
 ' Bassett v. Porter, 10 Cush. 418. 
 
 * Henry v. Lowell, 16 Barb. 268; Savacool v. Boughton, 5 Wend. 170. 
 
 * In a suit against two, a verdict in favor of one, rendered in a former action 
 brought i>y liim against the present plaintiff, is not evidence to establish oue of 
 several facts alleged in justification. In an action for assault and battery and 
 false imprisonment, brought by a sailor agaiust the master and mate of a vessel, 
 the defendants alleged in justification that the plaintiff destroyed a quantity of 
 cheese on board belonging to the mate, and also used insulting language to the 
 mate, and that he was thereupon confined in the run of the vessel. To prove the 
 destruction of the cheese, the defendants offered in evidence the record of a 
 ■court of competent jurisdiction in an action previously brought by the mate 
 against the sailor for the destruction of the cheese, in which judgment was ren-. 
 dered for the mate; but it was held that such record was not admissible (Ryer 
 y. Atwater, 4 Day, 431j.
 
 § 385. EVIDENCE. 345 
 
 arrest of B. tliereuncler. The plaintiffs replied, confessing 
 the recovery of the judgment and the issuing of the ca. sa.^ 
 de injuria sua ])ropria absque residuo causce. It was held 
 that, as the judgment and writ were admitted on the record, 
 upon the warrant and arrest of B. under it being proved by 
 the plaintiffs, the justification was made out without any evi- 
 dence on the part of the defendant.^ * If, however, an officer, 
 in making an arrest, resorts to extraordinary force, and the 
 excess be set up as a ground of recovery, he must show that 
 the force employed was no greater than the nature of the 
 case demanded. Where, in an action of trespass against the 
 sergeant-at-arms of the House of Commons, for foi'cibly, and 
 with the assistance of armed soldiers, breaking into the mes- 
 suage of the plaintiff (the outer door being shut and fastened), 
 and arresting him there, the defendant justified under the 
 speaker's warrant to arrest the plaintiff, a member of the 
 House, for a breach of privilege, to which there was a nevv^ 
 assignment of excess in using military force, it was held 
 that evidence of acts of violence of the mob committed in 
 parts adjacent, though out of view and hearing of the plaintiff 
 in his house, if they appeared to be connected with the same 
 purpose as actuated those about the plaintiff's house, might 
 be admitted to show the danger and difficulty of executing 
 the warrant by force against the plaintiff in his own house 
 without the aid and protection of the military,^ 
 
 § 885. Where, in an action against an ofiicer, the defend- 
 ant justifies under an execution issued by a justice of the 
 peace, the plaintiff will not be allowed to prove that the de- 
 fendant fraudulently served the original process. The judg- 
 
 ' Newton v. Boodle, 3 C. B. 795. 
 
 "" Burdett v. Coleman, 14 East, 163; 13 lb. 37. And see Burdctt v. Abbott, 
 5 Dow, 16 V, 14 East, 1; 4 Tfunt. 410. 
 
 * Where in an action against a sheriff for false imprisonment, lie justifies by 
 virtue of a State's warrant apiinst the plaintiff, a copy of the iudictin.'nt found 
 against the ])laintiff on the charge for which he was arrested is not admissible; 
 nor is the fact tliat an indictUK^nt was found against him admissible, if at all, 
 without proving tlie whole of the proceedings (McCully v. Malcom, 9 Humph. 
 187).
 
 346 FALSE IMPRISONMENT. §§ 386, 387. 
 
 meut could not be impeaclied in this collateral way. So far 
 as its validity is concerned, the return of the service of the 
 summons would be conclusive, except on a direct proceeding 
 to reverse the judgment for irregularity. The remedy of the 
 party injured would be either by action for a false return, or 
 by a writ of error.^ 
 
 § 380. Where several are charged, and a portion of the 
 imprisonment was committed before one of the defendants 
 was at all concerned in the transaction, that defendant must 
 be acquitted ; or else the evidence must be confined to what 
 took place after that defendant became implicated.^* If in an 
 action of trespass committed by three, with a count for false 
 imprisonment, the trespass is established against all, but the 
 imprisonment against only one, the plaintiff cannot abandon 
 the first trespass proved against all three, and go on with the 
 case as to the imprisonment by the one defendant only.^ 
 
 § 387. In an action against a private person for giving 
 the plaintiff into custody on a charge of felony, reasonable 
 and probable cause of suspicion is good evidence in mitiga- 
 tion of damages under the general issue.^ It was accordingly 
 held that the fact that the plaintiff, at and shortly before the 
 
 ' Allen V. Martin, 10 Weud. 300; Putnam v. Man, 3 lb. 202. 
 
 ° Aai'von V. Alexander, 3 Camp. 36. 
 
 ' Tait V. Plan-is, 6 Gar. & P. 73 ; 1 ,M. & Rob. 283. 
 
 * Sug-g V. Pool, 2 Stew. & Port. 196; Rogers v. Wilson, Minor, 407. 
 
 * If A. imprison B., and in continuation of that imprisonment deliver him 
 into the charge of C, who keeps him in custody, the acts and declarations of C. 
 are evidence against A. in an action for false imprisonment (Powell v. Hodgetts, 
 2 Car. & P. 433). 
 
 In an action against two persons for false imprisonment, a wit^ness for the 
 plaintiff stated that one of the defendants iiad said before a magistrate that he 
 was authorized by the other defendant. The judge told the jury that what one 
 defendant hud said was not evidence, and that they must not allow it to influence 
 their minds, but it was not possible to exclude it, because it was evidence against 
 the defendant who had uttered it. It was held that the caution given by the 
 judge to tlie jury removed all grounds of complaint as to the reception of the 
 statement (Peat v. Utterton, 3 Jur. 919). 
 
 Where on the trial of an action for assault and false imprisonment on a 
 charge of felony, the plaintiif's counsel asked his witness what was said by the 
 defendant when the parties were before the magistrate, it was held that the de- 
 fendant's counsel might ask on cross-examination what Vyas said by the magis- 
 trate (Richards v. Turner, 1 Car. & M. 411-).
 
 § 388. EVIDENCE- 347 
 
 arrest, was commonly believed to belong to a band of coun- 
 terfeiters in tlie neighborhood, might be proved, but that the 
 allegation that the plaintiff belonged to the band and had 
 passed counterfeit money knowingly and with intent to de- 
 fraud the public, must be specially pleaded.^ In Perkins v. 
 Vaughau,- a bill of exchange, purporting to be accepted by 
 A. B.. was presented to him by the defendant for payment, 
 upon which he said that the acceptance had been forged by 
 the plaintiff. Defendant and plaintiff, in company with a 
 policeman, afterward called upon A. B., and the defendant 
 asked him to repeat the charge, which, after some conversa- 
 tion with the plaintiff', he would not do. The plaintiif then 
 brought trespass against the defendant for false imprison- 
 ment. The pleas on the record were not guilty and the 
 facts. At the trial, A. B. was not called by tlie defendant, 
 but the conversation was given in evidence. The jury found 
 for the defendant generally. It was held, on motion for a 
 new trial, that the convei'sation was rightly received in evi- 
 dence as part of the 7'es gestce^ and also would have been 
 proper under the general issue in mitigation of damages (had 
 the verdict been for the plaintiff), although malice was not 
 the gist of such an action.* 
 
 § 388. The question of reasonable ground of suspicion in 
 actions for false imprisonment, is one of law ; ^ unless the 
 evidence out of which it arises is conflicting, in which event 
 it is the duty of the court to instruct the jury what facts, if 
 established, will constitute probable cause, and submit to 
 
 ' Wiisson V. Canfield, 6 Blackf.' 407. ' G Jur. 114, C. P. 
 
 = Hill V. Yates, 2 Moore, 80; Bulkeley v. Keteltas, 3 Seld. 384. 
 
 * It will be a justification for an arrest by a private person for felony, that 
 the evidence of the guilt of the accused preponderated; and the defendant may 
 justify the firing of a gnu at tlie accused by proof of its necessity (Lander v. 
 Alilis, ;J Oreg. \)n). Where a plea of justification in such a case states that the 
 plaintiif coaunitted the felony, the jury must try tliat question in the same way 
 HS if they were sitting in tlie criminal court trying the plaintiff for the offense 
 itself; and if a witnej-s, who admits tiiat he stole similar property at the same 
 -time, be called to sustain the plea, though he is not ex;'.ctly in the situation of 
 an accomplice, yet it seems that his testimony ought to receive some confirma- 
 tion (Kiciiards v. Turner, supra).
 
 348 FALSE IMPRISONMENT. § 389. 
 
 tliem the determination of sucli fkcts.^ In West v. Baxen- 
 dale,^ a plea justifying the apprehension of the plaintiff on 
 suspicion of felony, set out various circumstances of sus- 
 picion, and amongst others, stated a conversation alleged to 
 have been had by the plaintiff with A. At the trial, the 
 whole of the plea was proved, except that the conversation 
 alleged to have been had by the plaintiff with A. was had 
 with B. The defendant applied to the judge to amend the 
 plea, by inserting therein the name of the right person, which 
 was refused. In leaving the case to the jury, the judge told 
 them that they must exclude from their consideration the 
 statement as to the conversation Avith A., and say whether 
 the facts which were proved, and w^hicli were known to the 
 defendant at the time he caused tha plaintiff to be appre- 
 hended were sufficient to cause a reasonable and cautious 
 man, acting hona fide and without prejudice, to suspect the 
 plaintiff of the offense charged. It was held a misdirection, 
 inasmuch as it was leaving to the juiy what it was the prov- 
 ince of the judge to determine, and that the amendment was 
 one which mio'ht have been made upon terms. 
 
 § 389. A reasonable ground of suspicion, induced by cir- 
 cumstances sufficiently strong to lead a cautious person to 
 believe that the charo-e made was true, would constitute 
 probable cause. In an action for false imprisonment, it ap- 
 peared that the plaintiff" was arrested upon the charge of 
 being about to remove his property with intent to defraud 
 his creditors, and as especially intending to defraud the de- 
 fendant. The evidence upon which the order for the arrest 
 was granted, was the affidavit of a third party, to the effect 
 that the plaintiff said — when informed by the party making 
 the affidavit of the defendant's intention to brinof a suit 
 against him to recover damages for the breach of the agree- 
 ment — that if the suit ^vas brought, he would take good care 
 and put his means in such a shape that the defendant would 
 get nothing by it ; that he would send his means to a mer- 
 
 ' Burns v. Erben, 40 X. Y. 463. ^ 9 C. B. 141; 19 L. J. C. P. 149.
 
 § 390. EVIDENCE. 349 
 
 chant ill England, a person known to the plaintiff. On a 
 motion for the discharge of tlie arrest, the plaintiff explained 
 what he meant by this remark, and the jndge, in view of the 
 explanation, and from the additional consideration that the 
 action was one in which nominal damao;es alone could be re- 
 covered, granted the motion. It further appeared that the 
 defendant admitted that the plaintiff had told him that he 
 was indebted to certain persons in England ; that a part of 
 the funds which he had (eight or nine thousand dollars), he 
 had obtained from them, a part for two or tliree years, and a 
 part for live years; and the plaintiff, in his sworn answer, 
 stated that he informed the defendant that lie, the j)laintift', 
 had $10,000 of his own money, and relied on his friend for 
 $10,000. It was held that the foregoing facts did not make 
 out a want of probable cause.^ '^' 
 
 § 890. The defendant, in his evidence in mitigation of 
 exemplary damages, should not be confined to matters which 
 transpired at the very time of the alleged wrong.- In an 
 action for giving the plaintiff in charge to a police officer, the 
 defendant may go into evidence to show that the plaintiff 
 had, for, several days, 1)een in the habit of going after him 
 
 ' Gordon v. Upham, 4 E. D. Smith, 9. " Prentiss v. Shaw, 56 Maine, 437. 
 
 * In this case, the court said : "If the defendant had a claim that would en- 
 able him to maintain the action, he is to be regarded as a creditor, no matter 
 what amount of damages he might recover; and it cannot be presumed, merely 
 because he did not prosecute the action, or suffered it to go by default, that he 
 had uo such claim. * * * -pjjg plaintiff's declaration was one that may and 
 would naturally have induced the belief that he intended to dispose of his prop- 
 ert}', so as to prevent the defendant from collecting anything by a judgment, if 
 he should obtain one. It was sutBcieut to warrant the suspicion that he intended 
 to do so." 
 
 In Miles v. Weston, GO 111. 361, it was proved that on the night the plaintiff 
 was arrested, two men had been seen in front of the defendant's house ; that 
 when any one came near, they would separate and then meet again ; that they 
 did this an hovir and a half; that the defendant, becoming alarmed, obtained 
 two policemen ; and that as the plaintitr gave no account of himself, but ad- 
 mitted tliat he had been there two houis, one of the policemen arrested him, 
 and witliout any direction from the defendant as to what should be done v/ith 
 liim after the arrest, lie was taken by the officer to the station. The plaintiff' 
 testified on the trial that he had been at the place in question but one or two 
 minutes. It was lield that the plaintiff's own declaration that he had been tliere 
 two hours, was sufficient to cause the officer to believe him to be one of two 
 night walkers who had been seen liangiug about the defendant's house, and tliat 
 it ought to go far under the other circumstances of the case in mitigation of 
 damages, if not to justify the arrest.
 
 350 FALSE IMPKISOXM'JJXT. § 391. 
 
 and annoying liim.^ It may properly be submitted to the 
 jury to find whether the defendant, in causing the arrest of 
 the plaintiff, was actuated by a regard for public justice, or 
 desire that a supposed offender should be punished, or in- 
 tended to make use of criminal proceedings for his private 
 benefit, to coerce from the plaintiff or his friends the pay- 
 ment of money.^ A statement which is averred in a plea 
 of justification to have been made to A., but which was in 
 fact made to B., is admissible to show that the defendant 
 acted with proper motives.^ ^ A military order which does 
 not amount to a justification, may be given in evidence in 
 mitigation of damages.* Although it will not be a defense 
 that the defendant acted under the advice of counsel,^ vet it 
 has been held that the inexperience of the attorney who 
 advised and instituted the proceedings may be proved in 
 mitiofation of damaoces.® f 
 
 22. Damages. 
 § 391. Exemplary damages are only proper when the 
 
 ' Thomas v. Powell, 7 Car. &P. 807. = Grinnell v. Stewart, 32 Barb. 544. 
 
 ' West V. Baxendale, 9 C. B. 141 ; 19 L. J. 9. P. 149. 
 
 * Carpenter v. Parker, 23 Iowa, 450, " Josselyn v. McAllister, 22 Mich. 300. 
 
 * Mortimer v. Thomas, 23 La. Ann. 165. 
 
 * In trespass for false imprisonment on a criminal charge, the defendant 
 cannot cross-examine as to the bad character of the plaintiff, nor as to previous 
 charges made against him (Downing v. Butcher, 2 M. & Rob. 374). 
 
 In an action for causing the plaintiff to be arrested on a charge of stealing 
 oysters from an oyster bed, it was held that the defendant could not, in order 
 to prove good faith on his part, prove the prior conviction of a third party for 
 stealing oysters from the same bed, such conviction not having come to the de- 
 fendant's knowledge at the time of causing the plaintiff's arrest (Thomas v. Rus- 
 sell, 25 Eng. L. & Eq. R. 559). 
 
 t Although evidence which ought not to have been allowed, be admitted; 
 yet if u be afterward stricken out, and the jury instructed to disregard it, the 
 verdict, if sustained by the other evidence in the case, will not be disturbed. 
 Ill ]\"an("eville v. Guernsey, 51 Barb. 99, which was an action for assault and 
 battery and false imprisonment, improper evidence was admitted against the ob- 
 jecuon of the defendant; but afterward, and before the testimony was closed, 
 the judge, of his own motion, ordered the evidence to be struck out. and directed 
 the jury to disregard it. The defendant insisted that the error was not cured 
 thereby, as the evidence might have had an influence upon the minds of the 
 jury. It was held that if the verdict could not be supported except by tlie evi- 
 dence in question, the error would be fatal; but that as the questions of fact 
 which were submitted to the jury were found in the plaintiff's favor, he was en- 
 titled to recover.
 
 §§ 302, 303. DAMAGES. 351 
 
 wrong was committed from a bad motive.^ '"' Where tLe 
 defendants, acting under the advice of counsel, erroneously 
 caused the plaintiff to be arrested under a writ of ne exeat, 
 it was held not to furnish evidence of malice or wilful mis- 
 conduct on the part of the defendants, so as to entitle the 
 plaintiff to exemplary damages. And the same was held as 
 to a telegraiihic dispatch afterward sent to the judge re- 
 questing him not to vacate the writ, or discharge the plaint- 
 iff from arrest, until a hearing could be had ; and also as to 
 the statement of the defendants, in their depositions, that 
 they were displeased when they heard of the plaintiff's dis- 
 charge, and did not approve of the action of the judge in 
 discharging him.^ 
 
 § 392. But although the false imprisonment was not 
 malicious, yet the plaintiff is entitled to damages for loss 
 of time, interruption of business, and bodily and mental 
 suffering;'^ and he may recover more than nominiil damages, 
 without alleging or proving special damage.* Where it was 
 proved that the plaintiff was arrested for refusing to testify 
 under a void complaint, that he was taken in charge by the 
 sheriff at the jail, but was not locked in the cell in which 
 he slept, being allowed to visit the rooms of the sheriff, and 
 only prevented from leaving the jail-yard, it was held error 
 in the court to instruct the jury that the plaintiff' could only 
 recover nominal damages sufficient to pay him for his loss of 
 time in consequence of the arrest.^ 
 
 § 393. Althou2;h the inconvenience and suffering; raav 
 have ])een slight, yet if the wrong was accompanied by per- 
 sonal insult, or by a false charge of a violation of law, exem- 
 
 ' McCall V. McDowell, 1 Abb. U. S. 213. 
 
 ' Bonesteel v. Bonesteel, 30 Wis. 511. ' Parsons v. Harper, 16 Gratt. 64. 
 
 * Josselyn v. McAllister, 32 Mich. 300. '•' Page v. Mitchell, 13 Mich. 63. 
 
 * Where, in an action for false imprisonment against a private person, in 
 making an arrest upon strong grounds for suspecting larceny, under circum- 
 stances which, though they did not justify the defendant, would have Justified 
 an officer, a verdict of $3,000 was set aside as excessive (Reuck v. McGregor, 3 
 Vroom, 70)
 
 352 FALSE IMPRISONMENT. § 394. 
 
 plary damages may be recovered.^ Accordingly, wliere the 
 defendant pleaded that the plaintiff had committed a felony, 
 bnt at the trial his counsel abandoned the ]:)lea and exonerated 
 the plaintiff from the charge, it was held that the putting 
 such a plea on the record ought to be taken into considera- 
 tion by the jury in estimating the damages.^ 
 
 § 394. The plaintiff is entitled to be allowed for what he 
 has been compelled to pay by the wrongful act of the defend- 
 ant. Where a party, who had been committed to jail for 
 manslaughter b}'- a coroner's warrant, and afterward admitted 
 to l^ail, subsequently got the inquisition quashed, it was held, 
 in an action by him against the coroner for false imprison-' 
 ment, alleging as special damage that he had been obliged to 
 pay money to procure his discharge, that he might recover 
 the costs of quashing the inquisition.^ '^ So, likewise, where 
 a party vv'as committed for the non-payment of a penalty in a 
 case where the magistrate had no jurisdiction, and after a 
 part of the imprisonment, he was discharged on the penalty 
 being paid, it was held, in an action for false imprisonment 
 against the magistrate, that the jury might include the 
 amount of the penalty in the damages, if they were satisfied 
 that the plaintiff paid it, or that it was paid in such a way 
 that the plaintiff" was liable to repay the amount to the per- 
 son who actually advanced the money.'* f In a recent case in 
 
 ' Fellows V. Goodman, 49 Mo. 62 ; Bauer v. Clay, 8 Kansas, 580. 
 ■' Warwick v. Foulkes, 12 Mees. & W. 507; 1 Dowl. & L. 638; 13 L. J. K S. 
 109. 
 
 ' Foxhall V. Barnett, 22 L. J. N. S. Q. B. 7; 18 Jur. 41. 
 
 * Mason v. Barker, 1 Car. & K. 100. 
 
 * In Foxhall v. Barnett, s^iprn. Lord Campbell, C. J., said: "If the plaintiff 
 had been discharged on habeas co7']n/s, instead of being admitted to bail, and had 
 afterwards got the inquisition quashed. I should have thought that he could not 
 have included the cost of quashing in his damages, according to Holloway v. 
 Turner (6 Q. B. 92S). But here, he was only released from prison upon his giv- 
 ing bail to appear and take his trial. He was still liable to surrender on his re- 
 cognizances, and was not a perfectly free man until he had got rid of the inqui- 
 sition. By doing that, he was restored to his original state ; but until then, the 
 effects of the wrongful imprisonment were not done away. Therefore, this is 
 damage which flows from the wrongful act of the defendant, and the plaintiff is 
 entitled to retain his verdict for the full amount given." 
 
 t A rule having been obtained for discharging a party illegally arrested, it 
 was referred l)y the court to a judge at chambers, who ordered the applicant to
 
 § 395. DAMAGES. 353 
 
 Wisconsin, the plaintiff alleged, as special damage, that he 
 was obliged to employ counsel to procure his release from 
 imprisonment, at an expense of sixty dollars ; and it was held 
 that such special damage might be allowed, although it was 
 not shown that the counsel fee and expenses had actually 
 been paid by the plaintiff.^ But to entitle the plaintiff to 
 recover for such- loss, he must show that it resulted from the 
 injurious act. Accordingly, in an action for assault and im- 
 prisonment for one night, brought by a ship's passenger 
 against the captain, it was held that, in order to entitle him 
 to recover the 100^. which he paid for his passage home in 
 another vessel, he must prove that he had reasonable ground 
 to fear a- renewal of the ill treatment, and that he left the 
 vessel under the influence of such fear,^ '^ 
 
 § 395. Where it appears that the plaintiff', previous to 
 bringing the action, accepted without objection a small sum 
 in satisfaction, and the jury find a large amount of damages, 
 the verdict will be set aside. A beggar, having refused to 
 quit the defendant's premises, the defendant had him arrested, 
 and he remained in custody one night at an inn, and was 
 taken before the defendant the next morning, when he de- 
 be discharged, and offered to give him the costs of his application, if he would 
 undertake to bring no action for the arrest; but, on his refusal, made no order 
 about costs. An action for trespass and false imprisonment was afterward 
 brought, laying, among other things, as damage, that the plaintiff had been 
 obliged to pay, and had paid, a large sum of money in order to procure his dis- 
 charge. There was no distinct evidence of payment of the money by the plaintiff 
 to his attorney. It was held, first, that the plaintiff was entitled to recover his 
 costs as special damage in this form of action; but, secondly, that, as the declar- 
 ation alleged actual payment of them by him, he could not recover that part 
 which he had not paid, but so much only as had been advanced on his account 
 by his attorney, as so much money paid by himself through an agent (Pritchet 
 V. Boevy, 1 C. & M. 775 ; 3 Tyr. 949). Semlle, that, had the count only alleged 
 that the plaintiff had been forced and obliged and became liable to pay damao-es 
 for such liability to his attorney, he might have then recovered. 
 
 ' Bonesteel v. Bonesteel, 30 Wis. 511. ^ee post, § 624. 
 
 ' Boyce v. Bayliffe, 1 Campl:). 58. 
 
 * In Boyce v. Bayliffe, supra, it is said to have been held that, in an action 
 for false imprisonment, with an allegation that the plaintiff thereby lost a lieu- 
 tenancy, he could not recover for the loss, because it was remote. The same is 
 stated in 1 Chitty's Pleading, 440. 
 
 The obligor in a void bail bond, in his action for false imprisonment, is not 
 entitled to damages for remaining in the county, according to the terms of the 
 bond (Fuller v. Bowker, 11 Mich, 204). 
 Vol. I.— 33
 
 354 FALSE IMPRISONMENT. § 396. 
 
 manded compensation, and the defendant told him he might 
 have two sovereigns or go before a justice, and the plaintiff 
 consented to take the money, but said at the same time that 
 he must have something for the keep of his horse, and the 
 defendant then gave him half a crown, and directed the but- 
 ler to give him some refreshment, and the butler did so, and 
 the plaintiff went away, and then brought an action against 
 the defendant, and recovered 100^. ; it was held that the 
 damao-es were excessive, on account of the lim't which the 
 plaintiff himself had put on his demand in the first instance. 
 Tindal, C. J., said : " It seems to me, that if accord and satis- 
 faction had been pleaded, it would have been a bar to the 
 action. A verdict of 100/. is far beyond the merits, as we 
 cannot but see on the evidence of the plaintiff himself, who 
 has set the measure on his own damages." ^ * 
 
 § 896. When two persons are jointly sued for false im- 
 prisonment, one of whom has acted from improper motives, 
 the damages ought not to be assessed with reference to the 
 act and motives of the most guilt.y or the most innocent 
 party. The true criterion of damage is the whole injury 
 which the plaintiff' has sustained from the joint act of tres- 
 pass.^ A single act of trespass committed by an agent can- 
 not be multiplied by the number of principals who procured 
 it to be done ; but the party injured is only entitled to com- 
 pensation for the damages actually sustained. Where, there- 
 fore, several different creditors sued out as many different 
 writs separately against their debtor, without any intention 
 to act in concert, or knowledge that they were so acting, and 
 the same oflicer served all of the v^rits at the same time, by 
 arresting the debtor and committing him to jail, it was held 
 that the creditors were joint trespassers, and that satisfaction 
 received by the debtor from one of them would bar an action 
 by him against the others.^ 
 
 ' Price V. Severne, 7 Bing. 316. " Clark v. Newsam, 1 Exch. 131 ; 16 L. J. 297. 
 
 ' Stone agst. Dickinson, 5 Allen, 29. 
 
 * Where a motion for a new trial, on account of excessive damages, in an ac- 
 tion for false imprisonment, is overruled, the judgment will not be reversed, un- 
 less the damages" are flagrantly excessive (Webber v. Kenny, 1 A. K. Marsh. 345).
 
 BOOK III, 
 
 TRESPASS IN RELATION TO PERSONAL PROPERTY. 
 
 CHAPTER L 
 
 TITLE TO PERSONAL PROPERTY. 
 
 1. Property in wild anirftals. 
 
 2. Property in goods where their character has been changed. 
 
 3. Property in goods by accession. 
 
 4. Confusion or intermingling of goods. 
 
 5. When owner of goods estopped fvom asserting title to them. 
 
 6. When property in goods vests in trespasser. 
 
 7. Property made chattels by agreement. 
 
 8. General rule as to fixtures. 
 
 1. Property in loild animals. 
 
 § 397. The principles of law governing this species of 
 property are so familiar, that but little need be said on th^ 
 subject here. We may however be permitted to observe 
 that animals fercB naturce, when reclaimed by the art and 
 power of man, are the subject of a qualified property ; that 
 if they return to their natural liberty and wildness without 
 the animus 7^evertendi^ it ceases ; but that during the exist- 
 ence of the qualified property, it is under the j)rotection of 
 the law, the same as any other property, and every invasion 
 of it, redressed in the same manner. The Bishop of London 
 having granted to a person a lease of land for a term of 
 years, excepting the trees, and the herons and shovellers 
 making their nests in the trees, the tenant during the lease, 
 took some of the herons. In an action of trespass brought 
 by the bishop against him, it was held that the plaintiff 
 was entitled to recover the value of the herons, he having a 
 qualified property in them, by reason of the trees in which 
 they built.^ 
 
 ' Bishop of London's Case, 14 Hen. 8, f. 1.
 
 35G TITLE TO PERSONAL PEOPEETY. § 398. 
 
 § 308. Deer in a park, rabbits in a warren, or fisli in 
 private ponds or tanks, are it is said, the property of man 
 no longer than wliile they continue in his keeping or posses- 
 sion. Mauucaptiire is not necessary to acquire, much less to 
 continue, possession of this property. If a deer, or any 
 wild animal reclaimed, has a collar or other mark put upon 
 him, and goes and returns at pleasure, it is not lawful for 
 any one else to take him ; though if he be long absent with- 
 out returning, it is otherwise. In all these cases of wild 
 animals reclaimed, the property is not absolute, but de- 
 feasible by the animals resuming their ancient wildness ; as 
 if the deer escape from the park, or the iish from the pond 
 or tank, and are found at large in their proper element, they 
 become ferae naturce again, and are free to the first occupant 
 that may seize them. But while they continue the owner's 
 qualified property, they are under the protection of the law, 
 as much so, as if they were absolutely and indefeasibly his ; 
 and an action will lie for any injury committed. It is clear 
 from the principles above mentioned, that the right to 
 appropriate property of the descrij^tion in question, does 
 not depend exclusively upon the place where they are 
 found, but upon the fact that they are ferce natiiroe un- 
 reclaimed. For though the deer should be found browsing 
 in his own forest, and the pigeon flying in the air, or any 
 of the class reclaimable at large, if they have been in fact 
 domesticated, and possess the animus revertendi, they are 
 not common property, and the occupant who takes them 
 gets no title ; and if he takes them knowing their condition, 
 he becomes a trespasser.^ If a person interferes with an- 
 other who is trying to catch fish, the latter before he has got 
 the fish into his power or under his dominion and control, 
 has no right of property in or title to the fish, although, 
 excepting for such interference, he would have secured them. 
 Where the plaintiff, while fishing, had nearly surrounded 
 with a net, a multitude of fish, and would have taken all of 
 
 ' Bro. Abr. Property, PL 4 ; Hadesden v. Grvssel, Cro. Jac. 195 ; Rigg v. 
 Lonsdale, 1 IJ. & N. 023.
 
 §§ 399, 400. PROPERTY IN WILD ANIMALS. 357 
 
 them, but for the defendant, who came with boats and men, 
 and drove the fish into his own nets and captured them, it was 
 held that the plaintiff had no right to the fish, as he had 
 never had them under his dominion and control, but that he 
 ouo-ht to have brouo^ht an action ao-ainst the defendant for 
 interfering w^ith his nets, and unjustifiably preventing the 
 plaintiff from exercising his occupation, and calling of a 
 fisherman and catching the fish.^ * 
 
 § 399. It has been said, that if A. start game on the 
 grounds of B. and kill it there, it belongs to B. ; the property- 
 arising ratione soli ; but that if he pursue it on to the land 
 of C. and there kill it, it belongs to the hunter ; though he 
 will be liable to an action of trespass at the suit as well of 
 B. as of C. for hunting on their grounds.^ 
 
 § 400. Bees are ferce naturce, but, when hived and re- 
 claimed, a person may have a qualified proj)erty in them by 
 the law of nature, as well as the civil law. Occupation, that 
 is, hiving or enclosing them, gives property in them. They 
 are now a common species of property, and an article of 
 trade ; and the wildness of their nature, by experience and 
 practice, has become essentially subjected to the art and 
 power of man. An unreclaimed swarm, like all other wild 
 animals, belongs to the first occupant ; in other words, to the 
 person who first hives them. But if a swarm fly from the 
 hive of another, his qualified property continues so long as 
 
 • Young V. Hitchens, 6 Q. B. GOG. 
 
 ■ BI. Com. V. 2, p. 419: Sutton v. Moody, 1 Ld. Raym. 250; 2 Salk. 55Q; 
 Churchward v. Studdy, 14 East, 249. 
 
 =•= In Littledale v. Scaith, 1 Taunt. 243, n. a., which was an action of trover 
 for a whale which had been struck by a harpooner of the plaintiff's ship, it was 
 agreed that the law, both by the custom of Greenland, and as settled by former 
 determinations at Guildhall, London, was as follows: while the harpoon remains 
 in the fish, and tiie line continues attached to it, and also continues in the 
 power or management of the striker, the whale is a fast fish; and though 
 during that time, struck by a harpooner of another ship, and though she after- 
 ward breaks from tlie first harpoon, but continues fast to the second, the second 
 harpoon is caUed a friendly harpoon, and the fish is the property of the first 
 striker. But if the first harpoon or line breaks, or the line attached to the 
 liarpoon is not in the power of tlie striker, the fish is a loose fish, and will 
 become the i^roperty of any other person who strikes and obtains it.
 
 358 TITLE TO PERS01<rAL PROPERTY. § 401. 
 
 lie can keep them in sigbt and has power to pursue them.^ * 
 A man's finding bees in a tree standing upon another man's 
 land, gives him no right either to the tree or the bees.^ 
 Where bees, which have been reclaimed, occupy a tree on 
 the land of another, and the owner of the land cuts the tree 
 down, destroys the bees, and takes the honey, an action of 
 trespass therefor may be maintained against him by the 
 owner of the bees, although the latter cannot enter upon the 
 land to retake the bees without subjecting himself to an 
 action of trespass.^ 
 
 2. Property in goods where their cJtaracter has heen changed. 
 
 § 401. Where a person takes away an article belonging 
 to another, without authority, and alters or improves it, he 
 cannot lawfully detain it from the owner until his alterations 
 and improvements have been paid for. If my carriage, with- 
 out any authority from me, is sent to a coach-maker to be 
 repaired or painted, 1 have a right to the possession of it, 
 without paying for the repairs or painting.^ Materials de- 
 livered to a person for the purpose of being manufactured, 
 still continue the property of the original owner, although 
 their nature and character be essentially altered by tlie 
 process, and their value largely increased. In such cases 
 there is no contract of sale and no act done which divests the 
 property of the original owner. It is merely a contract be- 
 tween a principal and an agent, or employer and employee, 
 the former having the title to the property, and the latter a 
 claim to compensation foi' his labor. The mode in which this 
 compensation is j^aid, whether by a right to sell on the part 
 
 ' GofifT. Kilts, 15 Wend. 550. 
 
 ^ Menils v. Goodwin, 1 Root, 209; Gillet v. Mason, 7 Johns. 16. 
 
 ' Gofl'v. Kilts, supra. * Hiscox v. Greenwood, 4 Esp. 174. 
 
 * Blackstone (2 Com. 293) inclines to the opinion that, mider the Charter of 
 the Forest, allowing every free man to be entitled to the honey found within his 
 woods, a qualified property may be liad in bees, in consideration of the soil 
 whereon they are found, or an ownership ratione soli. According to the civil 
 law (Just. Inst. Lib. 2, Tir. 1, s. 14), bees which swarm upon a tree are not 
 private property until actually hived, and he who lirst encloses them in a hive 
 becomes their proprietor.
 
 § 402. PROPERTY IN ALTERED GOODS. 359 
 
 of the agent and to deduct it from the proceeds, or by a 
 direct payment of it by the principal, is immaterial. In 
 either case the title to the property remains unchanged.^ 
 
 § 402. By the civil law, personal property must have 
 been taken away in ignorance of its being the property of 
 another, and be changed into a different species, before the 
 owner could lose his title. A wilful wrong-doer acquired no 
 property in the goods, either by the wrongful taking, or by 
 any change wrought in them by his labor or skill. In the 
 digest of Justinian ^ it is said : " If any one shall make wine 
 with my grapes, oil with my olives, or garments witli my 
 wool, knowing they are not his own, he shall be compelled 
 by action to produce the said wine, oil, or garments." So, in 
 Vinnius' Institutes : '^ " He who knows the material is an- 
 other's, ought to be considered in the same light as if he had 
 made the species in the name of the owner, to whom also he 
 is to be understood to have given his labor." The same 
 principle is stated by Puffendorf, in his Law of Nature and 
 of Nations, and in Wood's Institutes of the Civil Law.* 
 
 ' Eaton V. Lvnde, 15 Mass. 242; Stevens v. Briggs, 5 Pick. 177; Mitcliell v. 
 Stetson, 7 Cusli!! 435. 
 
 = Lib. 10, Tit. 4, Leg. 13, § 3. ' Tit. 1, PI. 25. 
 
 * In PutTenciorf s Law of Nature and of Nations, Booli 4, cli. 7, § 10, it is 
 laid down tliat, " In all cases it is to be inquired whether the person who be- 
 stows a shape on another's matter, doth it with au honest or with a dishonest 
 design. For he who acts thus, out of a knavish principle, can by no means 
 pretend that the tiling belongs to him, rather than to the owner of the matter — 
 thou<;h all the former reasons should concur — that is, though the figure should 
 be the most valuable; though the matter should, as it were, be lost and swal- 
 lowed up in the work; and though he should be in very great want of what he 
 had tiius compacted. For the greater part of the two doth not draw to itself 
 the less, Ijareiy by its own virtue or on its own account; but there is required 
 farther some probable ground and plea in the owner of that part which exceeds, 
 on which he may build his claim. Hence, if a man. out of wilful and designed 
 fraud, puts a new sliajie on my matter, that he may. by this means, rolj me of it, 
 he neitlier gains any right over the matter by this act, nor can demand of me a 
 reward for his labor, any more tlian a thief who digs through ray walls can 
 claim to be paid for his great trouble in making a new door into my house; or 
 than one that breaks an impostluunc, otherwise incurable, with a blow that he 
 designed for my death; or than Autolycus could have asked a price for painting 
 the horses which he first stole. And all this doth not proceed from any positive 
 constitutions, but from the very dictate and ap])ointment of natural reason, 
 thougii nature dotli not determine any particular penalty in the case. For to 
 have exercised such a villainy gratis is not properly a punishment; and, on the
 
 360 TITLE TO PERSONAL PROPERTY. § 403. 
 
 § 403. The common law rule seems to have been borrowed 
 from the Roman law at an early day, at a period when the 
 common law furnished no rule whatever in a case of this 
 kind. Bracton, in his treatise, compiled in the regn of Henry 
 III, adopted a portion of Justinian's Institutes on this sub- 
 ject, without noticing the distinction between an innocent 
 taker and a wilful wrong-doer. And Blackstone,^ in stating 
 what the Roman law was, follows Bracton. * In England, 
 
 other hand, it is most just and reasonable that I should not be obliged to pay a 
 man wages for endeavoring to do me a mischief." 
 
 Wood (lust, of Civil Law, p. 92) states the doctrine on the subject thus : 
 '* He that made the new species shall be master of the whole if it cannot be re- 
 duced to its first state and condition ; as when one shall press wine from your 
 grapes, or build a ship from your timljer, you cannot claim the wine or the ship. 
 But this determination only takes place in favor of the workman, where the 
 work was designed for his own use, and where he erroneously and by mistake 
 thought the matter was his own. For if it was intended for the use of another, 
 it is his upon the same terms for whose use it was making. And if it is 
 known that the grapes and timl)er are another's, and yet thereof he proceeds to 
 make his wine or ship, he shall lose his labor and workmanship. The whole 
 shall accrue to the owner, and an action may be maintriued against him." 
 
 In Bown's Civil and Admiralty Law, p. 240, the civil law is stated to be that 
 the original owner of anything improved by the act of another, retained his 
 ownership in the thing so improved, unless it was changed into a different 
 species; as if his grapes were made into wine, the wine belonged to the 
 maker, who was only obliged to pay the owner for the value of his grapes. The 
 species, however, must be incapable of being restored to its ancient form ; and 
 the materials must have been taken in ignorance of their being the property of 
 another. 
 
 ' 2 BI. Com. 404, 405. 
 
 * The authorities to which Blackstone refers in support of his text are three 
 only. The first in Brookes' AL-ridgment, Tit. Property, 23, is the case from the 
 Year Book, 5 H. 7, fol. 15, in which the owner of leatlier brought trespass for 
 taking slippers and boots, and the defendant pleaded that he was the owner of 
 the leather, and bailed it to J. S.,who gave it to the plaintiff, who manufactured 
 it into slippers and boots, and the defendant took them, as he lawfully might. 
 The plea was held good, and the title of the owner of the leather unchanged. 
 The second reference is to a case in Moore's Reports, p. 20, in which the action 
 was trespass for taking timber, and the defendant justified on the ground that 
 A. entered on his land and cut down trees and made timber thereof, and carried 
 it to the place where the trespass was alleged to have been committed, and after- 
 ward gave it to the plaintiff, and that the defendant therefore took the timber, 
 as he lawfully might. In these cases, the chattels had passed from the hands of 
 the original trespasser into the hands of a third person. In ])oth, it was held 
 that the title of the original owner was unchanged, and that he had a right to 
 the property in its improved state, against the third person in possession. They 
 are in conformity with the rule of the civil law. The third example which is 
 from Popham's Reports, p. 38, was a case of confusion of goods. The plaintiff 
 voluntarily mixed his own hay with the hay of the defendant, who carried the 
 whole away, for which he was sued in trespass, and it was adjudged tliat tlie 
 whole should go to the defendant. Blackstone refers to this case in support of 
 his text that "our law to guard against fraud gives the entire property, without 
 any account, to him whose original dominion is invaded, and endeavored to be
 
 § 403. PROPERTY IN ALTERED GOODS. 3GI 
 
 the decisions on tlie general subject commenced as early as 
 the Year Book, 5 H. 7, folio 15 ; and it was held, after argu- 
 ment on demurrer, that whatever alteration of form any 
 property had undergone, the owner might seize it in its new 
 shape if he could prove the identity of the original materials. ^' 
 According to the rule thus established, if the wrong-doer en- 
 hances the value of the chattel by labor and skill bestowed 
 upon it— as by sawing logs into boards, splitting timber into 
 rails, making leather into shoes, or iron into bars, or into a 
 tool — the manufactured article still belongs to the owner of 
 the original material, and he may retake it, or recover its im- 
 proved value in an action for damages, and the rule holds 
 good against an innocent purchaser from^ the wrong-doer, 
 although the value may have been increased by the labor of 
 the purchaser. If, however, a chattel wrongfully taken after- 
 ward goes into the hands of an innocent holder who, believing 
 himself to be the owner, converts the' chattel into a thing 
 of a different species, so that its identity is destroyed, the 
 original owner cannot reclaim it, but is put to his action for 
 
 rendered uncertain without his own consent." The civil law in such a case 
 would have required him who retained the whole of the mingled goods to ac- 
 count to the other for his share (Just. Inst. Lib. 2, tit. 1, § 38) ; and the common 
 law, in this respect, seems to be more rigorous than the civil law. 
 
 * "-There is great confusion in the books upon the question what constitutes 
 change of identity. In one case (5 Hen. 7, fol. 15), it is said that the owner 
 may reclaim the goods so long as they may be known, or in other words, ascer- 
 tained by inspection. But this, in many cases, is by no means the best evidence 
 of identity, and the examples put by way of illustration serve rather to disprove 
 than to establish the rule. The court say that if grain be made into malt it can- 
 not be reclaimed by the owner, because it cauuot be known. But if cloth be 
 made into a coat, a tree into squared timber, or iron into a tool, it may. Now 
 as to the cases of tlie coat and the timber, they may or may not be capable of 
 identification by the senses merely, and the rule is entirely uncertain in its ap- 
 plication; and as to the inm tool, it certainly cannot be identified as made of the 
 original material, without other evidencp. This illustration, therefore, contra- 
 dicts the rule. In another case (Moore's R. 20), trees were made into timber, 
 and it was adjudged that the owuer of the trees might reclaim thettimber, 'be- 
 cause the greater part of the substance remained.' But if this were the true 
 criterion, it would embrace the cases of wheat made into bread, milk into 
 cheese, grain into malt, and others, which are put in the books as examples of a 
 change of identity. Other writers say that when tlie thing is so changed that it 
 cannot be reduced from its new forni to its former state its identity is gone. 
 But this would include many cases in which it has been said by the courts that 
 the identity is not gone, as the case of leather made into a garment, logs into 
 timber or boards, cloth into a coat," &c. (Ruggks, J., in Siltbury v. McCoon, 3 
 N. Y. R. 379).
 
 362 TITLE TO PERSONAL PROPERTY. § 404. 
 
 damages as for a thing consumed, and may recover the value 
 of the chattel as it was when the conversion or consumption 
 took place/ The New York Supreme Court decided that 
 the rule of the civil law, that where goods are taken by a wil- 
 ful trespass the title is not changed, however great may be 
 .the alteration of the original materials, had not been adopted 
 in tliat State.^ But the court of last resort, in reviewino; the 
 judgment of the Supreme Court, held that if the plaintiffs 
 below, in converting corn into whisky, knew that it belonged 
 to another, and that they were thus using it in violation of 
 his right, they acquired no title to the manufactured article, 
 which, althouo-h chano;ed from the orio^nal material into an- 
 other of different nature, yet being the actual product of the 
 corn, still belonged to the original owner. * 
 
 3. Property in goods hy accession. 
 
 § 404. It is a general rule of law that the owner of prop- 
 erty, whether it be movable or immovable, has the rio;ht to 
 that which is united to it by accession or adjunction. Where, 
 for instance, the agent of the owner of a mill put his own 
 mill stones and mill irons into the mill, it was held that they 
 thereby became a part of the freehold, and that the agent 
 had no right to sever them, and that the agent's creditors 
 could not take them for his debts, although the mill had 
 been destroyed, and they alone were left.^ f 
 
 ' See 2 Kent's Com. 3G3. 
 
 = Silsbury v. McCoon, 4 Denio, 332 ; s. c. 6 Hill, 425 ; 3 X. Y. 379. 
 ^ Goddard v. Bolster, 6 Maine, 427. And see :\Iitchell v. Stetson, 7 Cush. 
 435. 
 
 * The rule referred to in the text has been adopted in Pennsylvania (Snyder 
 V. Vaux, 2 Raw'le. 423); and in Maine and Massachusetts it has been applied to 
 the v.ilful inlennisture of goods (Wingate v. Smith, 7 Shepl. 287 ; Rvder v.Hatha- 
 Avay, 21 Pick. 298; Wiilard v. Rice, 11 Mete. 493). Where a trespasser cut down 
 tirai)er and converted it into coal on the owner's land, and in action for tiie tres- 
 pass the value of the timber, and a counter demand of the defendant for the coal, 
 were submitted to the jury, who found a verdict for the plaintift', it was held that 
 as the coal remained in the possession of the owner of tlie timljer, the defendant 
 acquired no propcrtv in it (Curtis v. Groat. 6 Johns. 168; citing Betts v. Lee, 5 
 Johns. 348. See 6 Hill, 427 ; 4 Denio, 334). 
 
 t Goddard V. Bolster, s?</>rffl.. was an action of trespass for entering on the 
 plaintiff's land and carrying otf his mill stones and mill irons. It was proved
 
 § 405. CONFUSION OR INTERMINGLING OF GOODS. 303 
 
 4. Confusion or intermingling of goods. 
 
 § 405. If one man so confounds the goods of another 
 with his own that they cannot be distinguished, he must 
 himself bear all the inconvenience of the confusion, and it is 
 for him to distinguish his own property or lose it,^ '' If a 
 goldsmith be melting gold in a pot, and as he is melting it I 
 will cast gold of mine into the pot, which is melted alto- 
 gether with the other gold, I have no remedy for my gold, 
 but have lost it ; and if a man take my garment and em- 
 broider it with silk or gold, or the like, I may take back my 
 garment; but if I take the silk from you, and with this face 
 or embroider my garment, you shall not take my garment 
 for your silk whicli is in it, but are put to your action for my 
 taking the silk from you." ^ Where the plaintiff, at play, thrust 
 his money into the defendant's heap, and so intermingled the 
 coins that it became impossible to separate them, it was held 
 that the whole heap belonged to the defendant.^ And where 
 a person bought mortgaged goods in order to defraud the 
 mortgagee, and then mingled them with his own goods so 
 that the two could not be distinguished, and refused to 
 separate them, it ^vas held that the mortgagee might lawfully 
 take some of them with his own.* In Michigan, where a 
 
 that the plaintiff bought the premises some twenty years previous as a home for 
 his brother Robert, and that the latter alw;iys occupied and used the same as 
 thouo'h they were his own ; that when Robert went tliere to live there was a grist 
 mill on the premises, which, being subsequeutly burnt, it was rebuilt by Robert, 
 and he put into it his own mill stones and mill irons; that Robert ojcajjiad this 
 second mill as his own for several years, and until it was destriyed by a flood; 
 that he then took the mill stones and irons out of the river, sold some of them 
 and left the balance on the premises by the side of the road, where they re- 
 mained until they were taken on an execution against Robert by the defendants, 
 wdio were his judgment creditors. The judge charged tlie jury tliat the mill, 
 when rebuilt, belonged to the plaintiff, who would be holden to Robert for the 
 value of any materials or labor furnished by him, and that the parts after the 
 mill was destroyed continued to be the plaintiff's property. A verdict having 
 been found for the plaintiti", the Supreme Court directed jutlgment to be entered 
 on it. 
 
 One who. without license, enters upon government land, cuts down trees, and 
 converts them into wood, acquires no title to t!ie wood by the doctrine of acces- 
 sion (Brock V. Smith, 14 Ark. 4ol). 
 
 ' 2 Kent's Com. :565 ; Story on Bailm. § 40 ; Hart v. Ten Eyck, 2 Johns. Ch. 
 R, 62; Luptcm v. White, 15 Ves. 433. 
 
 ^ Anon. Popham, 38. 
 
 ' Ward V. Eyre, 2 Bulstr. 323. * FuLcr v. Paige, 26 111. 358.
 
 3G4 TITLE TO PERSONAL PROPERTY. § 406. 
 
 pyrsoii wrongfully mingled liis o\vn saw logs with those of 
 another, it was held that the latter mis^ht seize all of tHe loo-s 
 if he could do so without violence, and that he was not liable 
 for the accidental destruction of the property while thus in 
 his possession.^ * In Maine, where a person found his tim- 
 ber, which had been wrongfully taken from his land , min- 
 gled with other timber so that it could not be distinguished, 
 it was held that he could lawfully take possession of the 
 whole, even if afterward obliged to account to the true 
 owner for a portion of it.^ f 
 
 § 406. If the intermingling of goods be wilful, and with- 
 out the consent of the other, and the articles are of such a 
 nature that they cannot be distinguished and separated, the 
 civil law gives the whole to the one not consenting to the 
 mixture, but allows a satisfaction to the other. But the 
 common law gives the whole to the one not consenting, with- 
 out compensation to the other. This, however, is to be car- 
 ried no further than necessity requires ; and it seems to be 
 understood that if the articles so mino-led are of the same 
 
 ' Stephenson v. Little, 10 Mich. 433. "^ Bryant v. Ware, 30 Maine, 295. 
 
 * In Stephenson v. Little, supra, Campbell, J., dissenting, held that the 
 ■wrong-doer had a right to his share when the logs were of a uniform value. 
 
 t In Loomis v. Green, 7 Maine, 386, which was an action for certain pine 
 logs, the defendant claimed the logs under a bill of sale of them made to him by 
 the treasurer of Dartmouth College. It appeared that Loomis cut certain logs, 
 without authority, on the college lands, put upon them his private mark, and 
 deposited them in the Dead Diamond river, a tributary stream of the Androscog- 
 gin; and that he, at the same time, owned a small quantity of logs which he 
 acquired l>y purchase, on the Magalloway river, also a tributary stream entering 
 into the Androscoggin, on which he also put the same mark; and that botli 
 parcels were floated down said last-mentioned river for upwards of one hundred 
 miles by tlie current, without any particular superintendence. The plaintiff" con- 
 tended that the burden of proof was on the defendant to show that the logs he 
 took were not those purchased on the JMagalloway by the plaintiflT, but that they 
 were those cut on the college lands and floated down the Dead Diamond river. 
 But it was held otherwise. As the plaintiff had marked the logs cut on the col- 
 lege lands, which were the property of the trustees, with the same marks as 
 those which he owned on the Magalloway, and turned the whole into the An- 
 droscoggin, so that they might go down promiscuously, he had effected what 
 the law terms a confusion of goods; and this having been done wilfully, and 
 without the mutual consent of the owners of both parcels, it is for the partj' 
 creating the confusion to distinguish his own property satisfactorily, or lose it. 
 
 The placing of crockery, china, or other articles resembling each other on 
 the same shelf, is not a confusion of them within the meaning of the law (Treat 
 V. Barber, 7 Conn. 274).
 
 § 408. CONFUSION OR INTERMINGLING OF GOODS. 305 
 
 kind and of equal value, the injured party may take liis 
 given quantity, and not the wliole.^ 
 
 § 407. When tlie confusion or commixture of goods is 
 made with the consent of the owners, or by accident, or by 
 the inadvertence or negligence of one of the owners, and the 
 goods are of such a nature that they can be identified and 
 separated — as if A. mixes some of B.'s cattle, sheep, horses, 
 wood, or furniture, with his own, erroneously supposing that 
 they belong to him — the property of each remains as before ; 
 and when, although the identity remains, they cannot be 
 distinguished, each owner is entitled to his share.^ * Where 
 the wood of two persons became intermingled and indistin- 
 guishable, without the fault of either, it was held that they 
 became tenants in common of the wood, each being entitled 
 in the joint property to the number of cords of which he was 
 the owner previous to the confusion of the wood.^ 
 
 § 408. If goods while mingled with others, be sold by 
 number, weight, or measure, the sale is incomplete, and the 
 title continues wdth the seller until the bargained property 
 be separated and identified. The reason is, that the sale 
 cannot apply to any article until it is clearly designated, and 
 its identity thus ascertained. But if the goods sold are 
 clearly identified, then, although it may be necessary to 
 
 ' 3 Blk. Com. 405; Browne's Civil Law, 243; Willard v. Rice, 11 Mete. 493; 
 Beach v. Scliraultz, 20 111. 185; Gilman v. Sanborn, 3G N. Hanip. 311; Ryder v, 
 Hathaway, 21 Pick. 298; Seavev v. Dearborn, 19 N. Hamp. 351'; Barron v. Cob- 
 leigh, 11 lb. 557; Hyde v. Cookson, 21 Barb. 92; Silsbiirv v. McCoou, 3 Comst. 
 379. 
 
 = Story on Bailment, § 40 ; Piatt v. Bryant, 20 Vt. 333 ; Moore v. Bowman, 
 47 N. Hamp. 494. 
 
 ' Moore v. The Erie R. R. Co. 7 Lans. 39. 
 
 * A., a machinist, was allowed to use with his own tools and machinery a 
 quantity belonging to B., in consequence of which those of B. became intermin- 
 gled with his own, so tliat it was difficult to distinguish the one from the other. 
 B. sold to C. such of the articles as belonged to him, without however specify- 
 ing or enumerating them ; but A. would not allow C. to take them away. There- 
 upon B. sent workmen to remove the property, but did not point it out to them 
 or state what articles it comprised. In an action of trespass by A. against B., it 
 was held that B. was not lial^le for the act of the workmen in removing acci- 
 dentally with the articles sold other similar ones belonging to A. (Rose v. Gal- 
 lup, 33 Conn. 338).
 
 360 TITLE TO PERSONAL PROPERTY. § 409. 
 
 number, weigh, or measure tliem, in onler to ascertain what 
 would l>e the piice of the whole at a rate agreed upon be- 
 tween the parties, the title will pass. If a flock of sheep is 
 sold at so much the head, and it is agreed that they shall be 
 counted after the sale in order to determine the entire price 
 of the whole, the sale is valid and complete. But if a given 
 number out of the whole are sold, no title is acquired by the 
 purchaser until they are separated, and their identity thus 
 ascertained and determined. The distinction in all these 
 cases does not depend so much upon what is to be done as 
 upon the object to be attained. If that is specification, the 
 property is not changed. If it is merely to ascertain the 
 total value at designated rates, the change of title is effected.^ 
 
 5. When oioner of goods estopped from asserting title to them. 
 
 § 409. When any one by his conduct causes the belief, 
 or by his silence admits another to be the owner of property, 
 so that a third person, in acting upon the representation, as- 
 sumes responsibility, or parts with value, he cannot after- 
 ward aver his own title to the injury of such person.^ Where 
 an insolvent debtor falsely and fraudulently pretended that 
 the goods belonging to him and in his possession were the 
 property of one Madden, the lease of the store being in the 
 name of Madden, and his name upon the awning, it was held 
 that such debtor could not enforce his claim to the goods 
 against a creditor of Madden who had levied upon them.^ ^ 
 But the rule that of two innocent persons, he who has parted 
 with tlie possession of his property must yield to a bona fide 
 
 » Crofoot V. Bennett, 2 N. Y. 358. 
 
 ■ Thompson w Blanchard, 4 Com. 303; Deezell v. Odell, 3 Hill, 215; Hib- 
 bard v. Stewart, 1 Hilton, 207. 
 
 ' Kigney v. Smith, 39 Barb. 383. 
 
 * Holt V. .Johnson. 14 Johns. 425, was an action of trespass brought by John- 
 son in a justice's court against Holt for taking a horse from the plaintiff. The 
 plaintiff proved that the horse being in charge of one Soule, his tenant, as bailiff 
 for the defendant, he distrained the horse for rent in arrear; that after the liorse 
 was taken, Soule, who claimed to own him, consented that the pbintiff might 
 take him home and use him for his keeping until the day of sale, and while the 
 horse was thus in the possession of the plaintiff, the defendant took him away. 
 The Supreme Court affirmed the judgment, which was for the jilaintiff.
 
 § 410. OWNER OF GOODS ESTOPPED. 367 
 
 purchaser from t]ie man to whom such possession is con- 
 fided, has hardly ever been applied, except when the owner 
 either transferred the legal title with the possession, reserv- 
 ing or raising a trust, or furnished such unequivocal indicia 
 of absolute ownership with the possession, as to mislead the 
 purchaser. The latter advancing his money, and taking 
 without notice of the trust, or in confidence of appearances, 
 shall then hold. In the first case, the legal right is allowed 
 to prevail against the equitable ; and in the latter, the original 
 owner is estopped to gainsay the language held by the in- 
 dicia of ownership. In the first, the legal right is allowed to 
 override the lurking equity; in tbe second, the owner is 
 timself forbidden to practice a fraud. ^ 
 
 § 410. Mere possession will not give the vendee of the 
 possessor a title to the goods as against the true owner, even 
 though tbe vendee be a bona fide one, without notice of the 
 rights of the owner. If it would, one who leaves his watch 
 at a watchmaker's to be repaired, or keej^s his horse at a livery 
 stable, or who lends his watch or horse to another for a short 
 period, would be liable to be divested of his property through 
 a sale by the temporary possessor. But if one intrust an- 
 other with both the possession and the indicia of the right 
 of disposition, then a sale by the possessor will vest the title 
 in his hona fide vendee without notice. The mere giving of 
 the possession of goods to one whose general and acknowl- 
 edged business is not that of a sale of such goods, although 
 he may be incidentally concerned in the purchase and sale of 
 such goods, does not transfer to him the external indicia of 
 the right of disposition. So likewise, if one carries on two 
 distinct branches of business — e. g., repairing watches for 
 others, and buying and selling watches on his own account, 
 — an owner of goods who delivers them to him by reason 
 of his carrying on one branch, does not give him the external 
 
 ' Ash V. Putuam, 1 Hill, 303.
 
 308 TITLE TO TERSONAL PROPERTY. §§ 411, 412. 
 
 indicia of tlie riglit of disposition by reason of his carrying 
 on the other branch,^ "' 
 
 6. When 'property in goods vests in trespasser. 
 
 § 411. Although when a trespasser takes a chattel into 
 his possession, and the plaintiff recovers damages for the 
 specific chattel so taken, the recovery and satisfaction of 
 judgment, change the property by operation of law ; yet this 
 only occurs where the amount, paid by the wrong-doer, in- 
 cludes the value of the article for the taking^ of which the 
 action is brought.^ f It was accordingly held, that the 
 settling of an action for trespass in cutting down timber, by 
 the payment of damages therefor, did not transfer to the 
 trespasser, a right to the timber cut down and remaining on 
 the land, although he had worked the timber up into 
 shingles.'^ So likewise, where in an action by the Trustees 
 of Dartmouth College against one Loomis, for cutting on 
 theii' land, pine timber trees, Loomis having admitted their 
 rio-ht to the trees, they abandoned so much of their suit as 
 was for the recovery of the value of the timber, and prose- 
 cuted it for the injury sustained by the entering and cutting 
 only, and judgment was entered in their favor for nominal 
 damages, it was held that by this judgment, the title to the 
 timber was not changed.* 
 
 7. Property made chattels hy agreement. 
 § 412. The customary distinction between real and 
 
 ^ Saltus V. Everrett, 20 Wend. 267 ; affi'g s. c. 15 lb. 474 ; Covill v. Hill, 4 
 Denio, 323; Ely v. Ehle, 3 Comst. 506; Linnen v. Cruger,'40 Barb. 633. 
 
 "^ Fox V. Northern Liberties, 3 Watts & Serg. 103 ; Jones v. M'Neil, 2 Bailey, 
 466; Goldsmith v. Stetson, 39 Ala. 183; Thurst v. West, 31 N. Y. 210. 
 
 * Betts V. Lee, 5 Johns. 348. ■* Loomis v. Green, 7 Maine, 386. 
 
 * Where shingles, which were made and left on vacant land, were carried 
 away without the owner's knowledge or con'sent, it was held that he might 
 maintain an action of trespass therefor, although they were taken with the per- 
 mission of one to whom the land was conveyed l)efore their removal (Reader v. 
 Moody, 3 Jones Law, N. C. 372). 
 
 t The payment of a judgment rendered in an action for taking and carrying 
 away o-oods Vests the property in them in the defendant, although part of the 
 goods°belonged to the plaintiff's wife before marriage (Schindel v. Schindel, 12 
 Md. 108).
 
 §§ 413, 414. GENERAL EULE AS TO FIXTUKES. 3G9 
 
 personal property, cannot in general, be abrogated by tbe 
 agreement of tbe parties. It may bowever be done in re- 
 lation to tbings wbicb being originally personal ill tbeir 
 nature, are attacbed to tbe realty in sucb manner tbat tbey 
 may be detacbed witboiit being destroyed or materially 
 injured, and witbout tbe destruction of, or material injury 
 to tbe tbings real, witb wbicb tbey are connected ; tbougb 
 their connection witb tbe land, or otber real estate is sucb, 
 tbat in tbe absence of an agreement, or of any special re- 
 lation between tbe parties in interest, tbey would be a part 
 of tbe real estate.-^ It is well settled tbat erections wbicb, 
 by tbe general rules of law, would belong to the freehold, 
 may become personalty by agreement between tbe owner 
 of tbe land, and tbe party claiming tbe erections. 
 
 § 413. But where tbe subject or mode of annexation is 
 sucb tbat tbe attributes of personal property cannot be pred- 
 icated of tbe tbing in question ; altbougb rigbts by way of 
 license may be created in it, yet it cannot be made alienable 
 as chattels, or subjected to tbe general rules by wbicb tbe 
 succession of tbat species of property is regulated. A bouse, 
 for instance, wbicb cannot be removed witbout practically 
 destroying it, cannot be made a cbattel by agreement ; and 
 tbe same is true of tbe bricks, beams, or otber materials of 
 wbicb tbe walls of the house are composed, and wbicb are 
 essential to its support."^ 
 
 8. General rule as to fixtures. 
 § 414. Tbe old rule of law seems to bave been that wbat- 
 ever was annexed to tbe freebold became part of it, and. could 
 
 ' Ford V. Cobb, 20 N. Y. 344. 
 
 * In Fryatt v. Sullivan Co. 5 Hill, 116, a ce-rtain steam engine and boiler 
 were leased, and the lessees took them to their smelting works, and affixed them 
 so firmly to the freeliold that they could not be removed without destroying 
 the building in wliich they were j)laced. The defendants made title to the 
 building under a mortgage executed after the engine had been thus annexed, 
 and the owner of tlie engine and boiler brought trover for them. It was held 
 that the articles had been converted into real estate, and that the remedy of the 
 plaintiff was against the party wlio wrongfully converted them from personal 
 into real property; and that the action could not be sustained against the owners 
 of the real estate (Affirmed 7 Hill, 539, Approved in Ford v. Cobb, supra). 
 Vol. I.— 24
 
 370 TITLE TO PERSOIfAL PROrEETY. § 415. 
 
 not be taken from, it, understanding "annexed to the free- 
 hold " fastened or connected with it. So that mere juxta- 
 position, or the laying of an object, however heavy, on the 
 freehold did not amount to annexation.^ Cases of construct- 
 ive annexation were early recognized, in which an object 
 really a chattel was, for certain purposes, considered as an- 
 nexed to the freehold. Thus, in Liford's case,^ it is said to 
 have been resolved in AVinstow's case, of Gray's Inn,^ that if 
 a man has a horse mill, and the miller take the mill stone 
 out of the mill to the intent to pick it to grind the better, 
 although it is actually severed from the mill, yet it remains 
 parcel of the mill, as it had always been lying upon the other 
 stone, and by consequence, by the lease or conveyance of the 
 mill, it shall pass with it. In Regina v. Wheeler,"* upon a 
 motion to stay process for seizing the wheel of a mill as a 
 deodand, and because it w^as parcel of the freehold. Lord 
 Chief Justice Holt is reported as saying : " A mill is a known 
 thing in law, and so are the parts thereof, and, therefore, if 
 the owner of a mill take out one of the mill stones to pick 
 or gravel it, and devise the mill, while the stone is severed 
 from it, yet it shall pass as part of the mill." On this ground 
 process was stayed. The same was held as to doors, win- 
 dows, rings and keys, although they are distinct things ; and 
 so, also, as to heirlooms, charters, and evidence attendant upon 
 the inheritance, and the deer and fish in a park or fish pond.^ 
 
 § 415. The question as to whether or not certain things 
 are to be deemed fixtures is now made to depend not upon 
 the fact of their being aflixed or fastened to the land, but 
 upon their evident purpose and adaj^tation for ornament or 
 use in the situation and manner in which they were located 
 and constructed,*' It has been well said that " A thing may 
 
 ' Buller's N. P. 34; Wadleieh v. Jauvrin, 41 N. Harap. 503; Anthony v. 
 Hauey, 8 Bing. 186; Horn v. Baker, 9 East, 215; Davis v. Jones, 2 B. & A. 165. 
 
 ^ (5 Coke, 50. = 14 H. 8, 25 b. "6 Mod. 187. 
 
 '' Amos & Ferraid on Fixtures; 2 Kent's Com. ; Walker v. Sherman, 20 Wend. 
 GCG. 
 
 '^ Powers V. Dennison, 30 Yt. 752.
 
 § 415. GENERAL RULE AS TO FIXTURES. 371 
 
 be as "firmly affixed to the land by gravitation as by clamps or 
 cement." Its character may depend much upon tlie object of 
 its erection. The intention of the person making the erection 
 often exercises a controlling influence, and its connection with 
 the land is looked at principally for the purpose of ascertain- 
 ing whether the intention was that the thing in question 
 should retain its original chattel character or was designed 
 to be made a permanent accession to the land.^ Although in 
 erecting a dwelling its doors, windows, blinds and shutters 
 become a part of it, and the manner of annexation is of no 
 particular consequence, yet there must be actual or construct- 
 ive annexation in order to make them a part of the building. 
 Where at the time a person conveyed to another a house and 
 premises, the building had in it all the windows, it w^as held 
 that the mere fact that the grantor had made some sash, 
 painted them, and set glass in them, intending to use them 
 at some future time in the construction of double windov/s 
 for the house, did not constitute constructive annexation.^ 
 In Winslow v. The Merchants' Ins. Co.,^ where the inquiry 
 was whether a steam engine and other machinery of a manu- 
 factory were to be considered as fixtures, and had vested as 
 such in the defendants under a mortsrao-e of the building 
 prior to the period when they were erected, in opposition to- 
 the claim of the plaintiffs under a subsequent specific mort- 
 gage of the machinery itself, the court held that this point 
 was to be determined not by the fact whether or not the 
 machinery was affixed to the building, but whether it was 
 permanent in its character and essential to the purposes for 
 which the building was occupied. ''^ In a case in New York, 
 
 ' Snedeker v. Warring, 12 N. Y. 170. 
 
 = Peck V. Batchekler, 40 Vt. 233. ' 4 Mete. 306. 
 
 * " The rule that objects must be actually and firmly affixed to tlie freehold to 
 become realty, or otherwise be considered as personalty, is far from constituting 
 a criterion. Doors, window blinds and shutters, capable of being removed with- 
 out the slightest damage to a house, and even though, at the time of a convey- 
 ance an attachment or a mortgage, actually detached, would be deemed, we 
 suppose, a part of the house and pass with it. And so, we presume, mirrors, 
 wardrobes, and other heavy articles of furniture, though fastened to the walls by 
 screws with considerable firmness, must be regarded as chattels. In general
 
 372 TITLE TO PERSONAL PROPERTY. § 415. 
 
 the Court of Appeals held, reversing the decision of the Su- 
 preme Court, that a statue erected as an ornament to grounds 
 maybe a part of the realty, although not fastened to the base 
 on which it rests and capable of being removed without fract- 
 ure ; and also, that a sun dial erected without being in any 
 way fastened, upon a permanent foundation of stope in the 
 same grounds, was a part of the real estate, although it 
 weighed only two hundred pounds, and could readily be re- 
 moved.^ In the same case, the court disregarded as incom- 
 petent and immaterial the testimony of the former owner of 
 the statue, that when he set it up •lie did not design it as a 
 permanent erection, but intended to sell it whenever an 
 opportunity should offer. * 
 
 terms, we think it may be said that when a building is erected as a mill, and the 
 water works or steam works which are relied ou to move the mill are erected 
 at the same time, and the works to be driven by it are essential parts of the 
 mill, though not at the time of the conveyance, attachment or mortgage attached 
 to the mill, they are yet parts of it, and pass with it by the conveyance, mortgage 
 or attachment.'' Shaw, C. J., in Winslow v. The Merchants' Ins. Co., srtpra. 
 By the civil law. columns, figures and statues used to spout water as fountains 
 were regarded as immovable or real, though it was inferred that statues resting 
 on a base of masonry were not immovable, becauselthey were there, not as part of 
 the construction, but as ornaments (Pandects, Lib. 19, § 17, vol. 7, by Pothier, 
 107). By the French law, statues placed in a niche made expressly to receive 
 them, though they could be removed without fracture or detrioration, are im- 
 movable or part of the realty (Code Nap.,§ 525). But statues standing on pedes- 
 tals in houses, court yards and gardens, retain their character of movable or per- 
 sonal (3 Touillie:, Droit Civil de France, 12). This lias reference to statues only, 
 which do not stand on a substantial and permanent base or separate pedestal 
 made expressly for them. For when a statue is placed on a pedestal or base of 
 masonry constructed expressly for it, it is governed by the same rule as when 
 placed in a niche made expressly to receive it, and is immovable (2 Repertoire 
 Journal du Palais, by Ledru Rollin, 518, § 139). The statue in such case is re- 
 garded as making part of the same thing with the permanent base upon which 
 it rests. The reasons for the French law upon this subject are stated by the 
 same author in the same work. p. 517, § 129, where the rule is laid down with 
 regard to such ornaments as mirrors, pictures and statues, that the law will pre- 
 sume the proprietor intended them as immovable when they cannot be taken 
 away without fracture or deterioration, or leaving a gap or vacancy. A statue is 
 regarded as integral with the permanent base on which it rests, and which was 
 erected expressly for it, when the removal of the statue will ofteud the eye by 
 presenting before it a distasteful gap, a foundation and base no longer appropri- 
 ate or useful (Id. § 139). Things immovable l)y destination are said to be those 
 objects movable in their nature which, without being actually held to the ground, 
 are destined to remain there perpetually attached for use, improvement or orna- 
 ment (2 Ledru Rollin, Repertoire Generale, 514, § 30). 
 
 ' Snedekerv. Warring, 12 N. Y. 170, Johnson, J., dissenting. 
 
 * In Voorhis v. Freeman, 2 W. & Serg. 116, it was held that rolls which 
 formed part of the machinery of a mill were to be regarded as fixtures, although 
 detached at the time the question arose, and kept on hand for tlie purpose of re-
 
 § 41G. GENERAL RULE AS TO FIXTURES. 373 
 
 § 416. The strict rule of the ancient law has been much 
 relaxed in favor of trade, and to encourage industry. As 
 between landlord and tenant, the latter may take away, dur- 
 ing the term, chimney pieces, wainscot, machinery and im- 
 plements, such as brewing vessels, coppers, engines, cider 
 mills, &c., which he has erected, and by which he not only 
 enjoys the profits of the estate, but carries on a species of 
 trade. So likewise, trees, plants and shrubs, in a nursery, 
 are personal chattels as between the landlord and tenant and 
 his assigns, for the taking and removal of which an action of 
 trespass will lie.^ * But the tenant must remove the trees at 
 
 placing others that were actually in use, and in Pyle v. Pennock, 2 W. & Serg. 
 891, that plates of iron which had been placed on the floor of a rolling mill to protect 
 it against fire were a part of the building, although not fastened to it in any way, 
 and kept in place by their own weight. In the case of a factory, the wheel or 
 engine which furnishes the motive power, and all that part of tlie gearing and 
 machinery which has special relation to tlie building with which it is connected, 
 belong to the freehold, while an independent machine like a loom, which if re- 
 moved still remains a loom, and can be used as such whenever it is wanted and 
 power can be applied to it, will still retain its character of personalty (Murdock v. 
 Giftbrd, 18 N. Y. R. 28, per Johnson, C. J, citing Powell v. Monson Co. 3 
 Mason, 459; Gale v. Ward, 14 Mass. 352; Cresson v. Stout, 17 Johns. 116; 
 Swift v. Thompson, 9 Conn. 63; Teaff v. Hewitt, 1 McCook, 511; Vanderpoel 
 v. Van Allen, 10 Barb. 157). Where machinery is severed from a mill, the 
 owner is not thereby divested of his property, but what was before part of his 
 freehold becomes by the severance personal property and may be reclaimed 
 (Morgan v. Varick, 8* Wend. 587). In Farrant v. Thompson, 5 Barn. & Aid. 826, 
 it was held that mill machinery, when severed from the mill, became the per- 
 sonal property of the owner of the mill, and though it was sold as the personal 
 property of the tenant to whom the mill had been demised, that no property 
 passed to the purchaser, but that the landlord might bring trover. But accord- 
 ing to Gordon v. Harper, 7 Taunt. 9, and several other cases, if the machinery 
 in that case had been demised to the tenant as personal property the action could 
 not have been maintained until the tei-mination of the lease. Tlie owner of land 
 granted to another a certain water privilege for the purpose of sawing and manu- 
 facturing marble in a mill contemplated to be buiit on the premises, and '"also 
 the right of procuring marble from the grantor's land free and unmolested, but' 
 not to the exclusion of other grantees." Held that the grantor had no riglit to 
 the small pieces of marble necessarily broken off by the grantee in blasting and 
 in reducing the blocks to a shape suitable for sawing (Rice v. Ferris, 2 Vt. 62). 
 
 ' Miller v. Baker, 1 Mete, 27. 
 
 * In Lee v. Risdon, 7 Taunt. 191, Gibbs, Ch. J., in discussing the general 
 question of fixtures, says that trees in a nursery are a part of the freehold until 
 severed. In Miller v. Baker, mjrra, Dewey, J., remarks that, while this is no 
 doubt true as between the heir and executor, and would be so also where the en- 
 tire property in tlie land and in the trees growing thereon, is united in the same 
 person, yet that where the owner of the trees has no permanent interest in the 
 soil, but is using it for the mere purpose of nourishing and sustaining his trees 
 until the proper time shall arrive for their removal, the interest in the trees may 
 be considered as separated from the realty. 
 
 Wiuc plants growing upon a farm are personrd property as between the tenant
 
 374 TITLE TO PERSONAL PKOPBETY. § 417. 
 
 the expiration of the lease, or the right to them will vest in 
 the landlord.-^ * 
 
 § 417. There has been little, if any, deviation from the 
 old rule as between the heir and executor, the mortgagee 
 and mortgagor, and the grantee and grantor.^ f Wadleigh v. 
 
 of the farm and his landlord. Tlie tenant has the right to remove them from 
 the farm, and his mortgagee of them, acquires the same right (Wintermute v. 
 Light, 4(3 Barb. 278). 
 
 Wliere property tortiously severed from the freehold remains some time upon 
 the premises, and is afterwards removed, the statute of limitations runs from tho 
 date of removal, and not from the time of the severance (Morgan v. Varick, 8 
 Wend. 587). 
 
 ' 2 Kent's Com. 343; Poole's Case, 1 Salk. 368: G Bing. 437; Cresson v. 
 Stout, 17 Johns. 116; Holmes v. Tremper, 20 lb. 29; Stockwell v. Marks, 5 
 Shepl. 455; Gaffield v. Hapgood, 17 Pick. 192; White v. Arndt, 1 Whart. 91; 
 Union Bank v. Emerson, 15 Mass. 159; Lee v. Risdon, 7 Taunt. 188; Lyde 
 V. Paissell, 1 B. & A. 394; Beckwith v. Bovce, 9 Mo. 560; Whiting v. Brastow, 
 
 4 Pick. 310; Van Ness v. Pacard, 2 Peters, 137; Brooks v. Galster, 51 Barb. 
 196. 
 
 ' Litt. 53, a; Dav v. Bisbitch, Cro. Eliz. 374; Cave v. Cave, 2 Vera. 508; 
 Culling v. Tuffnal, Bui. N. P. 34; Poole's Case, 1 Salk. 368; (xpaite Quincy, 1 
 Atk. 477; Dudley v. Ward, Amb. 113; Lawton v. Salmon, in note to Lawton v. 
 Lawton, 3 Atk. 13, and in note to Fitzherbert v. Shaw, 1 H. Bi. 259: Elwes v. 
 Maw, 3 East. 38 ; Penton v. Robart, 2 East. 88 ; Day v. Perkiua, 2 Sandf. Ch. 
 R. 359; Kirwan v. Latour, 1 Har. & J. 289; 3Iiller v. Plumb, 6 Cowen, 665; 
 Connor v. Coffin, 2 Fost. 538. 
 
 * The rule as to the right of a tenant to remove fixtures, has been stated to 
 be, that things annexed to the freehold, if movable at all, must be moved before 
 the expiration of the tenancy. The rule is founded on the supposed abandon- 
 ment of the fixtures Vi'heu left on the premises ; or that they become a gift in 
 law, to him in reversion, and are not removable (Beardsley v. Sherman, 1 Daly, 
 325; Poole's Case, 1 Salk. 368; Lyde v. Russell, 1 Barn. & Aid. 394; Marshall 
 V. Lloyd, 2 Mees. & Wels. 450; ex parte Quincy, 1 Atk. 477; Lee v. Risdon, 7 
 Taunt. 188; Colgrave v. Dias Santos, 2 Barn. & Cress. 76; Reynolds v. Shuler, 
 
 5 Cow. 323; Penton v. Robart, 2 East, 88). 
 
 In Preston v. Briggs, 16 Yt. 124, it was held that the right might be exer- 
 cised during the term, or irithin a reasoni/ble time aftencurd. Articles affixed to 
 the laud iav the improvement of the freehold — as for the purposes of agricultui'e 
 — cannot be removed by the tenant even during his term (Elwes v. Maw, 3 
 East, 38). 
 
 t Where in an action for entering the plaintiff's premises and removing there- 
 from twenty-three iron kettles used for making salt, it appeared that the kettles, 
 which were iml)edded in brick arches, were bought of the defendant and mort- 
 gaged back to him to secure the purchase money, and that the mcraey not having 
 been paid, the defendant entered upon the premises and carried away the kettles 
 by virtue of the mortgage. It was proved that the kettles which were set in the 
 arches alter the filing of the mortgage, could only be removed by tearing off a 
 portion of the upper bricks of tlie arch and prying the kettles, out by a plank 
 and bars; that it was the general custom to take the kettles, out and reset them 
 every season, and that they had been taken out and reset before the defendant 
 took them. It was held that the kettles were personalty as against a subsequent 
 purchaser of the salt works, who had no notice of the mortgage other than from 
 the fact of its being on file in the clerk's office of the court (Ford v. Cobb, 20 N. 
 Y. 344). 
 
 In Connecticut, the following have been held a part of the realty : a windlass
 
 §418. GENEKAL RULE AS TO FIXTURES. 375 
 
 Jauvrin/ was an action of trespass brought by tlie vendee 
 against the vendor of a farm, for carrying away from the 
 premises, after the sale, a cider mill and press, stanchion 
 timbers, hinge staples, tie chains, and tie-up planks. When 
 the plaintiff purchased the farm, a barn thereon was beiog 
 repaired; and for that purpose, the floors of the tie-ups, with 
 the stanchions and stanchion timbers, and the chains had 
 been removed, and only partially replaced at the time of the 
 conveyance. Tlie doors and windows and hinge hooks, by 
 w^hich they had been supported, had also been removed. 
 The defendant contended that the articles in question were 
 personal property, and did not pass to the plaintiff by the 
 conveyance of the farm and buildings. A verdict, however, 
 having been found for the plaintiff in the court below, the 
 Supreme Court refused to disturb it."^' The later authorities 
 hold that as to fixtures, the same rule prevails between mort- 
 gagor and mortgagee as between grantor and grantee.^ 
 
 § 418. The manure of animals sj)read about the barn 
 yard, or lying in piles at the stable window, passes by a 
 deed of the real estate to the grantee.^ f Where the defend- 
 ant occupied the farm as tenant, the year preceding the re- 
 moval of the manure, and the manure was made from the 
 crops raised upon the farm, which the rules of good hus- 
 bandry required should be used and expended upon and 
 about the farm, it was held that in the absence of any agree- 
 in a slaughter house (Cnpeii v. Peckham, 35 Conn. 88) ; a bell hung in the tower 
 of a factory (Alvord Carriage Manf. Co. v. Gleason, 36 Conn. 86) ; a portable hot 
 air furnace set in a pit pi-eparecl for it in the bottom of the cellar of a dwelling- 
 house, held in its place siuiplj' by its own weight, together with the smoke-pipe 
 belonging to it (Stockwell v. Campbell, 89 Conn. 362j. 
 
 ' 41 N. Hamp. 503. = Snedeker v. Warring, 12 K Y. 170. 
 
 ' Parsons v. Camp, 11 Conn. 525. 
 
 * Where A. quitclaimed land to W., on which a crop of wheat was growing, 
 reserving the wheat by parol both at the time of the execution of the quitclaim 
 and in a previous conversation, when it was agreed by the parties tliat it should 
 be reserved ; it was held that evidence of such reservation was not admissil)le to 
 contradict the conveyance in writing which passed the title of the wheat with 
 the land (Austin v. Sawyer, 9 Cowen, 89). 
 
 t So with fences and materials for a fence, though not actually in use for 
 that purpose at the time of the conveyance (VVadleigh v. Jauvrin, supra, and 
 cases cited).
 
 376 ' TITLE TO PERSONAL PROPERTY. § 418. 
 
 ment authorizing it, he would uot have a right to remove 
 the manure from the farm. Even upon the supposition that 
 as between the defendant and the grantor of the plaintiff, 
 the defendant had the right to remove the manure, yet, in 
 the absence of any notice, either actual or constructive, to 
 the plaintiff of this right, the defendant's intention to remove 
 it could not affect the plaintiff's right to the manure, unless 
 that intention was manifested by some act sufficient to put 
 the plaintiff upon inquiry at the time of his purchase.^ In 
 Stone V. Proctor,^ Proctor sold his farm to Stone, March 22d, 
 but was to retain possession until the 1 st of April following. 
 On the 28th and 29th of March, he drew from the premises 
 the manure as it originally lay in the barn yard, and in 
 heaps at the stable windows. The plaintiff proved his deed, 
 which was in the usual form, and showed the removal of the 
 manure by the defendant ; and it was held that he was en- 
 titled to judgment. Conner v. Coffin,^ was an action of tres- 
 pass for breaking and entering the plaintiff's close, and carry- 
 ing away manure. It appeared that one Ham sold the prem- 
 ises to the plaintiff' at auction, and that at the time of the 
 sale, no reservation was made of the manure ; but that after 
 the farm was sold, he directed the auctioneer to set up the 
 manure, to which the plaintiff objected, claiming it as a part 
 of his purchase, and forbidding the sale. No sale of the 
 manure took place on that clay ; and on the next day. Ham, 
 with a full knowledge of the plaintiffs claim, gave him a 
 deed of the farm, without any reservation contained therein. 
 On the morning before the sale took place, however, the 
 plaintiff' called upon Ham, and examined the premises, and 
 was told by him that he should sell the farm in lots, and put 
 up the manure separately. The manure was under cover in 
 a place made for it behind the cattle stall in the barn. On 
 the trial, two questions arose: 1st. Whether the manure 
 passed by the conveyance, assuming that there was no reser- 
 
 ' Wetherbee v. Ellison, 19 Vt. 379. 
 
 ^ 2 D. Cliipman, 108; and see Kittredge v. Woods, 3 N. Hamp. 503. 
 
 » 2 Fost. 538.
 
 §§419, 420. GENERAL RULE AS TO FIXTURES. 377 
 
 vatiou in the sale; and second, whether the evidence was 
 competent to show a reservation. The jury having found 
 for the plaintiff, the Supreme Court directed judgment to be 
 entered on the verdict. 
 
 § 419. Manure made on a farm occupied by a tenant in 
 the ordinary course of husbandry, consisting of collections 
 from the stable and barn yard, or of compost formed by 
 an admixture of those with soil or other substances, is by 
 usage, practice and the general understanding, so attached to 
 and connected with the realty, that in the absence of any 
 express stipulation on the subject, an outgoing tenant has no 
 right to remove it, or sell it to be removed ; and such 
 removal is a tort for which the landlord may have redress ; 
 and such sale will vest no property in the vendee. The 
 foregoing rule does not apply to manure in a livery stable or 
 in any manner not connected with agriculture. A farm 
 tenant has a qualified property in manure to be used on the 
 farm. But if he sells it, he thereby relinquishes his posses- 
 sion, and it vests in the owner of the freehold, who may 
 maintain trespass de honis asjyortatis against the yendee for 
 removing it.^ ^'' Straw raised on a farm which is cultivated 
 on shares, is not considered in law as manure. It is a part 
 of the crop, and belongs to the owner of the crojD, unless 
 there is some stipulation to the contrary.^ 
 
 § 420. Although the general principle of law is, that a 
 building permanently fixed in the freehold becomes a part of 
 
 ' Daniels V. Pond, 21 Pick. 367; Lassell v. Reed, 6 Greenlf. 222; Kittredge 
 V. Woods, 3 N. Hamp. 503; Lewis v. Lyman, 23 Pick. 437; Conner v. Coffin, 
 22 N. Haiup. 541; Plumer v. Plumer, 30 lb. 558; Perry v. Carr, 44 lb. 118; 
 Middlebrook v. Corwin, 15 Wend. 169; Goodrich v. Jones, 2 Hill, 142. 
 
 " Forbes v. Shattuck, 22 Barb. 568. 
 
 * In Conner v. Coffin. sup?'a, it was stated by Eastman, .J., that he had 
 found no case where the tenant of a farm had Ijeen permitted to remove the 
 inanui'e which had accumulated in the course of his term. It seems however 
 to have been held in North Carolina, that a tenant, in removing, may lawfully 
 take with him, where there is no covenant or custom to the contrary, all the 
 manure made on the farm during his term. But he has no right to it, if 
 he leaves it when he quits the farm. Taking away portions of the earth that 
 are unavoidably mixed with the manure in raking it into heaps, will not make 
 the tenant a tort-feasor (Smithwich v. Ellison, 2 Iredell, 32G).
 
 378 TITLE TO PERSONAL PEOPERTY. § 420. 
 
 it, — that prhna facie a house is real estate belonging to the 
 owner of the laud on which it stands, — yet it may be per- 
 sonal estate ; and is so regarded where it was erected by the 
 builder wdth his own money, and for his own exclusive use, 
 as disconnected from the use of the laud, and with the un- 
 derstanding between the owner of the land and the builder 
 that it may be removed.-^ * The general rule, that a building 
 erected on land is regarded as real estate, has also been 
 relaxed in favor of tenants.^ However the rights of land- 
 lords against their tenants may have been considered in an- 
 cient times, it is now settled that, in favor of trade, manu- 
 factures and business, a building erected for those objects 
 may be removed by him whose estate is determined. In 
 
 ' Doty y. Gorham, 5 Pick. 487; Marcy v. Darling, 8 II3. 283; Ashmun v. Wil- 
 liams, lb. 403; Curry v. Com. Ins. Co. 10 lb. 540; Wells v. Banister, 4 Mass. 
 514; Taylor V. Townsend, 8 lb. 411; Benedict v. Benedict, 5 Dav, 464; Prince 
 V. Case. '10 Conn. 379; Parker v. Redfield, lb. 490; Baldwin v. 'Breed, 16 lb. 
 60; Curtissv. Hoyt, 19 Ih. 154; Packer v. Kelly, 1 Greenl. 117; Yale v. Seely, 
 15 Vt. 221. 
 
 " Beers v. St. John, 16 Conn. 332. 
 
 * The above cited cases, decided in Massachusetts and Maine, hold that where 
 one erects a l)uilding on the land of another, the building remains the property 
 of him who placed it there, and is personal property in him. But in Connecti- 
 cut, in Benedict v. Benedict, supra, the ancient common-law doctrine was 
 adopted, that a fixed and permanent building erected upon another's land, even 
 by his license, became his property ; but if, in its nature and structure, it was 
 capable of being removed, and a removal was contemplated by the parties, it 
 was personal estate in the builder; and where the license was improperly re- 
 voked, resort must be had to a court of chancery. And in Curtiss v. Hoyt, svpra, 
 Waite, J., in dissenting from that part of the opinion of the court relating to tho 
 question whether the building was real or personal property, said that he could 
 not accede to the doctrine tliat if a man erects a dwelling-house in a fixed and 
 permanent manner upon the land of another by his license, such dwelling-house 
 becomes personal property, and may be transferred in the same manner as a cart 
 Oi' a wagon ; and that, in his opinion, it could only be conveyed as real estate, 
 although the owner of the building might have such an interest in it as would 
 be protected by a court of equity, and, in some instances, be recognized in a 
 court of law. Ileermance v. Vernoy, 6 Johns. 5, was an action of trespass, 
 brought by Vernoy in the court below against Heermance for entering upon his 
 land, pulling down a bark mill belonging to the plaintiff, and taking therefrom 
 and carrying away a millstone, the iron bands and bolts with which the same 
 had been fastened in the mill, together with portions of the mill. The defend- 
 ant offered to prove that the person who sold the premises in question to the 
 ])laintili, verbally excepted from such sale the mill, and that he 'afterwards sold 
 it to the defendant. The court were inclined to think that the mill and its ap- 
 purtenances were not part of the freehold, but personal property. But as the 
 entry upon the land of the plaintiff was a trespass, and the only two witnesses 
 introduced by the defendant were incompetent, and the defendant had therefore 
 shown no title to the property which he had taken away, the judgment for 
 the plaintiff below was affirmed.
 
 § 421. GENERAL RULE AS TO FIXTURES. 379 
 
 Lawton v. Salmon/ Lord Mansfield held tliat Improvements 
 made by the tenant during his term might be taken away 
 by him, if he did not thereby prejudice the estate of his 
 landlord.^ In Peuton v. Robart,^ where the question was as 
 to the rio-ht of the tenant to take down and remove build- 
 ings erected by lilm on the demised premises, Lord Kenyon 
 asks : " Shall it be said that the great gardeners and nur- 
 serymen In the neighborhood of London, who expend thou- 
 sands of pounds in the erection of greenhouses and hot- 
 houses, tfec, are obliged to leave all these things on the 
 premises, when it is notorious that they are even permitted 
 to remove trees, or such as are likely to become such, by the 
 thousand, in the necessary course of their trade. If it were 
 otherwise, the very object of their holding would be de- 
 feated. This is a description of property divided from the 
 realty." '' 
 
 § 421. Where a person bulkls a house upon another's 
 land, with the verbal leave of the owner, who agrees that 
 the house may be removed at any time upon notice from 
 
 ' 1 H. Black. 259, note. 
 
 * And see Taylor v. Townsend, 8 Mass. 411. ' 2 East, 88. 
 
 * The use, by a tenant for years, of a portion of the materials of an old shop 
 on the premises in the construction of a new one, will not, in law, vest the title 
 of the latter in the owner of the former if the new building is a different and 
 distinct one from the old shop, and not the old one repaired or reconstructed. 
 The title to the new shop would depend upon whether or not it was substantially 
 and essentially the same shop as the old one. In determining this question, it 
 would be important and proper for the jury to consider what proportion of the 
 materials of one entered into the composition of the other, the character of those 
 materials, the particular use that was made of them, and the place they occu- 
 pied, and the purposes they answered in the newly erected building (Beers v. 
 St. John, supra). An action of trespass quare cluusum /regit cannot be main- 
 tained by a landlord against an under-tenant at will of a tenant for years, for 
 taking down and carrying away a house erected by him on the demised premises 
 during the lease. In Tobey v. Webster, 3 Johns. 4G8, the premises in question 
 were rented by the plaintiff in November, 1802, to one Barber for two years. In 
 July, 1803, Barber gave the defendant written permission to occupy the prem- 
 ises as long as the defendant should remain in his (Barber's) employ, and to 
 erect a small addition to the house. In November, 1808, Barber assigned his 
 lease to one Coffin, who, in February, 1804, reassigned it to the plaintiff. The 
 lease gave permission to cut timber. The house was built l)y the defendant with 
 materials cut on the premises, and was taken away by tiie defendant previous to 
 the reassignment of the lease to tlie plaintiff. At the circuit, a verdict was 
 taken for the plaintiff. The Supreme Court directed the verdict to be set aside, 
 and a judgment of nonsuit to bo entered.
 
 380 TITLE TO PERSONAL PROPERTY. § 421. 
 
 him, and the house is attached to the freehold so as to be a 
 fixture, a subsequent mortgagee, without notice of such 
 license, will, after he has taken possession of the land under 
 a decree of foreclosure, be entitled to the house, and may 
 maintain trespass against the person erecting it, if he then 
 remove it. And if, after foreclosure, but before possession 
 under the decree, one buys out the mortgagee, the purchaser 
 will have the same right to the building that the mortgagee 
 had, although he knew that the house was built with the 
 understanding that it might be removed.^ 
 
 ' Powers V. Dennison, 30 Vt. 752.
 
 CHAPTER II. 
 
 WRONGFUL T-SlKING- OF PERSOXAL PROPERTY BY 
 PRIVATE PERSON. 
 
 1. Wliat constitutes. 
 
 2. Creditor obtaining possession of goods by unlawful means. 
 
 3. Party directing illegal seizure or sale by oflBcer. 
 
 4. Eight oi' owner of goods to retake them. 
 
 5. Return of property by wrong-doer. 
 
 1. What constitutes. 
 
 § 422. Where a person meddles witli tlie goods and 
 chattels of another, either by laying hold of, removing, or 
 carrying them away, he thereby becomes a trespasser, unless 
 the act can be justified ; ^ and he incurs liability, though he take 
 the property but for an instant.^ * In order to constitute 
 
 ' Webb V. Paternoster, Godb. 282, PL 401 ; Farmer v. Hunt, Brownl. 220. 
 
 "^ Price V. Helyar, 4 Bing. 597. 
 
 * When a person takes possession of, and appropriates the jiroperty of another 
 without right, and against his consent, trespass de bonis asportatis will lie ; and 
 trover and replevin in the cepit are also, in general, concurrent remedies (Connah 
 V. Hale, 23 Wend. 462; Paugburn v. Partridge, 7 Johns. 140; Thompson v. 
 Button, 14 lb. 84; Mills v. Martin, 19 lb. 7; -Clark v. Skinner. 20 lb. 465; 
 Rogers v. Arnold, 12 Wend. 30; Barrett v. Warren, 3 Hill, 348; Pierce v. Van 
 Dyke, 6 lb. 613; Ely v. Ehle, 3 JST. Y. 500; Erisman v. Waters, 26 Penn. St. 
 R. 407 ; Parker v. Hall, 55 Maine, 362). It is a well established principle that if 
 one man wrongfully and by force take from another man his property, or com- 
 pel him to give security for money, or procure the estate of anotlier to be wrong- 
 fully attached, as the' property of a third person, trespass will lie (Bird v. Clark, 3 
 Day, 272). And a mere intent to sell, in violation of law, property which may 
 be used for lawful purposes, will not deprive the owner of his remedy against 
 persons illegally interfering with it (Dolan v. Buzzell, 41 Maine, 473). 
 
 A person acquires no property in wood and timber which float in the water 
 over his land. But it has l^een held that he has the exclusive right to seize wood 
 and timber floating in an eddy over his land, and to appropriate the same unless 
 the owner, in a reasonable time, claims it (Rogers v. Judd, 5 Vt. 223). 
 
 In New Hampshire, the statute of Dec. 1805, in force before the Revised 
 Statutes, in substance provided that if any lumber, put into any river or stream 
 running thereinto, and by the water carried or lodged upon any improved land, 
 and not taken away by the owner or his agent, before the first day of May, an- 
 nually, the owner of the land miglit detain such lumber until the owner of the 
 lumber paid all damage; and if the parties did not agree upon the damages, they 
 were to be settled by the selectmen or three justices of the peace. If such lum- 
 ber was not removed by the owner on or before the 1st of November, annually,
 
 382 WRONGFUL TAKING OF PERSONAL PROPERTY. § 422. 
 
 the offense, there need not have been an actual forcible dis- 
 possession. Any tinlawtui interference with the property of 
 another, or exercise of dominion over it, though by mere 
 words, by w' hich the owner is damnified, is sufficient ; ^ as 
 the merely making an inventory, and threatening to remove 
 the property, which is prevented by another giving a receipt 
 foT it ; or by the unlawful purchase of the goods of a third 
 person on an execution sale ; ^ or by an attachment, although 
 there was no removal of the goods ; ^ or by the finder of a 
 lost article, using or wasting it.^ ^' In an action of trespass 
 for taking property under a void execution, it appeared that 
 among the property sold was a stack of hay which w^as not 
 removed by the purchaser ; and the judge having instructed 
 the jury to allow damages for its value as well as for the 
 other property sold, it was held that there was no error in 
 the direction thus given ; the act of selling the hay without 
 authority, being a trespass.^ Where the owmer of a brig, 
 after agreeing to take a passenger from Boston to San Fran- 
 cisco, ordered him to leave the vessel, put part of his luggage 
 
 the owner of such land might take and convert the same to his own use; pro- 
 vided that, when the owner had paid the damages and costs, he should have 
 liberty to remove the same before the 1st of May following. For a construction 
 of this statute see Wilson v. Wentworth, 5 Fost. 245, dissenting from the view 
 taken in Walker v. Sawyer, 13 N. Hamp. 196. 
 
 ' Wintiingham v. Lafoy, 7 Cowen, 735 ; Gibbs v. Chase, 10 Mass. 125 ; Phil- 
 lips v. Hall, 8 Wend. 610; Miller v. Baker, 1 Mete. 27. 
 
 ^ Hardy v. Clendenirg, 25 Ark. 436. ' Neff v. Thompson, 8 Barb. 213, 
 
 * Isack V. Clarke, 1 Roll. 126; Oxley v. Watts, 1 T. R. 12; Attack v. Bram- 
 well, 32 L. J. Q. B. 146. 
 
 ^ Lewis V. Palmer, 6 Wend. 367. 
 
 * Where a growing crop of corn, which the owner bought at sherifTs sale, is 
 tortiously cut and thrown on the ground, the declaration must be for trespass 
 on personal chattels (Brittain v. M'Kay, 1 Iredell, 265). 
 
 In North Carolina, forcible trespass on personal property has been defined the 
 taking of it from the owner by force in his presence ; intimidation not being a 
 necessary ingredient (State v. Pearman. Phill. N. C. 371). 
 
 A person can only be deprived of his property by his own voluntary act, or 
 bv operation of law. The thief who steals an article, or the trespasser who takes 
 it" by force, acquires no title by such wrongful taking. The subsequent posses- 
 sion by the thief or the trespasser, is a continuing trespass. 
 
 If goods be taken lawfully, the person taking them will not become a tres- 
 passer ah initio by refusing to redeliver them when his authority to detain them 
 is ended (Gardner v. Campbell, 15 .Johns. 401). 
 
 An action on the custom against an inn-keeper or common carrier, for the loss 
 of baggage, is founded in tort or misfeasance, and not on contract (The People 
 v. Willett, 26 Barb. 78).
 
 § 422. WHAT CONSTITUTES. 383 
 
 asliore, and carried the residue to California, without giving 
 the passenger notice and reasonable opportunity to remove 
 it, it was held that the contract was broken and terminated 
 by the unlawful conduct of the defendant before the actual 
 sailing of the vessel; that a new relation thereupon arose 
 between the parties, and that the subsequent acts of the de- 
 fendant constituted him a trespasser.^ * Second Cong. Soc. 
 V. Howard ^ was an action of trespass for taking and carrying 
 away a title deed. It appeared that the deed was intrusted 
 to one Crafts for safe keeping, and that he gave it up to the 
 defendant, who was the grantor, at the request of the latter, 
 and because the grantee stated that he objected to the deed 
 at the time it was executed. It was held that the plaintiff 
 w^as entitled to judgment, but, that as his title to the land 
 was not divested by the giving up of the deed, unless he 
 released the land, he could recover nominal damages onl}-. 
 So, likewise, where a person delivered goods to another who 
 had no right to them, though he claimed he had, and agreed 
 to call on L. and make it satisfactory, and after obtaining 
 possession, refused to see L., but appropriated the property 
 to his own use, it was held that an action of trespass might 
 be maintained against kim by the person from whom he so 
 obtained the property.^ But whei'e the defendant, claiming 
 a sum of money as due to him from the plaintiff, his lodger, 
 locked up the plaintiff's goods in a room which the latter 
 held of the defendant, and in which the plaintiff had put 
 them, kept the key, and refused the plaintiff" access to them, 
 saying that nothing should be removed until the defendant's 
 bill was paid, it was held not such a taking of the goods as 
 would sustain an action of trespass.* f 
 
 ' Holmes v. Doane, 3 Gray, 328. 
 
 "^ 16 Pick. 206; and see Gibbs v. Chase, 10 Mass. 125. 
 
 = Hurd V. West, 7 Cowen, 752. * Hartley v. Moxham, 8 Ad. & E. K S. 701. 
 
 * In an action of trespass for untying the plaintiff's horse and removing him 
 from a hitching post which the plaintiff had as good a right to use as the de- 
 fendant, it was held that the plaintiff was entitled to recover (Bruch v. Carter, 3 
 Vroom, 554). 
 
 t In Stoughton v. Mott, 15 Vt. 1G3, which was an action of trespass for seiz-
 
 384 WKOiirGFUL taking of personal property. § 424, 
 
 § 423. The offense may be committed without any wrong- 
 ful intention. "Probably one half of the eases in which 
 trespass de honis asportatis is maintained arise from a misap- 
 prehension of legal rights." ^ In an action of trespass for 
 carrying away the plaintiff's boards, it appeared that the 
 defendant, having boards piled in a mill yard near to the 
 plaintiff's boards, sent his hired man to get his boards, telling 
 him to ask the sawyer to point them out, and that the man, 
 acting under the instructions of the sawyer, drew away, by 
 mistake, the boards of the plaintiff with those of the de- 
 fendant. It was held that the plaintiff was entitled to re- 
 cover, whether the fault was in the sawyer, or the hired man.^ 
 
 § 424. But, in order to maintain the action, it must be 
 shown that the taking was without the permission of the 
 plaintiff, either express or implied."^ Where the plaintiff's 
 witness testified that the plaintiff left in his possession a 
 number of tanned calf skins ; that the witness had no au- 
 thority to sell the skins, nor did he do so ; tliat the defend- 
 ant came to the witness' house to examine them, saying that 
 the plaintiff had authorized him to dispose of the same ; 
 that the defendant afterwards sold the skins, and they were 
 
 ing a sloop and certain arms and munitions of war, on board, under an act of 
 Congress which authorized such seizure when there Vi'as reason to believe that 
 the vessel was to be emph^yed in a niilitarj' expedition, the defendant's counsel 
 requested the court below to instruct the jury that the act of boarding the sloop 
 for the purpose of ascertaining the character of the loading was not a taking of 
 the vessel for which an action of trespass would lie. To this the court assented, 
 and charged this jury accordingly. It was, however, held on appeal, questiona- 
 ble whetlier the judge in so charging, did not go too far. 
 
 The phiintiff in an execution, cannot maintain an action against a third per- 
 son for taking away projaerty levied on, when it appears that there remained 
 enough subject to the execution, and bound by the levy, to satisfy the execution, 
 and that the plaintiff had either released the residue, or lost his lien upon it by 
 his own want of due care (Marsh v. Vv'hite, 3 Barb. 518). 
 
 A party who takes goods by trespass, cannot be charged as the trustee of the 
 owner to whom the wrong is done (Despatch Line of Packets v. Bellamy Manf. 
 Co. 12 N. Hamp. 205). 
 
 ' Metcalf, J., in Stanley v. Gaylord, 1 Cush. 536. 
 
 ^ May V. Bliss, 22 Vt. 477 ; but see 'post, § 427. 
 
 * An action of trespass cannot be maintained against the clerk of a ware- 
 houseman for selling goods stored in the warehouse by the advice of his em- 
 ployer, but without the knowledge or consent of the owner (Stafford v. Mercer, 
 42 Geo. 556).
 
 § 425. WHAT CONSTITUTES. 385 
 
 taken away from the witness' house ; tliat the defendant 
 brought the witness eight dollars as part of the proceeds of 
 the sale of the sldns, and requested him to give the same to 
 the plain tiif, which he did, and the plaintiff received the 
 money, and requested the witness to call upon the defendant 
 for the balance. It was held that, as the evidence disproved 
 any tortious taking, the action could not be maintained.^ 
 One of two partners made an assignment of the stock of the 
 firm in the name of the firm, in trust for the benefit of the 
 creditors of the firm. The other partner, who was a minor, 
 executed a power of attorney to his copartner, authorizing 
 him to execute the assignment on the minor's behalf. The 
 property was judiciously disposed of by the assignee, and 
 the proceeds distributed pro rata among the creditors, the 
 assignee, who was a creditor, retaining only his proportional 
 part of the proceeds. The minor, on coming of age, dis- 
 afiSrmed the assignment and power of attorney, and brought 
 an action of trespass against the assignee for the alleged un- 
 lawful taking and removal of the property. But it was held 
 that the action could not be maintained.^ 
 
 § 425. Where goods are taken by trespass from a tres- 
 passer, the owner may have an action of trespass against the 
 last taker.* Were it otherwise, and a tortious taking 
 changed the property of the goods, the trespasser could pass 
 a good title to a third person, and the owner would have no 
 remedy except against the original wrong-doer,^ But if 
 there be no fault on the part of the second taker, he cannot 
 be treated as a trespasser. It is a general rule that trespass 
 
 ' Wellington v. Drew, 16 Maine, 51. ^ Furlong v. Bartlett, 21 Pick. 401. 
 
 ' Barrett v. Warren, 3 Hill, 348. 
 
 "* Where an officer wrongfully attached a horse, and while it was in his cus- 
 tody, wrongfully attached it again on a writ in favor of another creditor, it was 
 held that the owner of the horse might maintain trespass against the officer and 
 the second attaching creditor jointly (Cox v. Hall, 18 Vt. 191). Williams, 
 Ch. .J.: "If the first taking was wrongful, the plaintiff was still, in contempla- 
 tion of law, the possessor, and could maintain an action against a subsequent 
 wrong-doer; and the charge was a reiteration of the doctrine that if a second 
 trespasser take goods out of the possession of the first trespasser, the owner may 
 maintain trespass agninst such second trespasser, liis act not being excusable." " 
 Vol. I.— 25
 
 33G WRONGFUL TAKING OF PERSONAL PROPERTY. § 42G. 
 
 will not lie against one wLo came to. the possession of the 
 goods by delivery, and without any fault on his part, al- 
 though the person who made the delivery had no title, and 
 was a wrong-doer.-^ As if A. take the horse of another, and 
 sell it to B., trespass does not lie against B.^ 
 
 § 426. As a general rule, a bailee of goods cannot set up 
 against his bailor that a third person has a better title to 
 them. But if the goods are taken from the bailee by au- 
 thority of law, exercised through regular and valid proceed- 
 ings, it will be a defense to an action by the bailor. The 
 bailee must assure himself, and show the court that the pro- 
 ceedings are regular and valid. But he is not bound to liti- 
 gate for his bailor, or to show that the judgment or decision 
 of the tribunal issuing the process, or seizing the goods, was 
 correct in law or in fact.^ * Although a wharfinger is the 
 agent of the person of whom he receives goo^s, and cannot 
 dispute the title of his principal in an action brought by the 
 principal against him, yet this w'ill not protect the goods 
 from an execution against the person thus depositing them ; 
 and if they are taken from the wharfinger or warehouseman 
 by lawful process, the wharfinger or warehouseman can de- 
 fend himself in a suit brought against him by the owner. 
 If the person from whom the w^harfinger or warehouseman 
 
 ' Marshall v. Davi?, 1 Wend. 109; Nash v. Mosher, 10 lb. 431; Wilson v. 
 Barker, 4 Barn. & Adol. 614; Bac. Abr. Trespass, E, 2. 
 
 '' Com. Dig. Trespass, D, B96. 
 
 ' Bliven v. Hudson River R. R. Co. 35 Barb. 188. 
 
 * The bailment of property with a power of sale being a personal trust, the 
 bailee has no authority to delegate this trust to another. Hunt v. Douglass, 22 
 Vt. 128, was au action of trespass against a deputy sheriff for attaching and 
 selling a horse. It appeared that the plaintiff was the owner of a certain horse, 
 which he put intd the possession of his brother, to be used and sold or ex- 
 changed by him, and that the bailee exchanged the horse with one Lee for an- 
 other horse. Lee agreeing to pay fifteen dollars as the difference, and that the 
 horse which Lee received should remain the property of the plaintiff until the 
 fifteen dollars were paid. It appeared further that, at the time of this transac- 
 tion between the bailee and Lee, that the former told the latter that he might 
 trade away the horse if he would keep the security good, and that Lee had 
 traded three times, and that the horse now in question was the one which was 
 obtained upon the third exchange. The fifteen dollars were not paid. The 
 county court having, upon the foregoing facts, given judgment for the defendant, 
 it was affirmed bv tlie Suprem.e Court.
 
 § 427. WHAT CO]!fSTITUTES. 387 
 
 receives the goods claims them by a void title, so that he 
 cannot lawfully hold them, and they are taken by authority 
 of law out of the custody and care of the wharfinger, the 
 latter may show this in excuse for not delivering them.^ 
 
 § 427. If a servant takes property by mistake, without 
 any direction or authority given him by his master to take 
 the particular property in question, and there is no subse- 
 quent assent or approbation, with a knowledge of the tres- 
 pass, on the part of the master, an action of trespass will not 
 lie against the master for the taking ; and his admission of 
 the fact that the servant had taken the property, and oifer of 
 payment therefor, will not be construed into an assent to, or 
 approbation of, the wrongful taking.^ Where a heifer got 
 into the possession of drovers by the act of their servant, 
 without their knowledge or assent, and continued in their 
 drove without their knowing that it was among their cattle, 
 it was held that they were not liable in trespass therefor, un- 
 less they failed to exercise usual and proper precautions.^ "' 
 
 ' Burton v. Wilkiuson, 18 Vt. 186. 
 
 ^ Broughton v. Whallon, 8 Weod. 474; and see Miller v. Baker, 1 Mete. 27; 
 but see ante^ § 423. 
 
 ' Brooks V. Olmstead, 17 Penn. St. R. 24. 
 
 * Where a sheriff places goods in charge of a receiptor, and the receiptor de- 
 livers them to a thii\i person, Vv'hose servant removes and leaves them at a dis- 
 tance, an action of trespass may be maintained against the servant, although he 
 was ignorant, at the time of the removal of the goods, of the sheriff's interest in 
 them (Sinclair v. Tarbox, 2 N. Ilarap. 135). This was an action of tresjjass for 
 taking and carrying away a sleigh and harness. It appeared tiiat the plaintiff, 
 being a deputy sheriff, attaclied the projierty, and delivered it, on receipt, for 
 safe keeping, to one A. ; tliat shortly after, A., having occasion to go away, re- 
 quested liis brother B. to take care of the property until wanted ; that thereupon 
 )i. absconded to the State of New York; and that the defendant, who was in 
 Ids employ, drove thither and left the property there, biit was ignorant, at the 
 time, of the plaintiff's interest in it. A verdict having been rendered for the 
 value of the property, subject to further consideration, the court said: " On the 
 facts of this case, trover is the more usual remedy, and would certainly have 
 been safer. But trespass also will lie if a tort has been committed; and the 
 plaintiff, having an interest in the slei'_'h, had also an actual, or the right to au 
 ar-tual, possession of it. In respect to the bailment, it may be conceded, for 
 the purpose of this argument, to be well settled, that, between parties to it, 
 trespass will not lie for a mere non-delivery of the property bailed. But the de- 
 fendant was no party to the original bailment, neither was his employer. And 
 if lie had l)een a party to it, the use and removal of the sleigh toIStew York were 
 acts so foreign to the nature and design of the bailment as to prevcmt all protec- 
 tion under it, and to subject the person who thus removed and left the sleigh, to 
 an action of trespass. This may not be on the ground that a bailee, in such case,
 
 388 WRONGFUL TAKING OF PERSONAL PROPBRTr. § 429.' 
 
 § 428. Where a party has a license to take or hold goods, 
 he will be liable as a tresj^asser if he meddle with the goods 
 after the revocation of the license. A mere license for the 
 purchase of lumber which is to be taken and measured from 
 a laro'er bulk, and to be an average lot as to thickness and 
 quality, may be revoked; and if the purchaser take it after 
 such revocation, trespass will lie against him therefor.^ In 
 an action of trespass, for wrongfully attaching the property 
 of the plaintiif, it appeared that some time after the attach- 
 ment an agreement was made between the plaintiff and de- 
 fendant, that the plaintiff should take the property, and if 
 the suit was not settled in a short time he should return it 
 to the defendant, who might then sell it. The property was 
 accordingly delivered to the plaintiff, and afterwards returned 
 to the defendant and sold, the plaintiff being present at the 
 sale and forbidding it. It was held, that the plaintiff had a 
 right to revoke the license to sell, and that the defendant, by 
 selling, became a trespasser.®* 
 
 2. Creditor obtaining possession of goods by unlaivfid means. 
 § 429. As a valid act cannot be accomplished by unlawful 
 
 becomes a trespasser ah initio; but that a destruction of the article bailed, or a con- 
 version to purposes altogether different from those intended, is without the scope 
 of the contract of bailment, and may be ]^rosecuted in the same way as if no bail- 
 ment existed. Tlius it is, that such acts of a bailee, if accompanied by other cir- 
 cumstances indicating a felonious intent, amount to larceny ; and every larceny 
 must involve a trespass." 
 
 ' Ockington v. Richey, 41 N. Ilamp. 275. 
 
 = Wallis V. Truesdell, 6 Pick. 455. 
 
 * In this case, the court said: "It has been objected that the license was ir- 
 revocable, because it was founded, on a sufficient consideration, and ought there- 
 fore to be considered as a valid contract. But we do not \-iew it in that light. 
 There was no sufficient consideration to support a contract. The agreement be- 
 tween Truesdeli and the plaintiff was of no beneSt to the plaintiff, nor was it 
 any damage to Truesdell. He had no legal right to the property attached, nor 
 had he any control over it. And if the agreement had been made between the 
 plaintiff and the officer, still it would be nudum pactum; for it was the officer's 
 duty to accept a good receipt for the property; and if not, he has not been in- 
 jured thereby, nor has the plaintiff received any benefit. We think, therefore, 
 the license was revocable; and having been revoked before the sale, the sale was 
 unauthorized; and thereby the defendants became trespassers ab initio. 
 
 It is no defense to an action of trespass for carrying away personal property 
 from the plaintiff's house, that it was done with the approval, and at the request, 
 of the plaintiff's wife, then living apart from her husband, although some of the 
 property belonged to her before marriage (Schindel v. Schindel, 12 Md. 108).
 
 § 429. CREDITOR OBTAINING GOODS UNLAWFULLY. 389 
 
 means, whenever such unlawful means are resorted to, all 
 persons actively participating therein will be deemed 
 trespassers, and the law will interpose to restore the party 
 injured to his rights.* Where therefore a creditor procured 
 the bringing of his debtor's goods into Massaclmsetts by 
 fraudulent representations, for the purpose of attaching them 
 there, the same being previously in New York, where they 
 were not liable to attachment, it was held that both 
 the creditor and officer were trespassers, although the latter 
 acted under a lawful precept, and although the officer before 
 he took the property had no knowledge of the fraudulent 
 acts of the creditor.^ In Parsons v. Dickinson,^ unlawful 
 means had been employed to keep the proj^erty of the 
 debtor from passing to the vendee, and to continue its 
 liability to attachment until the next day, and an attachment 
 was thereupon made; but it was held that an attachment 
 under such circumstances was ineffectual, and the- parties 
 making it were trespassers. In Ilsley v. Nichols,^ the attach- 
 ment had been preceded by an unlawful breaking open of a 
 dwelling-house, and it was held that as such unlawful means 
 had been used to exj^ose the property to the officer holding 
 the writ, the attachment was invalid, f 
 
 ' Deyo V. Jennison, 10 Allen, 410. 
 
 " 11 Pick. 352. ' 12 Pick. 269. 
 
 * A sailor who had lotlged several weeks at a public house, and also received 
 advances of cash from the person who kept it, having been paid his wages in 
 the presence of ^ the father of the publican, went to the house of the latter, and 
 drinking became intoxicated and fell asleep. The father of the publican in hia 
 fion's presence, desire .1 a young v.'oraan, an acquaintance of the sa-lor, to take 
 the money out of liis pocket, which she did, and laid it on the table. It was 
 Vil 17s. ad. The publican took it up, and said he would keep it until the man 
 got sober. The father told her to say when the sailor awoke that his money 
 was lost. The pul)lican said, she had"^ better be there in the morning when he 
 settled with the sailor. When the latter awoke and asked for his money, the 
 father said itVas all right until the morning. After this, at the request of the 
 sailor, a pound in silver was given to the young woman out of the money, and 
 the next morning, on his applying for the remainder, he was offered 2s. and 
 some copper as the balance after deducting what he owed the publican _ It was 
 held that an action of trespass would lie agsiinst the publican and his father 
 jointly, and that the sailor was entitled to recover the whole amount taken from 
 him without any other deduction than that of the pound afterward given to the 
 woman (Peddell v. Kutter, 8 Car. & P. 337). 
 
 t The plaintiff in an attachment suit will be protected oy the judgment, 
 although the alfidavit and bond submitted m the proceedings are defective.
 
 390 WIlO^sGFUL TAKIIs^G OF PERSONAL PROPEllTY. § 430. 
 
 3. Party directing illegal seizure or sale hy officer. 
 
 § 430. It follows from the rule to wbicli we have hereto- 
 fore adverted, as to the responsibility of a person who is 
 instrumental in the commission of a trespass by another/ 
 that one who directs or causes an officer to levy an execution 
 upon the property of a third person, is liable therefor, al- 
 though he does not otherwise participate in the ".wrongful 
 act.^ G. recovered judgment in an action of debt against D., 
 and employed his attorney, to v/hom he had previously as- 
 signed the debt in repayment of advances, to sue out execu- 
 tion. The attorney, who lived at Cheltenham, caused Sifi.fa. 
 to be sued out, directed to the sheriff of Buckinghamshire, 
 to levy on D.'s goods, and the attorney's London agent in- 
 dorsed on the writ : " The defendant resides at Wolverton, 
 and is an inn-keeper, levy," tfec. D. was, at the time, residing 
 with his mother-in-law at an inn, of which she was the pro- 
 prietor, at Wolverton, and was assisting her in the manage- 
 ment, but had no interest in the premises, or the goods upon 
 them. The sheriff, in execution of the ji. fa.^ seized goods 
 of the mother-in-law" at the inn. She brought trespass against 
 the attorney, and obtained a verdict upon the issues joined 
 on pleas of not guilty, and denial of her property in the house 
 and goods. On motion to enter a verdict for the defendant, 
 it was held that the verdict against the attorney, on the issue 
 upon not guilty, was maintainable, the facts furnishing 
 evidence that he had directed the shei'iff to levy on the 
 plaintiff's goods.^ Judson v. Cook,^ was an action for taking 
 the goods of the plaintiff who was a sheriff, and who held 
 them by virtue of a lev}^ The defendant, who was the 
 
 He cannot tlierefore be made liable ns a trespasser to a stranger to the proceed- 
 ings (Billings V. Russell, 23 Penu. St. R. 189). 
 
 ' Ante, §§ 23, 24. 
 
 " McGuintv v. Herrick, 5 Wend. 240; Percival v. .Tones, 2 -Tohns. Cas. 49; 
 Tavlorv. Trask, 7 Cowen, 249; Glover v. Horton, 7 Blackf. 295; Woodbridge 
 V. Conner, 49 Maine, 353; Stetson v. Goldsmith, 30 Ala. G02; s. c. 31 lb. 649; 
 Bruhl V. Parker, 2 Brevard, 40G; IMcNeeley v. Iluuton, 30 Mo. 332; Mitchell v. 
 Dubcse, 1 Rep. Con. Ct. 300; WMcklitle v. Saunders, 6 Mour. 296; but sec 
 Dameron v. Williams, 7 Mo. 138, and Kreger v. Ooborn, 7 Blackf. 74 contra. 
 
 " Rowles V. Senior, 8 Q. B. G77. " 11 Barb. 642.
 
 § 431. DlEECTlJS'G ILLEGAL SEIZURE BY OFFICER. 391 
 
 president of a bank, directed an attorney to sue a note be- 
 lonofino* to the bank, and lie, actino; under the instructions of 
 the defendant, caused the goods to be attached and sold by 
 a constable on an execution issued on the judgment obtained 
 in the attachment suit, notw'ithstauding the previous levy of 
 the sheriff. It was proved that the defendant knew of the 
 previous lev}", and that although requested by an agent of, 
 the plaintiff to relinquish the levy on the bank execution, ho 
 declined to do so. The defendant was at the sale and bid off 
 some of the propert)^ At the trial at the circuit, the plaint- 
 iff was nonsuited. The Supreme Court, in granting a new 
 trial, remarked, that taking the whole evidence together, it 
 made out a strong^ case connectino; the defendant with the 
 conversion ; and that the fact that he acted as the agent of 
 the bank, did not in the least diminish his liability."^ 
 
 § 431. It has often been decided, that if process be is- 
 sued without jurisdiction, the party who causes it to be 
 issued is liable as a trespasser.^ f If issued by competent 
 authority, and regular on its face, it may afford protection 
 to the officer for his acts previously done under it ; but none 
 whatever to the party. As to the latter, it is as though the 
 goods had been taken and detained without process.^ In 
 
 ' Vredenburgh v. Hendricks, 17 Barb. 179; Merritt v. Read, 5 Denio, 352; 
 Vosburgh v. Welcli, 11 Johns. 175; Miller v. Brinkerhoff, 4 Denio, 118; Sprague 
 V. Birciiard, 1 Wis. 457; Stone v. Chambers, 1 Strobh. 117. 
 
 ' Lyon V. Yates, 52 Barb. 237; Kerr v. Mount, 28 N. Y. 659; Chapman v. 
 Dyett, 11 Wend. 31; Smith v. Shaw, 12 Johns. 257; Havden v. Shed, 11 Mass. 
 500; Lodrington v. Lloyd, 8 Adol. & El. 449; Parsons v. Lloyd, 2 W. Black. 845. 
 
 * Where a landlord placed a warrant of distress for rent in the hands of an 
 officer and directed him to serve it, and the officer made an illegal levy and sale, 
 it was held that the landlord was iitible to his tenant for damages caused bysucli 
 levy and sale (Parkerson v. Wightman, 4 Strobh. 363). 
 
 t The reversal of the judgment on which the execution issued in an attachment 
 suit does not invalidate the levy or sale, or make either the party or the officer a 
 tresptisser. It merely annuls the title acquired by means of the sale, and entitles 
 the owner of the chattel to recover it h'om any one into v/hose possession it 
 has come (Keinmiller v. Skidmore, 7 Lans. 161). When, however, an attach- 
 ment, under cover of which goods are taken, is set aside for irregularity, it af- 
 fords no protection for such taking to the creditor who procured it to be is- 
 sued ; but only to the officer (Wehle v. Butler, 43 Ilow. Pr. R. 5; and see Lyon 
 V. Yates, and Kerr agst. Mount, supra. 
 
 An action of trespass may be maintained against a deputy clerk who wrong- 
 fully issues au execution tinder which goods are sold (Coltraine v. McCain, 3 
 Dcv. 308}.
 
 392 WRONGFUL TAKING OF PERSONAL PROPERTY. § 432. 
 
 Perkins v. Proctor/ it was held that trespass would lie 
 against the assignees under a commission of bankruptcy sued 
 out against a person not liable to be declared a bankrupt. 
 And where property of the defendant in an attachment suit 
 was taken and sold, at the instance of the plaintiff, on a 
 judgment rendered by a justice of the peace in favor of the 
 -plaintiff, no writ having been returned, and the defendant 
 not having appeared, it was held that both the plaintiff and 
 the justice were trespassers.^ When, however, a person does 
 no more than to prefer a complaint to a magistrate, he is not 
 liable in trespass for the acts done under the warrant which 
 the magistrate thereupon issues, even though the magistrate 
 has no jurisdiction ; though if the complaint is malicious, and 
 without probable cause, the complainant may be answerable 
 in another form of action.^ In Barker v. Stetson,* the de- 
 fendant made a complaint to a magistrate under the statute, 
 and therein prayed him to issue process for the seizure of the 
 plaintiff's liquors. The magistrate issued the process, and 
 an officer served it according to its precept. The section of 
 the statute under which the process was issued being uncon- 
 stitutional, the magistrate had no jurisdiction ; the process 
 was void ; and the service of it was a trespass upon the 
 plaintiff, for which the magistrate and the officer were an- 
 swerable. But it was held that the defendant was not liable 
 as a trespasser. And the plaintiff would not be liable with 
 the magistrate for the issuing of process without a sufficient 
 oath — the magistrate being the proper person to pass upon 
 its sufficiency.^ 
 
 § 432. A plaintiff is not liable for the irregular execution 
 of his process, unless he commands or sanctions it.^ If he 
 disavows the unlawful seizure, he will be held excused ; and, 
 
 ' 2 Wils. 382. " Selby v. Platts, 3 Chand. Wis. 183. 
 
 ' Brown v. Chapman, 6 G. B. 305; Carrattv. Morlev, 1 G. & D. 275; 1 Ad. & 
 El. N. S. 18; Cooper V. Harding. 7 lb. 928; West v. Smallwood, 3 M. & W. 418; 
 Barber v. RoUinson, 1 Cr. & M. 330; Chivers v. Savage, 5 El. A; Dl. 701 ; see aide, 
 §308. 
 
 * 7 Gray, 53. " Outlaw v. Davis, 27 111. 4G7. 
 
 • West V. Shockley, 4 Harring. 287; Abbott v. Kimball, 19 Vt. 551.
 
 § 432. DIRECTING ILLEGAL SBIZUKE BY OFFICER. 393 
 
 in the absence of proof, it will not be presumed that he di- 
 rected it.^ But it is otherwise when he permits the goods 
 to be retained for his benefit ; ^ * or w^hen he refuses to give 
 up the property wrongfully levied upon, although not pres- 
 ent when the property was tahen.^ Where goods are wrong- 
 fully seized under an attachment against another person, and 
 the owner of the goods files an interpleader which the plaint- 
 iff in the attachment defends, it will be deemed such a rati- 
 fication, on the part of the latter, of the acts of the officer, as 
 will render the plaintifi:' liable as a trespasser.* As a general 
 rule, in case of an irregular sale by an oflacer, where the mis- 
 take is one of fact, and such as makes the officer a trespasser, 
 and the party, knowing all the circumstances, consents to 
 take the avails of the sale ; or where he counsels the very 
 act which creates the liability of the officer, he is implicated 
 to the same extent as the officer. When, however, the party 
 does not direct or control the course of the officer, but 
 requires him to proceed at his peril, and the officer makes a 
 mistake of law in judging of his official duty, whereby he 
 becomes a trespasser by relation, the party is not affected by 
 it, even when he receives money which is the result of such 
 irregularity, although he was aware of the course pursued 
 
 ' 1 Chit. PI. 7th xim. ed. 91, 92; Averill v. Williams, 1 Denio, 501. 
 
 " Harrison V. Mitchell, 13 La. An. 260; Root v. Chandler, 10 Wend. 110; 
 Prince v. Flynn, 2 Litt. 240 ; Smith v. Felt, 50 Barb. 612 ; Shepherd v. Mc- 
 Quilkin, 2 W. Va. 90; Lewis v. Johns, 34 Cal. 629; Alfred v. Bray, 41 Mo. 484. 
 
 ' Cook V. Hopper, 23 Mich. 511. 
 
 * Perrin v. Claflin, 11 Mo. IB; Woolen v. Wright, 1 Hurl. & Colt. 554. contra. 
 
 * Root V. Chandler, mpra., was an action of trespass, for taking two horses 
 belonging to the plaintiff. It appeared that the horses having been seized under 
 an execution against a third person, the creditors of sucli third person, of wdiom 
 the defendant was one, had a consultation, and directed the officer to detain the 
 horses, agreeing to indemnify him; and that the officer, after keeping them a 
 few days, sold them. It was held, that although the defendant had no agency 
 in the first taking of the property, yet, as the plaintiff remained in the construct- 
 ive possession of it, notwithstanding the levy of the execution, the defendant 
 was liable as a trespasser. 
 
 Where goods of a party are seized under a process which has issued in a 
 suit in which such party is defendant, but the seizure takes place without the 
 knowledge or authority, or in the name, of the plaintiff in such suit, the circum- 
 stances that the goods aftervv-ard came to his hands, and that he. knowing the 
 facts connected with the seizure, refuses to give them up, do not make him a 
 trespasser (Wilson v. Tummon, 12 L. J, N. S. 307).
 
 394 WRONGFUL TAKING OF PERSONAL PROPERTY. § 433. 
 
 by the officer. He is not liable unless he consents to the 
 officer's course, or subsequently adopts it. He may always 
 take money which the officer informs him lie has legally col- 
 lected, without assuming the responsihilicy of indorsing the 
 perfect legality of the entire detail of the officer's official con- 
 duct in the matter; and the fact that the officer is compelled 
 to refund to the debtor, on account of the irregularity of the 
 procedure, will not affect the right of the creditor to retain 
 the money. ^ 
 
 § 433. Where, after process has fulfdled its purpose, the 
 officer continues to act under it by direction of the plaintifi, 
 both the officer and plaintiff are trespassers.^ In Vail v. 
 Lewis,*^ the gravamen of the first coiuit of the declaration 
 was, that the defendants maliciously caused and procured 
 the sheriff of Westchester to execute the test fi. fa. in his 
 hands after the payment of the judgment to the sheriff of 
 New York, on the execution previously delivered to him. It 
 was averred that the sheriff of Westchester made his levy on 
 the 2d day of December, which was after the execution was 
 returnable; and that he sold on the lOfch of the same month. 
 The court remarked that if the levy and sale did in f-ict take 
 place on those days, the sheriff was wholly unauthorized ; 
 and if the defendants caused and procured the proceedings, 
 nothing could be clearer than that they were all trespassers.* 
 
 ' Hyde v. Cooper, 28 Vt. 552, Redfield, Ch. J. 
 
 * Collins V. Waggoner, Breese, 2G. 
 => 4 Johns. 450. 
 
 * In Vail V. Lewis, S'lprn, the second and third counts of the declaration stated 
 the issuing of two executions — one to tlie sheriff of New York, and one to the 
 sheriff of Westcliester. The ground of complaint was, that after payment of 
 the judgment the defendants were bound to have countermanded the service of 
 the execution delivered to the sheriff of Westchester, so as to have prevented 
 the plaintilf's goods from being levied on and sold ; and that the de.'endants, 
 maliciously intending to injure the plaintiff, did not countermand, and that the 
 sheriff of Westchester did afterwards sell the plaintiff's goods. Held, that as 
 after the return of the execution its force was spent, and the defendants had 
 therefore no re:isou to api)rehend that the sheriff would proceed upon it, they 
 were under no legal or moral obligation to countermand it. 
 
 The recei])t by a person acting in an official capacity — 8. g., a county treas- 
 urer — of money collected l)y virtue of a process issued by him, after the return 
 day, will not make him a trespasser, unless he had notice that the money was 
 coliected after the return day (Van Rensselaer v. Kidd, 6 N. Y. 11. 331).
 
 § 431. DIRECTING ILLEGAL SEIZURE BY OFFICER. 395 
 
 § 434, In order to render tlie party jointly liable with 
 the officer, it must appear that they both participated in the 
 wrongful act. * A., having wrongfully sued out an attach- 
 ment against B., directed the sheriff to levy it on one-half of 
 a boat and cargo which B. and C. owned jointly. The sheriff 
 took the whole boat and cargo, and forbade C. interfering 
 with them, A.'s son being present at the time. It was held, 
 in an action of trespass against the sheriff and A. jointly, that 
 a joint verdict could not be rendered against them ; A. not 
 being. liable for the sheriff's acts in seizing properly upon 
 which no levy was directed; and the sheriff not being liable 
 for A.'s trespass in suing out the attachment, or directing a 
 levy on B.'s property.^ In Stoughton v. Mott, ^ which was 
 an action of trespass for seizing a sloop, and certain arms and 
 munitions of war on board of the same, under an act of Con- 
 gress which authorized such seizure when there was reason 
 to believe that the vessel was to be employed in a military 
 expedition, the court was requested to charge that if the 
 manner of boarding the vessel amounted to a taking, yet that 
 the defendant was not responsible unless he united or partic- 
 ipated in the order for such taking. The instruction Vv^as in 
 substance, that if the defendant knew of the intention to take 
 the sloop, and voluntarily assisted with his boat, he was, in 
 contemplation of law, a party and principal in the trespass. 
 The Supreme Court held, that in the last named particular, 
 the charge was correct ; it being such an invasion of the prop- 
 erty of the plaintiff as would amount to a trer[)as3, and for 
 which, unless justified, the defendant was liable. Where 
 there is but one taking of personal property by an officer 
 upon separate writs of attachment, sued out by two creditors 
 against the same debtor, the taking will be deemed the joint 
 
 ' Clay V. Saudefer, 12 B. Mon. 334. =■ 15 Vt. 1G2. 
 
 * A. and B., tlie defendants, went together to the house of the plaintiff's 
 raotlier. and A. seized there a sum of money beloniying to the plaintiff. There 
 was some evidence of A. and B. Iiaving gone with the intent to get the money, 
 but tlicre was no evidence tliat P>. went into the house. They subsequently paid 
 the money into a hank to their joint accoun*-. It was held that the; pi:Mntifr 
 migiit waive the trespass and maintain an action for money had and received 
 against the two defendants (Neate v. Harding, 80 L. J. 350).
 
 390 WRONGFUL TAKING OF PERSONAL PROPERTY. § 435. 
 
 act of tlie creditors in an action of trespass brought against 
 them and the officer for the taking ; but either of the defend- 
 ants would be at liberty to dispros^e any concern on his part 
 in the transaction, or to show that the attachments were 
 made at different times. ^ If a party turn out property to an 
 officer, and direct him to take it, and an action is brought 
 against him and tlie officer for taking the property, he can- 
 not set up in justification, that he acted in aid or assistance, 
 or by command of the officer. To entitle him to do so, there 
 must have been either a request from the officer, or it must 
 appear that aid or assistance was necessary, from which a 
 request may be implied. ^ 
 
 § 435. The act of an agent within the scope of his au- 
 thority, in causing the wrongful seizure of personal property, 
 will be deemed the act of his principal.^ A direction by 
 the attorney to the sheriff to take tlie goods of a third per- 
 son, under a writ of execution, is of this character, and will 
 render the client liable in trespass therefor.* * Where the 
 
 • Ellis V. Howard, 17 Vt. 330; Welile v. Butler, 43 How. Pr. R. 5, referring 
 to Creed agst. Hartmaun, 29 N. Y. 591, affi'g s. c. 8 Bosw. 123; Kasson agst. 
 The People. 44 Barb. 847. 
 
 " Merrill v. Near, 5 Wend. 237. 
 
 ^ Mills V. Dawson, Peake's Add. Cas. 59; ante, § 49. 
 
 ' Jarman v. Hooper, 1 Dowl. & L. 769; 13 L. J. N. S. 63; 8 Jur. 127. 
 
 * The approbation by a superior of a trespass committed by his inferior,»ren- 
 ders the superior a trespasser. lu Van Brunt v. Schenck, 13 Johns. 414. the 
 defendant was surveyor of the port of New York, and was sued for seizing a 
 schooner called the Nancy. A witness for the defendant testitied that he seized 
 the Nancy for a breach of the embargo laws, and immediately reported the 
 seizure to the defendant, who approved of what he had done. This, the Supreme 
 Court said, was a complete ratification and adoption of the act of seizure, and 
 ])ut the defendant in the same situation as if he had himself made the seizure. 
 Tlie defcjidaut had an interest in the seizure. Had the schooner been condemned, 
 he v.'ould have been entitled to a part of the forfeiture. The defendant, while 
 the schooner was under seizure, had used her to transport his goods from Hurl 
 Gate to New York. In Bishop v. Viscountess Montague, Cro. Eliz. 824, the 
 defendant's bailiff took five oxen as for heriots due to the defendant, when there 
 was not any due, without any command from the defendant; but she agreed 
 thereto, and converted the oxen to her own use. Two of the judges held that 
 she was liable in trespass, but not in trover, and the other two judges held that, 
 slie was liable in trespass or trover. In that case, a trespass was committed, and 
 the property taken and delivered to the defendant. She accepted the property, 
 and converted it to her own use — property which her baililT had wrongfully 
 taken for her; and she thus affirmed his act. But if a person, on'heariug that a 
 horse had been taken from a neighbor, should say "I am glad of it; I wish two
 
 § 435. DIRECTING ILLEGAL SEIZURE BY OFFICER. ,397 
 
 proj^erty of a third person is wrongfully sold under an exe- 
 cution, the sureties, in the bond of indemnity wliicii is 
 given to tlie sheriff to procure the sale, are liable as tres- 
 passers;^ on the ground that, as the bond contemplates the 
 sale, it is a virtilal request to the sheriff to make it, and that 
 what the officer does is in effect done under the direction, 
 and with the advice and concurrence, of the sureties.'^ But 
 the liability would not extend to the scrivener who drew the 
 bond.* When a creditor executes a bond of indemnity to 
 the officer after a wrongful levy, he is a joint trespasser with 
 the officer as to all that is clone with the property afterward.'^ 
 But it is otherwise of a third person who participates in the 
 enjoyment of personal proj)erty wrongfully taken, but with- 
 out exercising any control over it, or over the wrong-doer. 
 In Hubbard v. Hurit,^ which was an action of trespass for 
 taking a horse and wagon, it appeared that the horse and 
 
 horses had been taken instead of one, " he would not thereby make himself a 
 trespasser. / 
 
 In Bacon's Ab lid gment — Trespass— G, 1 — it is said: "If J. S. agree to a 
 trespass which has been committed by J. N. for his benefit, this action lies 
 against J. S., althoi;gh it was not done in obedience to his command, or at his re- 
 quest." So, in Com. Dig. Trespass, c. 1. it is said " that trespass lies against him 
 who afterwards assents to a trespass done for his use or benefit, though not privy 
 at the time of doing it." But "if he assents to the act of his servant in seizing 
 goods, he will be a trespasser for misusing tlie goods in seizure, though not i)rivy 
 to the misusage." In Gibson's Case, Lane, 90, two or three strangers, affirming 
 that they were servants of Gibson, seized the plaintiff's goods; and it was held, 
 that " if they, as servants to Gibson, without his precedent appointment, did seize 
 the plaintiff's goods, and the said Gibson approved them to be seized, although 
 his servants, without his consent, abuse the goods, yet Gibson shall be trespasser 
 ab initio." 
 
 ' Wetzell V. Waters, 18 Mo. 396; Murray v. Ezell, 3 Ala. 148. 
 
 " Davis V. Newkirk, 5 Denio, 92. 
 
 ' Lovejoy v. Murray, 3 Wallace, 1. * 41 Vt. 376. 
 
 * Upon the same jDrinciple which shields the attorney who simply conveys to 
 the officer the instructions of his clients, where the party directing the seizure 
 finds it convenient to empower his attorney to execute the instrument of in- 
 denmity in his name and behalf, as his agent, the attorney so executing it 
 as agent will not be a partj' to the seizure, so as to make him a trespasser if it 
 turn out to be unwarranted. The act of executing the bond as attorney would 
 be harmless, provided he acted under sufficient authority from his principals. 
 In Ford agst. Williams, 13 N. Y. R. 577, the question arose, whether the fact 
 that the attorney used a seal when he had no right to do so, and when that cir- 
 cumstance did not impair the contract which he made (the contract being the 
 preci.se one which he was authorized to make), so changed his relation to the 
 seizure as to render him liable as a party aiding or abetting its commission; and 
 it was held that it did not.
 
 398 WRONGFUL TAKING OF TBRSOXAL PEOPEKTY. § 435. 
 
 wagon were hired by one Quiraby to go to Barton ; that he 
 invited tlie defendant to ride with him; and that he drove 
 "beyond Barton to Newport, where he left the team. At the 
 trial of the cause in the court below, the court were re- 
 quested by the plaintiff to instruct the jury that "if they 
 found that Quimby hired the team to go to Barton, and no 
 further, and so informed the defendant, that when the de- 
 fendant went with Quimby in said team from Barton to 
 Newport, he became equally a trespasser with Quimby." The 
 court refused so to instruct, lait charged that "though the 
 defendant knew that Quimby hired the team to go to Bar- 
 ton, and no further, still if he merely rode from Barton by 
 invitation of Quimby, and exercised no control over the 
 team, he would not be liable ; " and this instruction was sus- 
 tained on appeal.'"'' 
 
 * In Hubbard v. Hunt, sripra, the Supreme Court, in sustaining the instruc- 
 tion, said: "The plaintift's request goes upon the ground that tlie fact that the 
 defendant merely rode \vith Quimby, with knowledge that Quimby hired the 
 team to go to Barton, and no further, made the defendant a trespasser, even 
 though he exercised no control over the team or Quimby. This proposition of 
 the plaintiff cannot be sustained by the authority of any well considered case, 
 ,nor upon principle. To constitute the defendant a trespasser, it was not neces- 
 sary for the ])laintiff to prove that the defendant had any knowlege or informa- 
 tion as to the terms of the bailment of the team to Quimby. The question 
 whether the defendant was liable depended upon his own acts in respect to the 
 team, and not on his information as to whether Quimln^ had a right to go with 
 the team from Barton to Newport. Suppose that Quimby had overtaken the 
 defendant just after he left Barton for Newport, and invited him to ride, saying 
 to him that he hired the team to go only to Barton, but had concluded to go on 
 to Newport, and the defendant had accepted the invitation, ridino- with Quimby. 
 but exercising no control over the team; it would be a very harsh rule to hold 
 that riding with Quimby under such circumstances, either with or without 
 knowledge that Quimby would, by going to Newport, exceed his authority as to 
 the use of the team, constitute the (iefendant a trespasser. Again, suppose that 
 Quimby had told the defendant that he (Quimby) hired the team to go to Bar- 
 ton, and from that place to Newport, and the defendant had. in going from 
 Barton to Newport, exercised control over the team, he would be a trespasser, if 
 the use of the team from Barton to New[)ort was not authorized by the owner, 
 notwithstanding his ignorance of the fact that Quimby hired the team to go to 
 Barton, and no further. The words in the charge, 'if the defendant merely 
 rode from Barton, by invitation of said Quimby, and exercised no control over 
 the team, he would not be liable,' cover the whole ground. They made the 
 plaintiff's right of recovery depend on the finding of the jury, that the defend- 
 ant did exercise control over the team ; and from the charge the jui-y must have 
 understood that if they found that the defendant, by his acts or declarations, 
 either directly or through Quimby, in respect to the team, did exercise control 
 over it, the plaintiff would be entitled to recover. The jury failing to find such 
 fact, the defendant was entitled to their verdict."
 
 § 437. DIRECTING ILLEGAL SEIZURE BY OFFICER. 39!) 
 
 § 436. A mere purchaser at a sheriff's sale, of personal 
 property tortiously levied on, under an execution against 
 another, is not responsible in trespass for the wrongful act of 
 the sheriff': his purchase not in itself making liini a j^artici- 
 pant in the wrongful seizure, or a trespasser by relation. ^ 
 Where a part of a quantity of saw logs were wrongfully 
 levied upon, and tlie logs aft(3rward sold on the execution, 
 without distinguishing which part, and the buyer neither 
 took possession, nor assumed any dominion or control over 
 the property, although he gave his note for the amount of 
 the sale, which was not due when the action was brought, 
 it was held that trespass would not lie against the officer and 
 buyer. ^ '^ 
 
 § 437. A person who sues out a void process of attach- 
 ment, and causes it to be levied upon the property of another, 
 becomes liable for all of the injury that results therefrom, ^f 
 In Kerr v. Mount,'* which was an action for the illegal seiz- 
 ure under an attachment of goods belonging to the plaintiff*, 
 counsel for the defendant contended that if the seizure were 
 considered to be illegal, and an act of trespass on the part of 
 the defendant, still the injury to the property, by the negli- 
 gence of the sheriff's officer, was not chargeable to the de- 
 fendant, but only to the sheriff; that the defendant, by pro- 
 
 ' Talmadge v. Scudder, 38 Penn. St. R. 517; Jaues v. Martin, 7 Vt. 93. 
 
 - Coukey v. Amis, 13 Ind. 260. 
 
 ^ Peak V. Lemon, 1 Lansing, 295; Lyon v.. Yates, 52 Barb. 237. 
 
 " 28 N. Y. 659. 
 
 * When property is unlawfully sold under an execution, neither the official 
 character of the vendor, nor the publicity of the sale, will legalize it. But sales 
 of property authorized by law, will be uplield, notwithstanding irregularities in 
 the proceedings. Public policy requires that the innocent purchaser sliould not 
 suffer by the misconduct of an officer executing a legal precept within his author- 
 ity and jurisdiction (Wheelwright v. Depevster, 1 Johns. 471 ; Carter v. Simp- 
 son, 7 lb. 535; Saltus v. Everett, 20 Wend. 267; Com. v. Kennard, 8 Pick. 133; 
 Cooper v. Chitty, 1 Burr. 20 ; Syrpouds v. Hall, 37 Maine, 354). 
 
 t As the issuing of an attachment is a judicial proceeding, it has been held 
 that trespass will not lie against a party for causing an attachment to be issued 
 in a suit on a debt not payable until after the commencement of the action (Ivy 
 v. Barnhartt, 10 Mo. 151). An action cannot be maintained for maliciously 
 •suing out an injunction until the final disposal of the injunction, or until the 
 suit in whicli it was sued out is terminated (Tatum v. Morris, 19 Ala. 302).
 
 4v00 WRONGFUL TAKII^G OF PERSONAL PROPERTY. § 438. 
 
 curing the process and placing it in the hancTs of the officer, 
 became responsible only for conduct on the part of the officer, 
 which he would have had a right to pursue, if the process 
 had been valid ; that the defendant did not direct or counte- 
 nance the culpable negligence and misconduct by which the 
 property was injured, but only the seizure of it, and the 
 keeping of it securely and carefully; that if he had only 
 done this, the property would have been returned to the 
 plaintiff in the same state it was in when seized, and the 
 damages would have been nominal. It was held, however, 
 that the officer in such case, being the agent or servant of the 
 party in whose favor the process was issued, the party was 
 clearly liable for any injury to the goods caused by the neg- 
 ligent or careless acts of the officer while such goods were in 
 his possession, 
 
 § 438. Where goods wrongfully levied upon, are sold in 
 consequence of indemnity executed to the officer by a subse- 
 quent execution creditor, the latter will be liable in trespass 
 for the full value, notwithstanding the proceeds of the sale 
 went to satisfy the first execution.^* If the party, after 
 causing the wrongful seizure of goods, again causes the seiz- 
 ure of the same property upon process that is valid, and 
 regular, it does not purge the original wrong, nor go in miti- 
 gation of damages. By procuring a sale on legal process, of 
 property wrongfully taken, the wrong-doer cannot be better 
 
 ' Weber v. Ferris, 2 Daly, 404 ; 37 How. 102. 
 
 * In Weber V. Ferris, supra, the court said : "The defendants as indemnitors 
 and directors of the sheriff, are liable as original trespassers. There is nothing 
 in the point that the goods had been previouslj^ levied upon under a prior execu- 
 tion. That was a mere formal and techuical levy, which the officer would not 
 have pressed without an indemnity. It was made in the ordinary routine of 
 duty without instructions from the plaintiff in the execution. The seizure and 
 sale of the goods, and their consequent loss to the plaintiff, resulted from the 
 special instructions, and indemnity given upon their execution, by the present 
 defendants. The application of the proceeds of the trespass was immaterial, and 
 the fact that they went to satisfy the first execution, did not tend to mitigate 
 the damages. The trespass consisted in the seizure of all the property, and the 
 defendants, as directors and indemnitors, are liable for its full value. If they 
 were unwilling to assume so great a responsibility, the particular part of tlv 
 property upon which a levy was to be risked, should have been pointed out and 
 separated."
 
 §§ 439, 440. EIGHT OF ONYNER TO RETAKE GOODS. 401 
 
 • 
 
 off than he would have been if he had offered to restore the 
 property to the owner. But no tender will, at common law, 
 either bar an action for a tort, or take away the right to full 
 compensation. -^ 
 
 4. Higlit of O'wner of goods to retalm them. 
 
 8 439. It is a o-eneral rule that the owner of broods which 
 have been wrongfully taken, may, so long as their identity 
 can be established, lawfully repossess himself of them where- 
 ever they can be found ; ^ and where timber was wrongfully 
 put into the frame of a boat, it was held that the owner 
 might take possession of it, without being liable as a tres- 
 passer.^ But the recaption must be made in a peaceable 
 manner.* If done with a breach of the peace, the party 
 would be answerable criminally. The riot or force would 
 not, however, subject the owner of the chattel to a restora- 
 tion of it ; ^ nor to an action of trespass,^ unless the force was 
 excessive. 
 
 § 440. Where a purchaser of personal property obtains 
 it from the owner by falsehood and fraud, he acquires no 
 right to it, and the seller may pursue him and retake the 
 property, using no more force than is necessary for that 
 purpose ; and if the purchaser resists the retaking, he be- 
 comes the aggressor; and the seller may employ such ad- 
 ditional force as is required to regain the property.''' As 
 between the owner and the person thus obtaining possession, 
 or between the owner and the existing creditors of such 
 
 ' Otis V. Jones, 21 Wend. 394; Hanmer v. Wilsey, 17 lb. 91; Higgins v. 
 Whitney, 24 lb. 379; post, § 445. 
 
 '' Rogers v. Fales, 5 Pcnn. St. R. 154; ante, § 1G7. 
 
 ' Burris v. Johnson, 1 J. J. Marsh. 19G. 
 
 ^ Barnes v. Martin, 15 Wis. 240; Wilson v. Hooper, 12 Vt. C55; Beecher v. 
 Parmele, 9 lb. 35G; Dustin v. Covvdry, 23 lb. 631; Mussey v. Scott. 32 lb. 82: 
 Sampson v. Henry, 11 Pick. 379; Shipman v. Horton, 17 Conn. 481; Gregory v. 
 Hill, 8 Term R. 299 ; Kunkie v. State, 33 Ind. 220. 
 
 " Hyatt V. Wood, 4 Johns. 150. 
 
 « Mills V. Wooters, 59 111. 234. 
 
 ' Hodgeden v. Hubbard, 18 Vt. 504. 
 
 Vol. I. -26
 
 402 WRONGFUL TAKING OF PERSONAL PROPERTY. § 441. 
 
 person, no property would pass out of the real owner, and 
 Le might reclaim it as against such person or his creditors.^ 
 
 § 441. Where goods, which are exempt from levy and 
 'sale, are taken on execution, the owner may recover posses- 
 sion of them peaceably ; and after he has done so, it will be 
 trespass in the officer to retake them, and assault and bat- 
 tery, to retake them with force.^ So where a public officer 
 attaches the goods of one person, upon process against an- 
 other, and the true owner afterward peaceably obtains pos- 
 session of them, and the officer brings trespass for such taking, 
 the defendant may show his right and defeat the action." * 
 
 ' BufBngton v. Gerrish, 15 Mass. 156; Badger v. Phinney, lb. 359. 
 
 ' Sims V. Reed, 12 B. Mon. 51. = Merritt v. Miller, 13 Vt. 416. 
 
 * "To reject such a defense, and thus permit the plaintiff to recover the vakie 
 of the property, when he is confessedly liable to refund that same money to the 
 defendant, in an action brought by him against the plaintiff for the original tak- 
 ing, if the facts now offered to be shown shoiikl be established, would lead to 
 unnecessary circuity of action. Such a course too, would involve the novel con- 
 tradiction and absurd impropriety of deciding the same question of i^roperty in 
 a civil action between the same parties in modes wholly irreconcilable, as either 
 one or the other of the parties happened to be plaintiff" or defendant " (Merritt v. 
 Miller, svpra, per Redfield, J.). 
 
 But one of two joint owners of personal property has no right to take it 
 forcibly from an officer who has attached it on legal process against the other 
 joint owner; and if he do so, the officer may maintain trespass against him there- 
 for (Whitney v. Ladd, 10 Vt. 165). By tlie court : " If the joint owner may re- 
 take from the officer, he may resist the officer in taking at all. This would 
 practically deny the power of attachment of the property on one owner's debt. 
 To say that an attachment can be made, and the property still left or permitted 
 to go back into the possession and control of a copartner, would enable him to 
 sell each article to as many different purchasers as he could divide it into parts, 
 and to sell the whole, in the entirety, such purchasers having no notice of the 
 attachment, and thus put it utterly beyond the reach of the officer or attaching 
 creditor, or the purchaser under the officer's sale to follow it; and if it could ])e 
 followed into third persons' hands, they would hold it as joint owners when they 
 purchased the whole in good faith. It is impossible to hold that the interest of 
 one" joint owner of personal property can betaken and sold on his individual 
 debt, consistently with our laws, without holding that the possession by the of- 
 ficer, is paramount to all others. The whole weight of the argument for the de- 
 fendant is founded on this, that the attaching officer takes only the interest and 
 possession of one joint owner; and, as at law, one joint owner may. at any time, 
 take the possession from the other, it is therefore concluded he may take 
 it from the officer; and it would necessarily follow, if the property were co- 
 partnership effects in trade, he could continue to sell to customers, until all was 
 sold. This is quite plausible; but in truth, the officer is not the keeper for the 
 partner whose interest he takes. He is keeper for the law; and other interests 
 are involved besides the owner's, with which the right of recapture is inconsist- 
 ent, and therefore superseding that right. When a man conjoins his interest 
 with another in the ownership of personal chattels, his right of possession is 
 necessarily subject to this paramount right of the law."
 
 § 442. RIGHT OF OAYXEE TO RETAKE GOODS. 403 
 
 § 442. Upon a conditional sale of goods, the seller may, 
 upon forfeiture of the condition, lawfully repossess himself 
 of them. Where a cow was sold on condition that if the 
 buyer should pay for her, she was to be his, otherwise to 
 remain the property of the seller, and the buyer took the 
 cow and kept her three or four years, and paid part of the 
 price, but, upon being requested, ueglected to pay the residue, 
 and the son of the vendor, by his direction, drove the cow 
 back, it was held that the son w^as not liable in trespass 
 therefor.^ * 
 
 » West V. Bolton, 4 Vt. 558. 
 
 * In this case the court said: "The plaintiff having failed to fulfil the con- 
 ditions on the performance of which he was to have the property, all his claim 
 at law was gone. Whether he had any equitable right is not here the matter 
 in dispute. The owner might retake the property again, and divest the plaintiff 
 of possession, and would not be guilty of any trespass in so doing. The perform- 
 ance of the condition was neither rescinded or waived, but insisted on ; and it was 
 in accordance with the contract that the owner proceeded to take the property, 
 into his possession. As the plaintiff had not performed the condition precedent 
 on the performance of which the property was to pass, the jury was rightly 
 directed, that the facts, if believed, entitled the defendant to a verdict." 
 
 Earl sold, by conditional sale, an old wagon to Mclntyre, reserving title to 
 himself till Mclntyre should pay for it. Mclntyre took it into his possession 
 and use. and made extensive repairs upon it. In its improved condition, it was 
 sold or turned out by Mclntyre to Cliild & Benton, at a specified price, to go in 
 payment upon a subsisting indebtedness of Mclntyre to them. Very soonafter 
 this transaction, Mclntyre not having paid Earl for the wagon, Allen, a deputy 
 sheriff, took the wagon by direction of Earl, upon a writ in his favor against 
 Mclntyre, and sold the same upon execution issued upon a judgment recovered 
 by Earl, in pursuance of said attachment. At the time of the attachment 
 Mclntyre owed Earl not only for the wagon, but a considerable sum beside, as 
 the balance of current accounts between them. An action of trespass having 
 been brought l)y Child & Benton against Allen for taking the wagon, it was held 
 that it could not be maintained. Barrett, J. : '"Of course, the plaintiffs must, in 
 the first instance, stand upon such title as would give them the right to retain 
 an<l hold the wagon against the defendant, as the agent and servant of Earl. It is 
 now too late to call in question the right of a vendor by conditional sale, to 
 assert his title to the property. A purchaser from the conditional vendee ac- 
 quires no rigtit against the original owner by virtue of such purchase, and even 
 may become a trespasser in the eye of the law by making such a purchase, and 
 taking possessicm of the property under it. There is a reason in this case, if 
 reason were necessary, why Earl resorted to an attachment. By virtue of the 
 terms of the sale, his right to the wagon would have been satisfied by a tender 
 of the amount of his lien, by an attaching creditor, and perhaps by an assignee. 
 But until such tender, his possessory right continued perfect and absolute. As 
 against the effect of such a tender, it may have been, and probably was, desirable 
 to him to fasten upon the property for its entire value, not only in virtue of his 
 lien for the original price of its purchase, but aLso as a means of turning it to 
 account upon his debt against Mclntyre, outside of the purchase money due for 
 the wagon " (Ciiild v. Allen, 33 Vt. 47G).
 
 404 WRONGFUL TAKIKG OF PERSONAL PROPEnTY. § 443. 
 
 § 443. If a person intrusts goods to another to be re- 
 turned in a given time, tlie owner, at the end of the time, 
 may take them from one having a wrongful possession. 
 Accordingly, where, by the terms of an agreement in writing 
 between A. and B,, A. left with B. a horse, to be kept six 
 months, and if B. then paid twenty-five dollars, he w^as to 
 have the horse one year longer, and if he paid twenty-five 
 dollars more at the end of the year, the horse was to be the 
 property of B., and B. sold the horse without having fulfilled 
 the terms of the agreement, it was held that the act of sale 
 terminated the bailment, and gave A. the right to take im- 
 mediate possession, and to retain it until paid the balance 
 of the purchase mouey.^* And w^here it w^as agreed be- 
 tween A. and B. that a pair of cattle should be delivered to 
 B., " to keep and use in a farmer-like manner for one year," 
 B. to have the privilege of keeping them upon payment of a 
 price named, and the cattle were accordingly delivered to B., 
 it w^as held to be a bailment, and not a conditional sale ; and 
 the cattle having been sold by the bailee during the year, 
 without having paid for them, it was held that the owner, 
 after the year had expired, could follow and retake them, 
 without being liable as a trespasser to the person from whom 
 they were taken, though a purchaser for value.^ So, on the 
 other hand, if the owner of goods, after parting with them 
 for a valuable consideration for a specified time, takes them 
 back before the expiration of the time agreed, the rightful 
 possessor may lawfully retake them. The plaintifl:" having a 
 
 ' Dunham v. Lee, 24 Vt. 432. ' Chamberlain v. Smith. 44 Peun. St. R. 431. 
 
 * In Lee v. Atkinson, Cro. Jac. 236; s. c. Yelv. 172, where the owner cf ;i 
 horse let it for two days, and finding that the person who hired it was going 
 anotlier way than that for which lie hired the horse, by force retook the horse 
 within the two days, it was held that he was not justified, not because he 
 might not retake his own, but because he had parted with the possession for 
 those two days; thus recognizing the riglit of recapture, though not under sucli 
 circumstances. So, too, if a distress is taken without cause, or contrary to law, 
 before it is impounded, the party may rescue it (Co. Litt. 160; 3 Blk. Com. 12; 
 Cotsworth V. Betison, 1 Ld. Raym. 104; s. c. 1 Salk. 247). 
 
 Where the bailee of goods agrees either to return the property bailed, or to 
 deliver other property of the same kind and quality, the obligation on the part 
 of the bailee rests in contract, and until delivery is made by him the bailor has 
 no vested interest in the property (Hurd v. West, 7 Cowen, 752).
 
 § 444. RIGHT OF OWNER TO RETAKE GOODS. 405 
 
 COW pasturing in the defendant\s field, and being indebted 
 for the agistment, agreed that the cow should be a security ; 
 that he would not remove her until the defendant was paid, 
 and that, if he did, the defendant might take here wherever 
 she might be, and keep her until he was paid. The plaintiff 
 having removed the cow v/ithout paying the debt, and the de- 
 fendant having seized her in the highway, in an action of tres- 
 pass for the taking, it was held that the agreement might be 
 set up as a defense under a plea that the cow was not the 
 plaintiff's.^ A. entered into an agreement with B., in con- 
 sideration of four hundred dollars, to hire to him for a year 
 certain slaves, and to oversee them, and work as a laborer 
 for B. B, afterward, for good and sufficient cause, discharged 
 A. from his service ; and A. having taken the slaves away 
 with him when he left, B. with another person pursued him, 
 and took back the slaves ; whereupon A. brought an action 
 of trespass against B. and *the other. It was held that, al- 
 though the hirins; of the slaves and of A. as an overseer was 
 an entire contract, yet B.'s title to the slaves was not divested 
 by the discharge of A. from his service, and that B. had a 
 right peaceably to reclaim their possession.^ 
 
 § 444. If an infant rescinds a contract for the sale of 
 personal property made by him, and the title is thus rein- 
 vested in him, an action of trespass cannot be maintained 
 against him for taking the goods.^ But goods sold upon 
 credit, cannot law^fully be seized by the seller upon the 
 failure of the buyer to make payment. Where a vendor 
 sold and delivered goods without payment, and then being 
 apprehensive that he would never be paid, took them away 
 from the debtor, and the latter brought an action therefor, it 
 was held that the jury had no right to consider, in mitiga- 
 tion of damages, the fact that the goods had not been paid 
 for, and that there was reasonable ground to believe that 
 
 ' Richnids v. Symons, 8 Q. B. 90. ' Leaird v. Davis, 17 Ala. 448. 
 ' Shipman v. Ilorton, 17 Conn. 481.
 
 40G WRONGFUL TAKING OF PERSONAL PROPERTY. § 445. 
 
 the vendee would never pay for tliem, as that would be tan- 
 tamount to allowing a set-off of a debt in an action of tres- 
 pass.^ 
 
 5. Return of ijropertij hy wrong-doer. 
 
 § 445. As previously stated,^ a subsequent tender by tbe 
 wrong-doer will not excuse bim if I clioose to demand the 
 value. Where, therefore, the property of the plaintiff was 
 illegally sold for a school district tax, bid off' by the plaintiff's 
 agent, and paid for with the j)laintiff's money, it was held 
 that the offer to deliver up the note of the agent, or to pay 
 the same amount in money to the plaintiff, could not change 
 the rule of damages.^ And a return of the property, though 
 it be accepted by the owner, is not available in bar of the 
 action, but only in mitigation of damages.^ ^' Where, how- 
 ever, goods are taken by virtue of an attachment illegally 
 issued, ic cannot be shown, even in mitigation of damages, 
 that the property taken was afterward applied without the 
 consent of the owner to the satisfaction of a valid execution 
 against him.^ f But it has been held otherwise, where 
 
 ^ Gillard v. Brittan, 8 M. & W. 575. 
 
 " Ante, § 438. 
 
 = Clark V. Hallock, 16 Wend. 607. 
 
 * Tibbs V. Chase, 10 Mass. 125; Caldwell v. Arnold, 8 Minn. 265. 
 
 ' Pickering v. Truste, 7 T. R. 53. And see Earle v. Holderness, 4 Bing. 462. 
 
 * The delivery and acceptance of a man's own property does not constiMite a 
 satisfaction. Where, therefore, in an action of trespass for an unlawful entry 
 upon land, the defendant set up that after the entry there was an accord be- 
 tween him and the plaintiff, that the plaintiff should re-enter and enjoy the 
 land without interruption by the defendant, and thut the defendant should 
 deliver to tlie plaintiff all the title deeds, which was done; it was held thnt this 
 was no answer, as it must be presumed that the title deeds belonged to the 
 plaintiff, and to deliver him his ov,-n deeds, and put him in possession of his own 
 land, was no satisfaction of the previous wrong in keeping him out. It was, 
 however, admitted, that if the defendant had shown any title in himself to the 
 possession of the deeds, his delivering them up would have been a good bar to 
 the action (Bro. Abr. Accord. 1). 
 
 t In Hanmer v. Wilsey, 17 Wend. 91, Wilsey brought an action of trespass 
 against Hanmer for taking a horse under an attachment illegally issued by a 
 justice of the peace. The officer who took the horse from the stable of Wilsey, 
 by the direction of Hinmer, discovering the illegality of the proceeding, re- 
 turned him to the stable, but Wilsey declined to receive the horse. Hanmer 
 then caused an attachment to be legally issued, by virtue of which the horse was 
 taken, and subsequently sold, under the judgment obtained in the attachment
 
 § 440. RETURN or PROPERTY BY WRONG-DOER. 407 
 
 the property is taken again from the trespasser without any 
 agency or connivance on bis part, and applied to the owner's 
 use, although without the latter's consent, by the act of a 
 third party.^ 
 
 § 446. The fact that the owner of the goods has sold 
 them subsequent to their being taken, will not purge the 
 original wrong. Where drovers, having driven away a 
 heifer, afterward bought it of the owner, reserving the ques- 
 tion of damages for taking it away, it was held that such 
 purchase would not bar an action of trespass for the removal. 
 The wrong was not atoned for or satisfied, and the original 
 action remained, as well by the understanding of the parties 
 as by the operation of law.^ A. loaded the materials of a 
 building: belonuino- to B. on to his wmj-on and drove off, B. 
 threatening to prosecute him if he did not carry them back. 
 
 suit, and bought by Hanraer. The Supreme Court, in affirming the judgment of 
 the Common Pleas, which was for the plaintiff", said: "There was no ground for 
 mitigating the damages. The horse had been wrongfully taken, and the plaintiff 
 had a right to insist on being paid the value. The actual return of the horse to 
 the plaintiff's stable without his assent was a matter of no legal consequence. 
 If the plaintiff had consented to receive the property, it would not have defeated 
 his action altogether. It is not a defense which can be pleaded; it only goes to 
 the question of damages. The plaintiff refused to receive the property, and 
 insisted on his legal riglit to recover the value, as well as damages for the illegal 
 taking. It can make no difference in principle that the horse was only kept a 
 short time. The injury was complete, and the plaintiff's right of action was as 
 perfect the moment after the horse was first led from liis stable as it could have 
 been after the lapse of a month or a year. The defendant could not, by any act 
 of his own, without the plaintiff's consent, defeat the action. I was first inclined 
 to the opinion that the second taking of the horse on valid process against the 
 plaintiff, might be regarded as equivalent to an acceptance of the property 
 when tendered, and that the damages should be mitigated on that ground. It 
 may be doubted whether this question can properly be made on the bill of ex- 
 ceptions. But, waiving that consideration, the return and subsequent retaking 
 of the property could not change the plaintiff's rights. They were complete, 
 and he has done nothing to relinquish them. He said, in effect, to the defend- 
 ant: You have wrongfully taken my property; I will not receive it back; do 
 with it what you please. I insist on my remedy by action. There i3,^I think, no 
 legal principle upon which the defendant, by any mere act of his own, could get 
 rid of the difficulty. If the horse had not been returned to the plaintiff's stable, 
 the levy of the second attachment could not have altered the case. It was a 
 matter of no moment to the plaintiff what l)ecame of the horse after the original 
 illegal taking. Replacing the animal in the plaintiff's stable, without his assent, 
 was a nugatory act. It could no more operate to prejudice the plaintiff than 
 any other disposition which the defendant might have made of the property." 
 
 ' Wehle agst. Butler, 43 How. Pr. R. 5, and cases cited. 
 
 ^ Brooks v. Olmstead, 17 Penn. St. R. 24.
 
 408 WRONGFUL TAKING OF PERSONAL PROPERTY. § 446. 
 
 A. afterwards met on the road R, " to whom he said he did 
 not know but he had got into trouble, and asked him what 
 he should do. F. said he was going to get leave of the 
 plaintiff to buy the materials of the defendant, and then 
 went and asked the plaintiff if he had any objections to his 
 purchasing, who said he had none, for he had been informed 
 that he should have his remedy against A. F. then told A. 
 he had pui'chased the materials, and A. drove on with his 
 load." Held that the trespass of A. was not released or 
 extinguished by the subsequent transaction between B. 
 and F.^ * 
 
 ' Woodruff V. Halsey, 8 Pick. 333. 
 
 * Under certain circumstances the court will stay the proceedings in an action 
 of trespass for seizing goods, on the defendant's restoring the goods, or paying 
 the full value of them with the costs of the action (Knot v. Barker, 3 Anst. 896; 
 Hanmer v. Wilsey, supra, p. 406, note).
 
 CHAPTER III. 
 
 THE TAKING OF PERSONAL PROPERTY BY OFFICER. 
 
 1. Goods that may or may not be taken. 
 
 2. What essential to constitute an attachment. 
 
 3. When personal property bound by levy. 
 
 4. Protection aflForded to officer by process. 
 
 5. Duty and liability of officer in seizing goods. 
 
 6. Power and duty of person specially authorized to act officially. 
 
 7. Validity of acts of officer de Jado. 
 
 8. Liability of sheriff for illegal acts of deputy. 
 
 9. Liability of assessors of taxes. 
 10. Liability of collector of taxes. 
 
 1. Goods that may or may not he taJcen. 
 
 § 447. Apart from any consideration as to what may be 
 specially exempt, all tbe personal property of a judgment 
 debtor iii prima facie liable to levy and sale upon execution.^ 
 If property is so in process of manufacture and transition as 
 to be rendered useless, or nearly so, by having that process 
 arrested, and requiring art, skill and care to finish it, so that 
 when completed it will be a different thing, it is not subject 
 to attachment. Such is bakers' dough, the materials in cruci- 
 bles in the process of fusion, the burning ware in a potter's 
 oven, a burning brick kiln, or a burning pit of charcoal. The 
 officer cannot be compelled to attach, as he should have the 
 right of removal. Nor is he bound to conduct, by himself 
 or agent, such process, and be responsible to both, parties for 
 its successful result,^ At common law, with a few excep- 
 tions, no property was exempt from distress except such as 
 would necessarily perish or suffer diminution. Hides in a 
 vat could not be distrained, because if exposed to the air and 
 dried during the process of tanning they were afterward in- 
 capable of being reduced into leather, and for that reason, it 
 
 ' Dains v. Prosser, 32 Barb. 290. ' Wilds v. Blanchard, 7 Vt. 138.
 
 410 TAKllifIG PERSONAL PROPERTY BY OFFICER. § 448. 
 
 was held in Bond v. Ward/ tbat liides thus situated could 
 not he attached on inesne process. Grain in the stack was 
 not liable to distress, because the quantity would necessarily 
 be diminished by removal. But if the landlord found grain 
 upon a cart he might distrain and drive it away.^ If grain 
 could be removed without waste, or if hides raised from the 
 vats and becoming dry could be returned again and the tan- 
 ning completed, the ol)jection to distraining then ceased.^ 
 Where a portion of coal in a pit was made so as to need no 
 further attention and labor, and the residue had so far pro- 
 gressed as to have been entirely burned to coal, though some 
 labor and skill were still necessary in order to separate and 
 preserve it properly, and it did not appear but that it might 
 all have been secured, it was held that if the officer saw fit to 
 attach and take possession of the coal and run the risk of 
 being able to keep it safely, he had a right to do so.^ 
 
 § 448. At common law, chattels in the actual possession 
 and use of a debtor cannot be taken. In Coke on Littleton,^ 
 it is said that " although it be of valuable property, as a 
 horse, &c., yet when a man or woman is riding on him, or an 
 axe in a man's hand cutting of wood, and the like, they are 
 for that time privileged, and cannot be distrained any more 
 than a horse on which a man is.'" * In Sunbolf v. Alford/ 
 it is stated to be settled law, that " goods in the actual pos- 
 session and use of the debtor cannot be distrained; a man's 
 clothes cannot be taken off of his back in execution of a 
 fieri facias.'''' In Massachusetts, under the statute ^ which 
 provides that " all goods and chattels that are liable to be 
 taken on execution, may be attached, except such as from 
 their nature or situation have been considered as exempted 
 from attachment according to the principles of the common 
 law," an action was brouo:ht ao;ainst an officer for attachins; 
 
 ' 7 Mass. 123. ' Co. Lit. 47 b. 
 
 ' Leavitt v. Holbrook, 5 Vt. 405. " Hale v. Huntley, 21 Vt. 147. 
 
 " 47 a. 
 
 " Read v. Burley, Cro. Eliz. 539, 596; Simpson v. Hartopp, Willes, 512. 
 ^ 3 M. & W. 248. ' Rev. Sts. of Mass. ch. 90, § 21.
 
 § 449. GOODS THAT MAY OR MAY NOT BE TAKEN. 411 
 
 and forcibly taking from tLe plaintiff his watch, by severing 
 the silken guard to which the watch was fastened, and which 
 passed around the plaintiff's neck. It was held that the de- 
 fendant was liable for the value of the watch, being a tres- 
 passer ah initio j and that it was no answer to the action 
 tliat he tendered to the plaintiff the value of the cord by 
 which the watch was fastened, or that the watch itself, de- 
 tached from the person, was subject to attachment.-^ "' The 
 ground iij^on which these and other similar decisions rest is, 
 that it would tend directly to a collision and breach of the 
 peace if articles thus situated were allowed to be taken from 
 a debtor.^ 
 
 § 449. By the ancient law of distress, tools were exempt 
 from seizure;^ in which designation are included instru- 
 ments of small value, used with the direct application of 
 manual strength.^ Under statutes exempting tools from 
 seizure and sale, a portable machine, called a billy and jenny, 
 used for spinning, and manufacturing cloth, and also a print- 
 ing press and type, and other instruments used in printing, 
 were adjudged not exempt from attachment or execution, ^f 
 
 ' Mack V. Parks, 8 Gray, 517. 
 
 ^ Com. Dig. Distress, C; Gilbert on Distresses, 43; Gorton v. Falkner, 4 T. 
 R. 565; Storey v. Eobinson, G lb. 138; Adames v. Field, 13 Ad. & El. 649. 
 
 = Co. Lit. 47. ' Dailey v. May, 5 Mass. 313. 
 
 ° Kilburn v. Demming, 2 Vt. 404; Buckingham v. Billings, 13 Mass. 82; 
 Spooner v. Fletcher, 3 Vt. 133. 
 
 * In Mack v. Parks, supra, the court said: "The watch at the time it was 
 taken by the defendant was in the plaintiff's actual possession and use, worn as 
 part of his dress or a|)parel, and was severed from his person by force. Such an 
 iict, if permitted, would tend quite as directly to a breach of the peace as to take 
 from a man the horse on which he was riding, or the axe with which he was 
 felling a tree. It is, indeed, a more gross violation of the sanctity of the person, 
 and tends to a greater aggravation of the feelings of the debtor. Nor would it 
 be practicable to place any limit to the exercise of such a right. If allowed at 
 all, it must extend to every article of value usually worn or carried about the 
 person. If an ofKcer can sever a silken cord, he may likewise break a metallic 
 chain. If he can seize and take a watch, he may wrest a breast pin or ear ring 
 from the person, or thrust his hand into the pocket and carry off money. He 
 may, in short, I'esort to any act of force necessary to enable him to attach prop- 
 erty in the personal custody of the debtor. It is obvious that such a doctrine 
 would lead to consequences most dangerous to the good order and peace of 
 society." 
 
 t '' Unless tiie word tools is taken in its appropriate sense, as applied to 
 simple instruments ordinarily used in manual labor, the exemption will embrace
 
 412 TAKING PERSON.AX PROPERTY BY OFFICER. § 449. 
 
 And cocks in a cockpit were held not to be " implements," 
 within tlie contemplation of a statute which authorized the 
 
 property of a kind and value which, it is obvious, never could have been within 
 the intent and meaning of the statute. It will extend, for aught we see, not 
 only to the implements and apparatus of a printing office, but to the machines, 
 looms, and sjiiudles of a manufactory, and indeed to a great variety of compli- 
 cated machinery and utensils of great value, all of which will be locked up from 
 creditors. On principles of justice, the proj^erty of a debtor should be sub- 
 ject to the satisfaction of his debts: and the exemption in the statute ought not 
 to be extended beyond what the policy and humanity of the law clearly require. 
 If printing presses and types were exempt, it would follow that many other 
 kinds of property would also be exempt ; such as lithographic and stereotype 
 plates, engravings for stamping calicoes, pidtures, or paper hangings. If it were 
 once established that articles from which an impression is taken, either upon 
 paper or cloth, were exempt, it would be claimed, with propriety, that the 
 machinery with which the paper and cloth were manufactured was also exempt; 
 under which would be classed all the complicated machinery of large manufac- 
 turing establishments " (Paddock, J., in Spooner v. Fletcher, supra). 
 
 A wooden boot, hung up at the door of a boot and shoe maker's shop as a sign 
 of his trade, is' not a tool. lu Wallace v. Barker, 8 Vt. 440, which was an action 
 of trespass against a deputy sherift" to recover the value of a wooden boot, which 
 the plaintiff claimed was exempt from seizure and sale at the suit of creditors, 
 the court said : "It is quite obvious that the article in question is not to be 
 ranked among any of the statutory exceptions. It was in no sense a tool or im- 
 plement of the debtor's trade, but a mere sign or symbol of it. But exceptions 
 must exist independently of the statutes; and the question is. whether any such 
 ap])ly to the present case. In deciding this question, we must keep in view the 
 nature and object of an attachment, as authorized by our law. It is a sort of 
 sequestration of property for the eveutunl security of the attaching creditor. The 
 property thus taken is to remain in the custody of the law, to await the deter- 
 mination of the suit in which it is attached. And in most instances this is ex- 
 pected to require a considerable period of time. Hence, an exception arises in 
 favor of property which is peculiarly perishable in its nature, as fresh meat 
 during a portion of the yepr — fresh iish, green fruits, and the like, whenever it 
 is manifest that the purpose of the attachment cannot be effected before they 
 will decay and become worthless. As the policy of the law is not to authorize 
 the destruction of property, but to enable the l)nrty attaching to obtain security 
 for his claim, it impliedly forbids an attachment in these cases. The same prin- 
 ciple applies when the thing sought to be attached is in such a stage of manufac- 
 turing process that its removal by an officer, or the suspension of care and labor 
 upon it by the owner would occasion a loss of the property, or a great damage 
 to it. It is insisted that the principle of exemption extends to all cases where 
 the thing attached could be of no substantial benefit to the creditor as a security, 
 or where it could not be expected to sell for a price bearing any reasonable pro- 
 portion to its cost, and its real or imaginary value to the owner. Admitting 
 this proposition to be just to some extent, yet any general rule of exemption 
 founded U})on it must be difficult of application and of a doubtful policy. In- 
 deed, the power of the court thus to limit and qualify the creditor's right under 
 the statute, may well be questioned when the right can be exercised without in- 
 jury to the property attached. The present case, however, does not require us 
 to lay down any precise rule upon the subject, since the article in question 
 appears to have possessed a well known value. It was equally appropriate for 
 any one of the trade, and required no alterations on being removed from one 
 shop to another. The papers show that it was sold for about twenty dollars on 
 the creditor's execution. This is evidence of its value as an article of sale, at 
 least among particular tradesmen. In these respects it differed entirely from the
 
 § 449. GOODS THAT MAY OR MAY NOT BE TAKEN. 413 
 
 seizure of " any gaming apparatus or implements used or 
 kept and provided to be used in unlawful gaming, in any- 
 gaming house." ^ * The rolling stock of a railroad company 
 
 ordinary signs of trade and professions. These are known to be of little or do 
 intrinsic value, and useful only to those for whom they are made. AVe are all 
 agreed that this j)iece of property was liable to attachment.'' 
 Coolidge V. Choate, 11 Mete. 79. 
 * The case referred to in the text was an action of trespass against a sherifiF 
 and his posse for taking, carrying away and destroying game cocks from a cock- 
 pit. The defendants sought to justify their acts by virtue of a sworn complaint 
 made to a justice of the peace and a warrant issued by him to break up unlawful 
 gaming. The judge before whom the cause was tried charged the jury that game 
 cocks were not appai'atus or implements of gaming, within the meaning of the 
 statute, in such a sense that they could be seized by an officer on a warrant, oi 
 destroyed by order of a magistrate. The defendants' counsel, in support of their 
 exception to the ruling, relied on the Revised Statutes of Massachusetts, ch. 50, 
 § 19, which authorize and require any justice of the peace, or any police court, 
 on complaint made on oath by any person "that he suspects, or has probable 
 cause to suspect, that any house or other building is unhiwfully used as and for 
 a common gaming house, for the purpose of gaming for money or other prop- 
 erty," to issue a warrant "commanding the sheriff or his deputy, or any consta- 
 ble, to enter into such house or building, and there to arrest all persons who 
 shall be there found playing for money or otherwise, and to take into their 
 custody all the implements of gaming as aforesaid, and to keep the said persons 
 and implements, so that they may be forthcoming before such justice or police 
 court, to be dealt with according to law." Chapter 142, sections 1 and 3, also 
 authorizes magistrates to issue warrants to search for and seize (among other 
 things) " any gaming apparatus or implements used, or kept and provided to be 
 used in unlawful gaming in any gaming house." The Supreme Court, in refusing 
 to disturb the verdict, said : "It has been argued for the defendants that fighting 
 or game cocks may be considered as implements of gaming under tlie true con- 
 struction of the statute ; that all things by which an illegal game is played must 
 have been intended to be taken by the otficer, and that in order to caiTv out this 
 intent of the law the meaning of the word 'implements' should not be restricted 
 to its strictest sense, but should be enlarged from a literal to a reasonable mean- 
 ing. But we cannot adopt any such construction of a penal statute. The rule 
 of construction of all penal statutes is well established and is unquestionable. 
 Where a statute inflicts a penalty or fine on the offender, or a forfeiture of his 
 property, it is to be taken strictly. For it is said, ' whenever any ambiguity 
 arises in a statute introducing a new penalty or punishment, the decision shall 
 be on the side of lenity and mercy, or in favor of natural right and liberty, or in 
 other words, the decision shall be according to the strict letter in favor of the 
 subject' (1 Bl. Com. 88; Christian's note, 19). But all statutes are to be con- 
 strued according to the popular meaning of their language, if that meaning can 
 be clearly ascartained, except as to technical terms, which are to be taken in 
 their legal sense. We are of opinion that the words 'implements of gaming' 
 v/ere not intended to include fighting cocks, or anj' animal or being having life, 
 and that the ruling of the presiding judge at the trial on this point is well 
 founded. It is therefore unnecessary to decide whether the cocks taken were 
 lawfully killed or destroyed. For if they were unlawfully taken by the de- 
 fendants they are responsible, wdiether the cocks were afterwards destroyed or 
 not. We do not mean, however, to suggest any doubt on this point as to the 
 construction of the Kev. Sts., ch. 142, sects. 2 and 5, under which the defendants 
 maintain that the cocks were lawfully destroyed under the direction of the court 
 or magistrate. By these sections, any ' gaming a])|)aratus or implements used, or 
 kept and provided to be used in unlawful gaming in any gaming house,' arc re-
 
 414 TAKING PERSONAL PROPEKTY BY OFFICER. § 449. 
 
 may l)e attached when uot in use, the same as other personal 
 property.^ * 
 
 quired to be burnt or otherwise destroyed under the direction of the court or 
 tnagistrtite. Tlie words ' implements ' and ' apparatus ' have tlie same meaning 
 and are so defined. No one, we apprehend, ever did or ever would call a living 
 animal an apparatus. Nor is there any reason to tuppose that the legislature in- 
 tended l)y this statute to authorize a magistrate to l)urn or destroy any living 
 animal. If cock fighting l)e a cruel game or sport, as it doubtless is, let the 
 oS'enders be punished who stimulate tlie fighting propensities of these animals, 
 and who furnish them with instruments of destruction, or for the purpose of in- 
 flicting pain or causing bloodshed, which are not furnished l)y nature. But why 
 should these animals be burnt or otherwise destroyed ? This would be authoriz- 
 ing the cruelty which the hiw is intended to prevent. Life is the gift of God, 
 not to man only, but to all animals, and it ought uot to be taken away except 
 from necessity, or for some useful and proper purpose." 
 
 ' Boston, Concord & Montreal R. R. v. Gil more, 37 N. Hamp. 410. 
 
 * This was an action of trespass against a sherift' for attaching passenger and 
 freight cars and locomotives belonging to the plaintifis, which the plaintifi's 
 claimed were exempt from seizure and sale. It was argued that the ordinary 
 rule relative to corporations did not apply, for ,the reason that railroads are 
 public corporations whose p^roperty is consecrated to public uses, and there- 
 fore, on grounds of public policy, cannot be taken in execution. The court said: 
 "We are unable to see any principle of public policy or convenience which 
 should allow such corjiorations to mortgage their cars and engines, that would 
 not be equally strong to allow a creditor of the corporation to secure a lien 
 substantially of the same kind by an attachment. In either case the debt must 
 be paid, or the creditor, by suitable proceedings, may cause the property to be 
 applied, by sale or otherwise, to the payment of the debt; and the inconvenience 
 of the public, or to the corporation, is not materially greater in the one case than 
 in tb.e other. It would seem then that so long as the law allows to the corpora- 
 tion the right to deprive themselves by a mortgage, in a greater or less degree, of 
 the power of readily performing their public obligations, and allows them to con- 
 tract debts which, in the case of others, may be secured by attachment, there 
 can be little reason in denying to the creditor of a railroad the ordinary right to 
 secure his debt by attachment, especially when the debtors can readily relieve 
 themselves from the inconvenience by payment of security." In Farmers' Loan 
 & Trust Co. v. Hendriekson, 25 Barb. 484, the plaintifi's were holders of a mort- 
 gage made by the Flushing Railroad Company to them, of their track, i)uildings. 
 rails purchased or to be purchased, engines, cars, &c. The defendant, as sheriff, 
 levied an execution against the railroad on some of the engines and cars. The 
 question was, whether the property was to be considered as between the mort- 
 gagees and execution creditors as fixtures of the road. Strong, P. J., after a full 
 discussion, came to the conclusion that the cars, engines, &c., were properly to 
 be regarded as fixtures, and so not liable to seizure on execution as against the 
 mortgagees, ami for tljc same reason that the mortgages need not be recorded 
 by the town clerk, which was made necessary by the statute to the validity of 
 mortgages of personal property. He reasoned that ''railway cars are a necessary 
 part of the whole establishment, without which it would be inoperative and 
 valueless. Their wheels are fitted to the rails, they are constantly upon the rails, 
 and except in cases of accidents, or when taken off for repairs, nowhere else; 
 thev are not moved off the land belonging to the company; they are peculiarly 
 adapted to the use of the railway, and in fact cannot be applied to any other 
 purpose; they are not like farming utensils, and possibly the machinery in fac- 
 tories, and many of the movable appliances in stores and dwellings, the objects 
 of general trade; they are permanently used on the particular road where they 
 are employed, and are seldom, if ever, changed to any other. In New Hamp- 
 shire, Boston, Concord & Montreal R. R. v. Gilmore, 37 N. Hamp, 410, c()ntro-
 
 § 450. GOODS THAT MAT OR MAY NOT BE TAKEN. 415 
 
 § 450. The word necessary, or necessaries, lias been con- 
 sidered, in legal phraseology, to extend to things of conven- 
 ience and comfort, and to such as are suitable to the situation 
 of the person in society, and not to be confined to things 
 absolutely necessary for mere subsistence. A statute ex- 
 empting from seizure " necessary wearing apparel for imme- 
 diate use," has been held to include an outside or great coat 
 at all times and seasons of the year, and, in addition to decent 
 and comfortable every day clothing, a full suit to wear 
 abroad or to church.^ In an action of trespass for taking, by 
 virtue of an attachment, certain liousehold furniture l)elong- 
 ing to the plaintiff, the principal question in the case in- 
 volved the construction given by the court below to the 
 statute, which, among other property, exempted from seizure 
 " bedding and household furniture necessary for supporting 
 
 verted the doctrine laid down in Farmers' Loan & Trust Co. v. Hendrickson, 
 supra. Bell, J., who delivered the opinion of the court, said: "All these things 
 are at least as true of the carts, plows, &c.. used ou a farm with reference to the 
 farm, yet no one ever imagined them to be fixtures. Aud to those who habitu- 
 ally see the same cars, and often the same engines, running from the line of 
 Canada to Boston over roads owned by several corporations, the facts assumed 
 appear entirely groundless. No particular cars, nor cars owned by the road, are 
 necessary to operate it, since many ro.ids are operated with the cars of other cor- 
 porations. The wheels are not fitted to any road in particular, but may be 
 equally useful on any road of similar gauge. The engines and cars are not kept 
 (m the road or lands of the same comf)any, but are often used on other roarls. 
 and they are subjects of trade as much as' coaches or steamboats. The idea that 
 property, either real or personal, may become a tnere incident to a franchise, so 
 that tiie franchise and property shall constitute an entire thing, is uot found in 
 any of the books of the common law so far as w^e are aAvare. The right to a ferry 
 is such a franchise, and the boats required for the transportation of passengers 
 and their property are entirely indispensable for the discharge of the public 
 duties of the owner, yet we have found no instance where it lias been claimed 
 that such l)oats were exempt from seizure in discharge of the owner's debts. 
 The property of individuals who owe duties to the public is not exempted from 
 liibiiity to the ordinary process of law, except so long as it is in actual use in the 
 discharge of that duty. Such is the case of the contractor to carry the mail. It 
 has never been held that the steamboat or coacli and horses used in the convey- 
 ance of the mail were exempt when not in use. Considering, then, that it is not 
 necessary for the discharge of the public duties of these corporations that they 
 should l)e the owners of cars or engines— many such roads being operated with 
 the cars of other corporations; that it is a matter of great uncertainty what arti- 
 cles of the personal property of such corporations are necessary for the discharge 
 of their public duties; that no means exist by which it can be determined what 
 is necessary or otherwise; that it must be very diflicult for courts to lay down 
 any definite rule by whicii officers can be guided, who, in such cases, must decide 
 at their peril; it seems to be neither judicious nor expedient to establish an ex- 
 emption of the kind, unless it is done by the direct action of the legislature." 
 ' Peverly v. Sayles, 10 N. Ilarap. 35a.
 
 410 TAKING PERSONAL PROPERTY BY OFFICER. § 451. 
 
 life." ^ The judge cliarged the jury that this provision ex- 
 empted only such articles of furniture as were indispensably 
 necessary for supporting the lives of the debtor's family. 
 But the court of review held that this was too risrid a con- 
 struction.^ * It was decided that a time-piece was included 
 in a statute exempting from sale on execution necessary 
 articles of household furnitui'e ; ^ and the exemption of a cow 
 Avas held to include the butter made from her milk.^ But a 
 statute exempting " one hog and the pork of the same w^heu 
 slaughtered," does not protect from seizure a second hog 
 while the first remains, either alive or butchered, in the 
 hands of the debtor, the design of the statute being to ex- 
 empt from process an amount of property sufficient merely 
 for the debtor's immediate wants.^ 
 
 § 451. Where one or more articles of a particular kind, 
 or a particular quantity in value, out of several kinds are ex- 
 empt by law from sale on execution, and the debtor has a 
 larger number or quantity in value, he may determine which 
 he will claim as exempt. The statute gi\dng such exemption 
 is for the benefit of families, from motives of public policy. 
 It confers a personal priA'ilege upon the debtor, which he 
 may waive altogether or insist upon as he may elect ; and he 
 may waive his privilege as to every article but one, and insist 
 upon it as to that article, if it belongs to the kicd or class of 
 
 ' Rev. Sts. of CoDD. ch. 1, p. 112, § 179. 
 " Montague v. Richardson, 24 Conn. 338. 
 ' Leavitt v. Metcalf, 2 Vt. 342. 
 
 * Ibid. ' Parker v. Tirrell, 19 N. Hamp. 301. 
 
 * In an action of trespass for attaching household furniture exempt by statute 
 from seizure, the question whether an apparatus called a range is a stove, is one 
 of fact for the jury (Montague v. Richardson, 24 Conn. 338). 
 
 Under a statute, that "Every citizen enrolled and providing himself with a 
 uniform, arras, ammunition and accoutrements, shall hold the same exempted 
 from all suits, distresses, executions, or sales for debt, or payment of taxes, " it 
 was held, that a horse and saddle owned by a member of a company of cavalry 
 were not exempt (Fry v. Canfield, 4 Vt. 9). Williams, J. : "As to most of the 
 articles which a soldier is obliged to provide, they are useful only as military 
 equipments, and there may be some propriety in exempting those articles from 
 seizure which a man is obliged to provide and keep almost constantly for the use 
 of the public. But a horse, saddle and bridle are kept for common and ordinary 
 use, and a benefit and profit is derived to the owner from their use."
 
 § 452. WHAT CONSTITUTES AN ATTACHMENT. 417 
 
 exempt property.^ There are many articles of personal 
 property subject to attachment under our laws and usages 
 which could not have been distrained or taken at common 
 law under the rule as stated in the earliest authorities. But 
 in the absence of any proof of usage or custom, from which 
 it may be inferred that a different rule of law has been 
 adopted, the case will fall within the principles on which the 
 English authorities rest, and must be governed by them.^ 
 
 2. What essential to constitute an attachment. 
 
 § 452. The word attach derived remotely from the 
 Latin attmgo, and more immediately from the French attacher, 
 signifies to take or touch. The object of attachment is to take 
 out of the defendant's possession, and to transfer to the 
 custody of the law, acting through its officer, the goods 
 attached, that they may if necessary be seized on execution, 
 and be disposed of and delivered to the purchaser. From 
 both of these considerations it is apparent that to attach 
 is' to take the actual possession of property. It is not 
 perhaps necessary in any case that the officer should touch 
 the goods.* But to constitute a legal attachment, he must 
 
 ' Lockwood V. Younglove, 27 Barb. 505. 
 
 = Mack V. Parks, 8 Gray, 517 ; Potter v. Hall, 3 Pick. 368. 
 
 * The return "attached" where goods belong to a stranger, renders the 
 officer liable ; touching or removal not being essential (Paxton v. Steckel, 2 
 Barr. 93). Hart v. Hyde, 5 Vt. 338, was an action of trespass brought to re- 
 cover the value of a cooking stove and pipe which had been attached and sold 
 under an execution in favor of Hyde against Hart. Hart was the purchaser of 
 the stove at the sheriff's sale. The stove had been used by Hart as a cooking- 
 stove, and being his only stove was exempt from seizure and sale by the statute. 
 About three months previous to the attachment. Hart had temporarily suspended 
 house keeping, and placed the stove in the possession of one Lewis, v/ho was to 
 keep it and pay for the use of it, until it should be called for by Hart. When 
 the stove was attached, Lewis receipted it to the officer, and retained the posses- 
 sion and use of it, until it was sold on the execution, when he also receipted it 
 to Hyde, and still continued to use it. The stove was not removed or in any 
 manner disturbed. After the sale, but before the commencement of the action, 
 Hart called on Lewis for tlie stove who declined to surrender it. Phelps, J. : 
 "It is insisted that no act of the defendant appears in the case, which amounts 
 in law to a trespass. But we are all agreed, that the act of the sherilf, in 
 assuming the custody and control of the property, was clearly a trespass; and if 
 done by the direction of the defendant, was a trespass in him. There was a 
 literal taking of the property — a seizure on the attachment, as also on the 
 execution, and the placing it under the control of a third person to the ex- 
 clusion of the plaintiff. 
 
 Vol.. L— 37
 
 418 TAKING PERSONAL PROPERTY BY OFFICER. § 452, 
 
 liave the custody or control of them, either by himself 
 or his servants, in such a way as to exclude all 
 others, or at least to give timely and unequivocal notice that 
 he has taken possession.^ An officer for the purpose of 
 attaching a wagon, went with a writ of attachment within 
 five or ten rods of the wagon, which was then in the road 
 in full view. He did not go to the wagon, or remove it, 
 or send any one to do so, or to keep control of it, nor give 
 notice to any one, but went' away to attach other property, 
 and did not return until an hour or more. In the mean 
 time, a person in good faith, and without notice, had bought 
 the wagon of ,the owner, and taken possession of it. It was 
 held in an action of trespass, by the oflScer against the 
 purchaser, for the wagon that the defendant was entitled to 
 hold it.^ In an action of trespass for attaching and carrying 
 away a barouche and harness, it appeared that the plaintifi:" 
 who was ati ofiicer, went to a carriage house, unlocked the 
 door, and at the same time announced that he attached the 
 property within ; but that the defendant, who was also an 
 officer with an attachment, arriving at the door, as soon as it 
 was opened sprang in and seized the barouche before the 
 other had actually touched it. A verdict having been found 
 for the plaiutifl:' in the court below, the Supreme Court 
 granted a new trial, holding that as the defendant obtained 
 actual possession of the property, he had a right to take it 
 away under his attachment, which thereby had priority.^ * 
 
 ' Lane v. Jackson, 5 Mass. 157; Train v. Wellington, 12 lb. 495; Lyon v. 
 Rood, 12 Vt. 233. 
 
 ' Fitch V. Rogers, 7 Vt. 403 ; and see Blake v. Hatch, 25 lb. 555. 
 
 = HoUister v. Goodale, 8 Conn. 332. 
 
 * In an action of trespass de bonis aspartate, it appeared that the plaintiff, 
 who was a tax collector, having a tax against the defendant, went to a farm 
 which had then recently been owned by the defendant, but which he had sold 
 to one Smith, who then lived on the farm, and informed Smith that he had 
 distrained the grain and other property belonging to the defendant, for the 
 defendant's taxes. The grain, which had just been thrashed, lay in piles about 
 the barn and granary; and the plaintiff after examining the property, left it 
 without removing it, or in any way interfering with it. He, however, requested 
 Smith to keep it for him, which Smith declined to do ; but he agreed to notify 
 the defebdant of the distress, when the latter returned, and did so. The 
 defendant having used and disposed of the property, it was held that the
 
 § 452. WHAT CONSTITUTES AN ATTACHMENT. 410 
 
 In Turner v. Austin/ it was lield that no overt act of the 
 sheriff was necessary to constitute an attachment of prop- 
 erty previously in his custody on another attachment. But 
 there, the sheriff already had the actual custody; and 
 mere form or ceremony for form's sake, and not for the 
 preservation of substance, is never required. In Denny v. 
 Warren,^ an officer who entered a store to attach goods 
 where there was no competition, received the key from the 
 clerk and locked the store, declaring his intention to attach, 
 was held to have made a sufficient attachment. In Naylor 
 V. Dennie,^ inaccessible goods in the hold of a ship were 
 attached by the officer's going on board and leaving a keeper 
 to take care of them. And in Merrill v. Sawyer,* it was 
 held that hay in a barn was duly attached by putting a 
 notice of the attachment on the barn door. All of these 
 cases were determined upon the principle, that actual posses- 
 sion and custody are necessary to constitute an attachment ; 
 although there being no race for priority of attachment, 
 they held that to be the actual custody and possession 
 which perhaps was only constructive possession.''^ 
 
 plaintifE had not acquired a sufficient possession of it to maintain tlie action. 
 (Dodge V. Way, 18 Vt. 457.) 
 
 ' 16 Mass. 181. ^ 16 Mass. 420; S. P. Gordon v. Jenney, lb. 465. 
 
 ^ 8 Pick. 198. " 8 Pick. 397. 
 
 * In Vermont, after the attachment, the officer is required to give notice to- 
 the debtor, by delivering a copy before the time of service is out, or he will be- 
 considered as abandoning the attachment, and may perhaps be treated as a 
 trespasser ab initio. Between the time of attaching and delivering the copy, 
 the officer is considered as having a title to the property, and his possession as 
 legal against all others. When, however, hay or grain is attached, the officer 
 may leave a copy with the town clerk ; and this is equivalent to, and declared to 
 be as effectual as if such property had been actually removed and taken into the 
 possession of such officer. He is considered as having the constructive posses- 
 sion, and as having a sufficient title and possession to maintain an action there- 
 for against any one who removes or converts the same. It is not necessary for 
 the officer to go to the place where the property is situated to make the attach- 
 ment. Leaving a copy with the town clerk is the act of attaching and taking 
 possession, and giving notice to all concerned. A constable having at- 
 tached hay and grain, by leaving a copy with the town clerk, and having 
 perfected his attachment by giving the debtor a copy, and a judgment having 
 been rendered thereon, and the execution having been issued and delivered to 
 an officer in season to charge the property; it was held that he had such a title 
 and possession as were sufficient to enable him to maintain an action of trespass 
 against another officer, who after the leaving of the copy in the town clerk's 
 office, and before the copy was delivered to the debtor, attached and removed
 
 420 TAKING PERSONAL PROPERTY BY OFFICER. § 454. 
 
 § 453. An officer in attaching j^roperty is not bound, in 
 order to avoid the implication of fraud, to secure the goods 
 against depredators. The fact that an action of trespass 
 may be supported by him, by virtue of his lien, presupposes 
 the right to leave the property in a situation to be eloigned 
 by a mere act of trespass.^ Although the attaching of 
 goods in a building, by taking exclusive possession of the 
 building, and excluding the owner, might be regarded as a 
 trespass ah initio as respects the owner, yet the attachment 
 would be valid.^ 
 
 3. When personal property hound hy levy. 
 
 § 454. To constitute a valid levy, the officer must enter 
 on the premises where the goods are, and take possession of 
 them, if that be practicable ; if not, then he must openly 
 and unequivocally assert his title to them by virtue of his 
 execution.^ But it is not essential to the validity of the levy 
 that the sheriff take actual possession of the goods, or that 
 he remove them from the custody of the debtor. The test 
 of a valid levy is whether enough has been done to subject 
 the officer to an action of trespass except for the protection 
 of the execution. In Roth v. Wells * it appeared that the 
 sheriff went to the plaintiff's store, saw the goods, asserted 
 
 the same property (Putnam v. Clark, 17 Vt. 82). Stanton v. Hodges, 6 Vt. 64, 
 was an action of trespass for taking and using up hay and grain which the 
 plaintiff as deputy sheriff had attached on a writ against the defendant, 
 and which the plaintiff did not remove, but left copies agreeably to the statute. 
 It was insisted that the action could not be maintained, for the reason that the 
 plaintiff did not take actual possession of the property. The court said: " The 
 object of the statute is quite apparent, viz: to prevent waste in the removal; 
 and it is idle to say, that the defendant, though he cannot sell the property, and 
 though it cannot be attached, may consume or waste it with impunity. Nor is 
 this inconsistent with general principles. The officer is responsible for the safe 
 keeping of the property. The statute provides that nothing in the act shall be 
 construed to prevent the officer from removing the property where he shall 
 think proper. The officer has thus a lien, or special property, with the right of 
 immediate possession, and may therefore maintain the action " (Referring to 
 Lowry v. Walker, 4 Vt. 76). 
 
 ' Newton v. Adams, 4 Vt. 437. ' Ibid. 
 
 ' Haggerty v. Wilber, 16 Johns. 287; Beekman v. Lansing, 3 Wend. 446; 
 Westervelt v. Pinckney, 14 lb. 123; Green v. Burke, 23 lb. 490; Camp v. 
 Chamberlain, 5 Denio, 198; Barker v. Binninger, 14 N. Y. R. 270. 
 
 ' 29 N. Y. R. 471.
 
 § 455. wo EN PERSONAL PROPERTY BOUND BY LEVY. 421 
 
 his right to them by virtue of his levy, in the hearing of one 
 of the plaintiffs, and subsequently, the fact that a levy had 
 been made was indorsed on the executions, and it was held 
 that the sheriff had done all that was required to perfect a 
 lien on the debtor's goods.^ In Copley v. Rose ^ it was held 
 that the defendant's saying that he had levied on the prop- 
 erty of the plaintiff, showing the execution by virtue of 
 which he acted, and insisting on the levy, was sufficient evi- 
 dence that the defendant had exercised such dominion over 
 the property as would make him a trespasser.* 
 
 § 455. Where a sheriff has seized goods under one exe- 
 cution, and another execution against the same defendant after- 
 ward comes to his hands, the seizure under the first inures by 
 way of constructive levy for the benefit of the second.'^ In Rus- 
 sell V. Gibbs "* this doctrine was applied, though after the first 
 levy and before the receipt of the second execution, the goods 
 were removed out of the State, and remained there until 
 the return day of the second execution had passed. The 
 principle is this: — The object, as well as the effect of an 
 actual levy, is to bring the goods into the possession and 
 under the control of the sheriff for the double puq^ose of safe 
 keeping and to enable him, by a sale, to apply the proceeds 
 in payment of the debt. After seizure, they are in the 
 custody of the law, or of one of its ministers, until a sale 
 and delivery to the purchaser. An actual levy under the 
 second execution would therefore be but an idle formality. 
 
 ' See Eay v. Harcourt, 19 Wend. 495; Van Wyck v. Pine, 2 Hill, 666. 
 
 " 2 Comst. 115. 
 
 = Birdseye v. Ray, 4 Hill, 158; aff'd 5 Denio, 619. 
 
 * 5 Cowen, 390. 
 
 * In general, in case of levy or seizure, the officer merely gives notice to the 
 party, who procures a receiptor. The latter seldom interferes, and often never 
 sees the goods, and tiie officer may or may not make an inventory. But all par- 
 ties understand that the goods are seized and in custody of the lav?; though 
 perhaps the execution is [)aid without the least actual interruption of the owner's 
 use; and it is entirely clear that, in the absence of right or authority on the side 
 of the officer, he would Ijc liul>le in trespass. So, if the goods are left, either 
 because they cannot be removed, or because the officer deems them safe where 
 they are, or imagines that they are replevied, the owner who sues him is 
 not to be embarrassed by the objection that a trespass has not been committed.
 
 422 TAKING PERSONAL PROPERTY BY OFFICER. § 457. 
 
 § 456. Ou an execution against one of two partners, 
 joint tenants, or tenants in common, tlie officer, in levying 
 upon their joint effects, seizes not the mere moiety or share 
 of the defendant in the execution, ])ut the whole of the 
 common interest — the coi'pus of the joint estate — thus 
 bringing it under his exclusive control.^ The officer acquires 
 such a special property in the goods that he can maintain 
 trespass or trover for them against all persons save perhaps 
 the copartner or cotenant.- In Bachurst v. Clinkard ^ it was 
 held, that if the goods of two partners be taken upon 
 execution against one, and an execution against the other 
 partner be subsequently received by the sheriff, he is bound 
 to hold them seized, one moiety for the execution against 
 one partner, and the other moiety for the execution against 
 the other partner ; and if he return the second writ nulla 
 bona, he w^ill render himself liable for a false return. 
 Where an officer having an execution against A. & B. 
 indorsed with directions to levy on their joint property, 
 seizes the separate property of one of them, such property 
 will not be deemed to be in the custody of the law, so as 
 to prevent its being taken under process issued by another 
 creditor.* 
 
 § 457. A levy upon goods which the debtor possessed 
 at the time of the levy, cannot operate constructively as a 
 levy upon goods subsequently acquired by the debtor which 
 were never seen by, nor within the power of the levying 
 officer during the life of the execution.^ Where, however, 
 it appeared that the plaintiff had sold part of the 
 goods which had been levied upon ; that other goods of the 
 same general description had been j^urchased by him and 
 put in the places from which the other goods had been 
 taken, and that he had neglected, after request, to designate 
 
 ' Phillips V. Cook, 34 Wend. 389. 
 
 ''Coll. on Part. 474; Watson on Sheriffs, 18, 191; Heydon v. Heydon, 1 
 Salk. 392. 
 
 = 1 Show. 173. " Sherry v. Schuyler, 2 Hill, 204. 
 
 ' Roth V. Wells, 29 N. Y. 471.
 
 §457. WHEN PERSONAL PROPERTY BOUND BY LEVY. 423 
 
 the goods on whicli the levy was made, it was held that 
 such substituted goods were liable on the execution. The 
 substituted goods became liable, because the plaintiff hav- 
 ing voluntarily mingled goods not liable to be sold, with 
 those that were liable, he could not maintain an action against 
 the officer for selling such substituted goods.^ To permit an 
 action to be maintained under such circumstances would 
 be a fraud upon both the officer and the party whose pro- 
 cess he held.^ * 
 
 • ' Ante, § 405. ' Roth v. Wells, supra. 
 
 * At common law, the writ of fieri facias bound the goods of the debtor from 
 the time the writ was tested, which often preceded by a whole vacation the 
 time of its delivery to the sherifl'. This effect given to the writ by relation often 
 operated very unjustly, especially as against hona fide 2)ur chasers; and to prevent 
 that evil, it was declared by the statute of frauds, 29 Car. 2, ch. 3, § 16, that 
 goods should be bound only from the time when the writ should be delivered to 
 the sheriff to be executed. That statute was early re-enacted iu New York (1 
 Rev. L. 501, § 6) ; and by the New York Revised Statutes of 1830, the protec- 
 tion of lonafide purchasers was further extended to the time of actual levy (N. 
 Y. Rev. Sts. 5th ed. vol. 3, p. 645, § 17). These provisions are continued in 
 force, and are applicable to executions against property under the New York 
 Code (N. Y. Code, §§ 286, 289). In New York, therefore, the goods of the de- 
 fendant in an execution, as against him, are "bound from the time of the de- 
 livery of the execution to the sheriff, to be executed" (3 N. Y. Rev. Sts. 5th ed. 
 p. 644, § 13) ; and the reason upon which this rule is founded extends the lien 
 to all goods acquired by the defendant within the jurisdiction of the sheriff 
 during the life of the execution. This lien is created by law for the benefit and 
 security of the plaintiff; it cannot be defeated by any act of the defendant short 
 of a sale to a lonafide purchaser; and it is not lost by the neglect of the sheriff 
 to levy upon or to take the goods into his custody during the life of the execu- 
 tion, but mav afterward be enforced by the sheriff, without such prior levy 
 (Roth V. Wells, 29 N. Y. R. 471, per Selden, J., citing 1 Saund. 219 e, note t ; 
 Ray V. Birdseye, 5 Den. 619; Hotchkiss v. McVickar, 12 Johns. 403). 
 
 In Lambert v. Paulding, 18 Johns. 311, a sloop had been removed by the de- 
 fendant in an execution, from the city and county of New York to the county 
 of Westchester, after the delivery of the execution to the sheriff of New York, 
 and before any levy. The next day after the removal, the sheriff of Westchester 
 levied upon the sloop by virtue of an execution in favor of another plaintiff 
 against the same defendant; and having afterward sold her, he was ordered, on 
 motion made in behalf of the plaintiffs in the first execution to pay the proceeds 
 of the sale to them — such proceeds being less than the amount of their execu- 
 tion. The court said : "The delivery of the fieri facias to the sheriff of the 
 city and county of New York, bound the goods of the defendant then in his 
 bailiwick, and the plaintiffs in that execution cannot be deprived of tl)e lien on 
 the sloop, which was then lying in New York, by the act of the defendant in 
 removing the vessel into another county. He would be liable to an action at the 
 suit of the sheriff for so removing the property." In Roth v. Wells, supra, 
 Selden, J., referring to the foregoing case, said: "As the lien could be en- 
 forced only through the action of tlie sheriff, he had, I think, a right, by virtue 
 of it as against the defendant, to seize and sell, after the expiration of the exe- 
 cution, any property upcm whicii such lien may have attached, although no 
 previous actual levy liad been made. The deatli of the defendant after the is- 
 suing of an execution and before a levy, does not prevent the sheriff from seiz-
 
 424 TAKING PERSONAL PROPERTY BY OFFICER. § 458. 
 
 § 458. Although the leaving of goods by an officer, after 
 levying upon them, in the possession of the debtor, may ren- 
 der the officer answerable to the creditor, or involve him in 
 difficulty with third persons, yet it will not constitute an 
 abandonment of the levy, so far as the debtor himself is con- 
 cerned. As to him the property is still in the custody of 
 the law, and the officer may come again at pleasure to com- 
 plete the execution of the process.-^ The removal of prop- 
 erty out of one State into another by an attaching creditor, 
 to whom the same has been delivered for safe keeping by 
 the attaching officer, does not dissolve the attachment.^ * 
 
 ing and selling the goods of the defendant after his death, ' for, by the execution 
 awarded, the goods are bound.' If the goods are bound after the death of the 
 defendant, and after removal from the county without levy, they must be equally 
 bound after the return day of the writ. The spirit of the rule which declares 
 execution to be the life of the law, and which creates the lien without a levy, 
 requires the continuance of such lien after the return day. so long as the rights 
 of purchasers or of other creditors do not intervene. It is the duty of the 
 defendant to satisfy the execution as well after the return day as before, and no 
 wrong can be done to him by continuing the lien which has once attached upon 
 his goods, until he makes such satisfaction.'' 
 
 ■ Glover v. Whittenhall, 6 Hill, 597. ' Utley v. Smith, 7 Vt. 154. 
 
 * This was an action of trespass for taking certain articles of personal property. 
 On the trial, in the court below, it was proved that the property had been at- 
 tached, at the suit of the plaintiff, in the State of Nevv York, as belonging to 
 one Hartwell, and by the attaching officer there delivered to the jilaintiff, he 
 agreeing to redeliver the same on demand, or account for it to the officer, and 
 that the officer should not be liable to the plaintiff if the property should not be 
 returned. The plaintiff carried the property into Vermont, and before the 
 return day of the attachment the defendant took the property from the plaintiff 
 on attachment against Hartwell, retui'nable in Vermont. The judge directed a 
 verdict for the defendant, on the ground that the lien both of the officer and the 
 plaintiff", occasioned by the attachment in New York, was discharged by carry- 
 ing the property into Vermont, and that it was thereby made liable to attachment 
 as the property of Hartwell. The Snp^^'"^ Court, in reversing the judgment, said : 
 " This property was legally attached in New York, and a qualified property there- 
 by created in the officer to the property, for which he was liable to the plaintiff 
 to answer the debt, or to Hartwell, if the attachment was otherwise discharged. 
 It is obvious that this liability of the officer would continue both to the plaintiff 
 and Hartwell, though the officer or his agent should convey the property into 
 another State; and if his liability would continue, it is difficult to see why his 
 qualified property, thus legally created, should not also continue and be recog- 
 nized in a sister State. The legal possession being in the officer, he may deliver 
 it to another for safe keeping, who thereby has the legal possession, the inva- 
 sion of which is a trespass. The condition in the plaintiff's receipt, that he 
 would return the property to the officer on demand, and that the officer should 
 not be liable to the plaintiff if the property should not be returned, does 
 not alter the case, as such w-ould have been the effect had the receipt been silent 
 on the subject. The remaining question is, inasmuch as the property was deliv- 
 ered to the attaching creditor, and was taken by the creditors of the owner, is 
 not the officer discharged from both, and so his qualified property ended, on the
 
 § 459. WHEN PERSONAL PROPERTY BOUND BY LEVY. 425 
 
 § 459. The right to attach and levy upon the property of 
 a debtor pertains to the remedy, and depends upon the law 
 of the place where the property is found and attached.^ For 
 instance, if a debtor's property of a certain kind, and to a 
 certain amount which is exempt from attachment and levy 
 by the law of one State, is taken into another, it is liable to 
 attachment in the latter, unless exempt by its law. It was 
 accordingly held, in Vermont, that a person's only cow could 
 not be taken on attachment or execution, notwithstanding 
 the owner of the cow lived, in Canada, and the cow had 
 strayed therefrom into Vermont.^ * In Kice v. Courtis,^ the 
 
 ground that the creditor can never claim of him, as he took the property and 
 never returned it, and the debtor can have no claim, as his creditors took and 
 legally held it? This question may first be considered as unconnected vpith any 
 change of the property from one to another jurisdiction. It has ever been the 
 practice in this State, that the officer makes the attaching creditor keeper of the 
 property, if he is a responsible man and willing to undertake the trust. If the 
 above doctrine be true, the debtor might, in such case, take the property from 
 the creditor with entire impunity. This proves too much, and is inconsistent. 
 In the second place, this attaching officer's liabilities were not ended. If, after 
 settling the plaintiffs debt, Hartwell should call for his property, it would not 
 be a defense for the officer or the plaintiff to say that they had removed the 
 property to another State where it was subject to different process, and exposed 
 in a different market, and there it was taken by other creditors. The responsi- 
 bility and qualified property in the officer continued, and therefore this action 
 may be sustained." 
 
 ' Story on Confl. of Laws, 462. 
 
 ' Haskill V. Andros, 4 Vt. 609. ' 33 Vt. 460. 
 
 * In this case, the court said: "It has been correctly urged, that the law of 
 the place where a remedy is attempted to be enforced must always govern the 
 proceedings had to enforce the remedy. Whatever remedy our laws give to en- 
 force the performance of a contract, will equally avail the citizen or the foreigner; 
 and they equally must be subject to any restraints which the law imposes upon 
 them. Our inhabitants can have no greater rights in enforcing a claim against a 
 foreigner tlian an alien can have in enforcing a similar claim against one of our 
 own citizens. Whoever submits himself or his property to our jurisdiction, 
 must yield to all the requirements which are made of our citizens in relation to 
 the collecting of debts or maintaining suits, and is clearly entitled to all the 
 benefits, exemptions and privileges to which other debtors or suitors belonging 
 to our State are subject or entitled. If the one can hold a cow, suitable wearing 
 apparel and necessary household furniture, without having the same taken from 
 him by execution, so can the other. Nothing short of the express language of 
 a statute would justify us ip saying that a person may, by virtue of au execu- 
 tion, be stripped of his wearing apparel, his necessary household furniture and 
 his only cow, merely because he resides under another government, when a per- 
 son residing here would not be subject to the same inconvenience and distress." 
 
 Wliere in an action of trespass, brought to recover the value of a quantity of 
 intoxicating liquor claimed by the plaintitt", and which was taken by the defend- 
 ant by attachment, on a writ against a third person, it was urged, in behalf of 
 the defendant, that the court below was wrong in charging the jury that if the 
 liquor was purchased by the plaintifl' in New York, with the intent to sell it in
 
 426 TAKING PERSONAL PROPERTY BY OFFICER. § 460. 
 
 question presented was whether, where j^ersoual property- 
 had been assigned for the benefit of creditors by an act done 
 legally out of the State, any change of possession was requi- 
 site in Vermont, in order to place it beyond the reach of 
 j)rocess of the Vermont courts against the assignor. It was 
 urged that such a change of possession was required, in order 
 to perfect the assignment when made out of the State, be- 
 cause it was a rule of policy uniformly required in the trans, 
 fer of all personal property within the State as a visible 
 index of its being no longer liable uj)on process against the 
 former owner ; that it was no part of the contract of assign- 
 ment to be controlled by the law of the place of assignment, 
 but a matter purely of local policy, to prevent fraud, and 
 therefore not a matter to be controlled by the contract, 
 or by the law governing the contract, but a local form or 
 act to be governed by the law of the forum where the prop- 
 erty was situated and the remedy sought. It was held, that 
 the requirement of a change of possession in the transfer of 
 personal j)roperty, in order to put it beyond the reach of the 
 process of the State courts, against the former holder, was a 
 matter so far afl^ecting the settled policy of the jurisprudence 
 of Vermont on the subject, that it could not be dispensed 
 with out of deference or comity to the law of any other 
 State.* 
 
 § 460. Whether goods carried from one State into 
 another by a debtor are to be regarded as his property for 
 the purposes of attachment and levy, or the property of a 
 
 New Hampshire in violation of the law of that State, and was on its way across 
 Vermont to New Hampshire for the purpose of being so sold, that would not 
 prevent the plaintiff's recoveiy against a mere trespasser, the Supreme Court said : 
 " There is nothing in the laws of this State that prohibits the inhabitants of any 
 of the other States from transporting intoxicating liquor across this State to an 
 adjoining State, even though with the intent to sell it in violation of the laws of 
 such adjoining State. It is no violation of the law here, and the courts of this 
 State are not called upon to protect the inhabitants of New Hampshire against 
 the violation of their laws " (Harrison v. Nichols, 81 Tt. 709). 
 
 * Although where, in an action for taking property, the defendant justifies 
 •under an attachment issued in another State, it is incumbent upon him to show 
 that the process was according to the law of that State ; yet if the objection be 
 not made at the trial, it will be deemed waived (Doane v. Eddy, 16 Wend. 533).
 
 § 460. WHEN PERSONAL PROPERTY BOUND BY LEVY. 427 
 
 mortgagee who has acquired a lieu ou theui by the law of 
 the place of the contract, does uot seem entirely settled. In 
 Cobb V. Buswell/ the plaintiff claimed title to certain per- 
 sonal property, for which the action was brought, under 
 three chattel mortgages from one Wooster to him. The de- 
 fendant justified the taking under writs of attachment and 
 executions against Wooster. It was admitted that the mort- 
 gages were regularly executed and recorded according to the 
 laws of New Hampshire, where the parties lived, and where 
 the property was then situated, and that by the statute of 
 New Hampshire, the plaintiff might let the property remain 
 in the possession and use of the mortgagor without rendering 
 it liable to attachment as the mortgagor's property. The 
 question was whether the taking of the property by the 
 mortgagor into Vermont subjected it to attachment by his 
 creditors, although not so liable under the laws of New 
 Hampshire. It was held that it did not, and that, therefore, 
 the plaintiff was entitled to recover.* The case of Mont- 
 gomery V. Wight ^ arose between a mortgagee under a 
 mortgage executed in Canada, and an attaching creditor 
 under a subsequent attachment in Michigan. The mortgagor 
 resided in Michigan, and owned, and was in possession of the 
 horse in question, at Detroit. He subsequently removed 
 into Canada, and took the horse witli him, and executed the 
 mortgage in Canada, under a statute by whicli the mortgage 
 was valid without a change of possession. Afterward, hav- 
 ing lived in Canada about a year, he took the horse to 
 Detroit, to be trained, and, after the horse had been there 
 about six weeks, it was attached as the property of the 
 
 • 37 Vt. 337. " 8 Mich. 148. 
 
 * Woodward v. Gates, 9 Vt. 358, involved an inquiry into the validity of a 
 chattel mortgage executed in New Hampshire. But the court decided the case 
 upon the ground that the statute of New Hampshire regulating mortgages of 
 personal property had not, in that case, been complied with. Williams, Oh. J., 
 however, in delivering the opinion of the court, remarked that "The only re- 
 maining question is, whether the statute of New Hampshire proiects the property 
 of the plaintiff against tiie attachment of the defendants. If the statute had 
 been complied with, my individual opinion is, that it could not have availed the 
 plaintiff. The property, when in this State, was subject to attachment at the 
 suit of the creditors of the vendor, so long as his possession remained unchanged."
 
 428 TAKING PERSONAL PROPERTY BY OFFICER. § 461. 
 
 mortgagor. The statute of Canada required the mortgage to 
 contain a particular description of the property, and • the 
 court held, on the authority of decisions of the Canadian courts, 
 that the mortgage was void by the law of Canada, as against 
 creditors, for want of a more particular description of the 
 property. That point, they held, was decisive of the case. 
 The court, however, expressed the opinion that the attach- 
 ment would still have j)revailed if the mortgage had been 
 valid by the laws of Canada.* 
 
 4. Protection afforded to officer hy process. 
 
 § 461. We have seen ^ that a mere ministerial officer who 
 executes the process of a court having jurisdiction of the sub- 
 ject-matter, and authority to issue such process in general, or 
 in certain specified cases, is protected in the execution 
 thereof, when it is regular on its face and apparently within 
 the jurisdiction of the court issuing it.^ f The general rule 
 
 • Ante, § 334. 
 
 ' See Savacool v. Boughton, 5 Wend. 170; Churchill v. Churchill, 13 Vt. 661; 
 Parker v. Walrod, 13 Wend. 296; affiN;! 16 Wend. 514; Steel agst. Fish, Brayt. 
 230 ; Reed v. Conway, 20 Mo. 22 ; Hamilton v. Williams, 26 Ala. 527 ; Keniston 
 V. Little, 10 Fost. 318; State v. Weed, 1 lb. 262. 
 
 * In determining which law shall govern, the domicil of the contracting par- 
 ties at the time of the contract, the place of the contract, and the situs of the 
 property at the time ef the contract, are all to be considered. It is sometimes 
 said that personal property has no situs, and for some purposes it is true, or, 
 more properly, it is for some purposes immaterial; but for other purposes, and 
 as applicable to questions of this character, the actual sittbs of the property is not 
 to be disregarded. Much of the conflict in the decisions on this subject has 
 arisen from the different effect different courts have given to these several con- 
 siderations, where the place of the contract, the domicil of the parties to it, and 
 the situs of the propertv have been not all in one jurisdiction at the time of the 
 contract (Cobb v. Buswell, 37 Vt. 33'7). 
 
 t Where in an action of trespass against the commander of a United States 
 frigate, for bringing to and taking out of her course a neutral vessel, by reason 
 of which the vessel was captured by another nation, it appeared that the acts of 
 the defendant were pursuant to instructions from the United States naval de- 
 partment, and no collusion was shown between the captors and the defendant, it 
 was held that he was not liable (Ruan v. Perry, 3 Caines, 120). 
 
 Haskell v. Sumner, 1 Pick. 459, was an action of trespass de lonis asportatis. 
 The defendant justified that he, as deputy sheriff, levied on the goods and effects 
 of the plaintiff, in the hands of A. B. and C, they having come into court and 
 disclosed that they had in their hands the goods and effects in question, and 
 being thereupon adjudged the trustees of the plaintiff, to which the plaintiff 
 replied that the property was exempt from attachment and execution. It was 
 held that the action could not be maintained. The court said: " A person may
 
 § 461. PROTECTION AFFORDED TO OFFICER BY PROCESS. 429 
 
 is, that wliere the subject-matter of any suit is not within the 
 jurisdiction of the court applied to for redress, everything 
 done is absolutely void, and the officer, as well as the party, 
 becomes a trespasser; but that when the subject-matter is 
 within the jurisdiction of the court, and the want of jurisdic- 
 tion is to the person or place, then the officer is excused, 
 unless the want of jurisdiction appears in the process.^ In 
 the case of the Marshalsea,^ Sir Edward Coke, in exemplify- 
 ing the distinction in this respect between a proceeding 
 coram non judice and a proceeding iiiverso ordine^ or errone- 
 ous, says : " If the Court of Common Pleas, in a plea of debt, 
 doth award a capias against a duke, earl, tfec, which by law 
 doth not lie against them, and the same appeareth in the 
 writ itself, yet if the sheriff arrest them by force of the capias, 
 although that the writ be against law, notwithstanding, inas- 
 much as the court hath jurisdiction of the cause, the sheriff is 
 excused." In that case, a capias was an irregular process. 
 The proceeding should have been by summons and distriri' 
 
 be a trustee for having in his possession a specific article, or for owing the 
 debtor a sum of money. No appeal was made from the judgment, and aa exe- 
 cution was issued directing the officer to take the goods of the principal in the 
 hands of the trustees. They gave to the officer several articles of which they 
 had been held trustees, and the officer sold them in the ordinary manner. This 
 comes within the common case of an officer protected in his acts of obedience to 
 a proper authority. The defendant had no right to look behind the judgment 
 of the Court of Common Pleas. All that we decide is, that trespass will not lie 
 under these circumstances." 
 
 Scott V. Sherman, 2 Wm. Blackstone's R. 977, was an action of trespass 
 against custom-house officers for entering the plaintiff's house and carrying away 
 some wines called Geneva, which had been removed that morning from the 
 plaintiff's ship to his dwelling, and which constituted part of the ship's stores. 
 The defendants introduced in evidence a record of condemnation of the Geneva 
 in the Court of Exchequer at a prior term. The Court of King's Bench held that 
 the plaintiff could not recover, because the property of the goods being changed, 
 and irrevocably vested in the crown by the judgment of condemnation, it fol- 
 lowed as a necessary consequence, that neither trespass nor trover could be 
 maintained for taking them in an orderly manner; for the condemnation related 
 back to the time of seizure. It was added that, as the plaintiff knew of their 
 seizure, and was notified of the condemnation by two proclamations, according 
 to the course of the court, it was his duty to have put in his claim, and, neglect- 
 ing this, he was forever barred by the condemnation not only with respect to 
 the goods themselves, but every other collateral remedy for taking them. 
 
 ' Cloutman v. Pike, 7 N. II. 209; Barnes v. Barber, 1 Gilman, 401; Parker 
 V. Smith, lb. 411; McDonald v. Wilkie, 13 111. 22; Tefft v. Ashbaugh, lb. 602; 
 Milburn v. Gilman, 11 Mo. 64. 
 
 ' 10 Co. R. 76.
 
 430 TAKING PERSONAL PEOPERTY BY OFFICER. § 462. 
 
 gas. Yet, as the court had jurisdiction in actions of debt 
 against peers of the realm, the sheriff was justified under the 
 capias, although peers were not amenable in that mode.* 
 
 § 462. In England, a distinction was made at an early 
 day between process issued by courts of general and special 
 jurisdiction, holding that to render process issued by the 
 latter a justification for him who executed it, it must appear 
 that he who issued the process had jurisdiction in the partic- 
 ular case in which the process issued. This rule was applied 
 in Nichols v. Walker and Carter,^ which was an action for 
 entering the plaintiflJ^s house and taking away his goods. 
 Carter was a churchwarden, and Walker an overseer of the 
 poor of the parish of Hatfield, and they attempted to justify 
 what had been done under a warrant from three justices of 
 the peace requiring them to collect a poor rate which had 
 been assessed upon the plaintiff. It appeared that the 
 plaintiff was not liable to be taxed. It was claimed that as 
 the defendants acted under a warrant from the justices they 
 were excused. But it was held, that as the rate was not 
 legally assessed upon the plaintiff, the warrant did not justify 
 the defendants. The court said : " It is not like the case 
 where an ofiicer makes an arrest by warrant out of the 
 
 * Cro. Char. 394. 
 
 * Where the plaintiff procured a second execution to be issued by a justice 
 after the first had been indorsed satisfied, it was held that, as the process was 
 regular upon its face, and issued by a magistrate who had jurisdiction of the 
 subject-matter, the officer was justified in proceeding under it, it being the duty 
 of an officer to execute process regular upon its face and within the legitimate 
 power of the court issuing it, without first inquiring into the regularity of the 
 previous proceedings (Lewis v. Palmer, 6 Wend. 367). 
 
 It was well observed by Chief Justice Nelson, in Webber v. Gay, 24 Wend. 
 485, that "to go beyond the rule that, if the court has jurisdiction of the sub- 
 ject-matter, and the process is regular on its face, the officer will be protected, 
 would lead to a new and troublesome issue which would tend greatly to weaken 
 the reasonable protection to ministerial officers. Their duties, at best, are suf- 
 ficiently embarrassing and responsible. The experience of the officer will soon 
 enable him to determine whether the process is in regular form or not, or he can 
 readily obtain the necessary advice. But he must be presumed wiser than the 
 magistrate, if even a knowledge of the proceedings would enable him to decide 
 correctly, if they happened to be erroneous." 
 
 Case, and not trespass, is the proper remedy for malicious motive and want 
 of probable cause in the execution of process regular on its face (Smith v. Miles, 
 1 Hemp. 34).
 
 § 463. PROTECTION AFFORDED TO OFFICER BY PROCESS. 431 
 
 king's court, which, if it be error, the officer must not con- 
 tradict, because the court hath general jurisdiction. But 
 here the justices of the peace have but a particular jurisdic- 
 tion to make warrants to levy rates well assessed." But in 
 King V. Danser,^ Lord Kenyon said : " A distinction indeed 
 has been made with respect to the persons against whom an 
 action may be brought for taking the defendant's goods in. 
 execution by virtue of tlie process of an inferior court, where 
 the cause of action does not arise within its jurisdiction, the 
 plaintiff in the cause being considered a trespasser, but not 
 the officer of the court." And in Ladbroke v. Crickett,^ Bul- 
 ler, J., remarked that ^' if upon their face the court had juris- 
 diction, the officer was bound to execute the process, and 
 could not examine into the foundation of them, and that will 
 protect him." 
 
 § 463. In New York, an officer who executed process is- 
 sued by a court without jurisdiction Avas formerly held to 
 strict accountability. In Cable v. Cooper,® it was affirmed 
 that " every tribunal proceeding under special and limited 
 powers decides at its peril, and hence it is that process issu- 
 ing from a court not having jurisdiction is no protection to- 
 the court, to the attorney, or the party, nor even to a minis- 
 terial officer wbo innocently executes it. This is a stern 
 and sacred principle of the common law which requires to 
 be steadily guarded and maintained." But in Savacool v. 
 Bough ton,* the non-liability of the officer was asserted, on 
 the ground that it was unjust to hold him liable as a tres- 
 passer for doing what -it was his duty to do, without know- 
 ing, or having the means of knowing, whether his process 
 was or was not invalid. In a subsequent case,^ the court 
 said : " The law imposes various duties upon ministerial 
 officers, to the discharge of which they are absolutely bound 
 provided there is no jurisdiction. And tbough there be a 
 
 ' 6 Term R. 243. " 2 Term R. 653. See ante, § 335. 
 
 M5 Johns. 152. " 5 Wend. 170. 
 
 ' Earl V. Camp, 16 Wend. 562.
 
 432 TAKING PERSONAL PROPERTY BY OFFICER. § 463. 
 
 total want of jurisdiction, if it be not apparent on the face of 
 tlie process, the law will not put them to inquire and judge 
 of the case. In general, they ought not to look beyond the 
 process, and in no case need they do so. Their duty is 
 usually to arrest the person or take the goods of another. 
 Wherever there is jurisdiction of the process, the law means 
 to make the officer safe in yielding implicit obedience."^ 
 Subsequently it was held that process regular upon its face 
 would protect the officer, though issued without authority,^ 
 and though he had knowledge of facts rendering it void for 
 want of jurisdiction.^ ^ In Porter v. Purdy,* it was said that 
 the same consideration should excuse a commissioner of high- 
 ways, or trustee of a village, when they are required to act 
 upon evidence which they cannot be presumed to know is 
 forged, and are without means of determining whether it is 
 or is not genuine. " If," said MuUin, J., in delivering the 
 opinion of the court, " in such case there is a want of juris- 
 diction, the proceeding should be reversed or annulled. But 
 the officer should not be held to be a trespasser unless he 
 knows, or has reason to know, that he is acting without juris- 
 diction." f 
 
 ' And see Lyon v. Yates, 53 Barb. 237 ; Kerr v. ]\Iouat, 28 N. Y. 659 ; Wilton 
 Manf. Co. v. Butler, 34 Maine, 431. 
 
 ^ Noble V. Holmes, 5 Hill, 194; Cornell v. Barnes, 7 lb. 35. 
 
 = The People v. Warren, 5 Hill, 440. " 29 N. Y. 106. 
 
 * In the People v. Warren, svpra, the defendant was convicted of assault and 
 battery upon an officer in resisting' an arrest under a warrant issued by inspectors 
 of election, and it was held that the knowledge of the officer that the inspectors 
 had not jurisdiction did not afl'ect his right to make the arrest (s. p. Webber v. 
 Gay, 24 Wend. 485). The rule which justifies the officer when acting under 
 process regular on its face is one of protection, not of assault — a shield but not a 
 sword. The officer, when sued, may defend under sucli process, but he cannot 
 build up a title upon it Avhich will enable him to maintain an action against 
 third persons. See Sturbridge v. Winslow, 21 Pick. 83. Two officers proceeded 
 under attachments in favor of different creditors, which, though void as to the 
 parties in whose favor they issued, were regular upon their face, and without 
 any apparent defect of jurisdiction on the part of the magistrate who issued 
 them. It was held that the officer who levied first, and out of whose custody 
 the other officer took the property, could not maintain trespass for the taking 
 (Horton v. Hendershot, 1 Hill, 118). An action of trespass cannot be main- 
 tained for the violation of an elector's privilege, under lawful and regular pro- 
 cess, though done maliciously (Swift agst. Chamberlain, 3 Conn. 537). 
 
 t In Fox V. Wood, 1 Rawle, 143, the collector of a militia fine was protected, 
 though the delinquent was exempt from military duty. The contrary seems to
 
 § 4G4. PROTECTION AFFORDED TO OFFICER BY PROCESS. 433 
 
 § 464. An officer is bound to obey, without looking into 
 the grounds of action, any precept put into his hands to serve, 
 which appears on its face to be regular and to have been is- 
 sued by competent authority ; and his private knowledge of 
 facts showing that there is no cause of action, will not change 
 his duty or liability.^ * Watson v. Watson ^ was an action 
 
 have been held by the Supreme Court of the United States in Wise v. Withers, 3 
 Cranch, 331. The plaintiff in the latter was a magistrate in the District of 
 Columbia, and as such not subject to military duty. He was fined for neglect of 
 such duty, and a warrant for the collection of the fine issued to the defendant, 
 who seized his property thereon. For this act he was prosecuted. The court 
 said that it was a settled principle that the decision of such a tribunal in a case 
 clearly without its jurisdiction would not protect the officer acting under it, and 
 that the court and officers would all be trespassers. In Savacool v. Boughton, 5 
 Wend. 170, Marcy, J., in commenting upon the case of Wise v. Withers, said: 
 " The only point much considered in the case was that which involved the ques- 
 tion as to the plaintiff's exemption from military duty, but that which related to 
 the defendant's protection under his warrant was only glanced at in the argu- 
 ment of the counsel and in the decision by the court. The distinction contended 
 for in this case was scarcely raised there, and the attention of the court does not 
 appear to have been drawn to a single case in which it has ever been noticed. 
 The Chief Justice, in the opinion of the court, merely observes that it is a princi- 
 ple that a decision of such a tribunal (a tribunal of limited jurisdiction), clearly 
 without its jurisdiction, cannot protect the officer who executes it. I would 
 with deference ask whether there is not an error in the application of the princi- 
 ple which the Chief Justice lays down to the case then before the court ? He 
 must mean by a decision being clearly without the jurisdiction of the court, a 
 sentence or judgment on a matter not within its cognizance. Was the subject- 
 matter of that cause beyond the cognizance of a court-martial ? It appears to me 
 that it was not. The power and duty of the court was to punish and fine delin- 
 quents, consequently it had jurisdiction over the subject-matter, but not over the 
 person. There was nothing in the process which the ministerial officer executed 
 to apprize him that the court had not jurisdiction of the person. It seems to 
 me that it was not a case to which the principle laid down by the court was ap- 
 plicable, but it would have been such a case if there had been a want of juris- 
 diction over the subject-matter. I can scarcely consider, therefore, the deter- 
 mination of the Supreme Court of the United States in the case of Wise v. 
 Withers a deliberate decision on the question now before us." 
 
 The statute of Tennessee of Nov. 20, 1861, establishing an ordinance bureau, &c., 
 empowering the governor of the State to commission persons in each county to col- 
 lect the arms of the citizens, and fining those who refused to give them up, was held 
 to be a violation of the bill of rights, which permits citizens to keep and bear arms 
 for the common defense, and one who, being duly commissioned under the 
 statute, took a person's gun away from him, was held personally liable as a tres- 
 passer (Smith V. Ishenhour, 3 Cold. Tenn. 214). 
 
 ' Belk V. Broadbcnt, 3 Term R. 183, 185; Brainard v. Head, 15 La. An. 489; 
 Grumon v. Raymond, 1 Conn. 40, Daggett, J., dissenting. 
 
 ^ 9 Conn. 140; and see Cornell v. Barnes, 7 Hill, 35, and Earl v. Camp, 10 
 Wend. 502, contra. 
 
 * Badkin v. Powell and others, Cowp. 470, was an action of trespass brought 
 against two persons for taking the plaintifTs horse and cart, and also against the 
 pound keeper for receiving them. The original taking was admitted to be 
 wrongful; and the court held that, as the pound keeper was bound to take and 
 keep whatever was brought to him, at the peril of the person who brings it, he 
 Vol. I.— 28
 
 434 TAKING PERSONAL PROPERTY BY OFFICER. § 465. 
 
 of trespass against a constable for taking and carrying away 
 a horse, under a writ of replevin which commanded him to 
 cause the beasts of the plaintiff, impounded or distrained, 
 to be replevied. It was proved that the horse in question 
 was not impounded or distrained, and that the defendant 
 knew it. From this, the plaintiff argued that the defendant 
 ought not to have served the replevin, and that in so doing 
 he became a trespasser. It was, however, held that, as the 
 defendant was a legal officer,^ it was his duty, regardless of 
 any knowledge or supposed knowledge of his own that there 
 existed no cause of action, to serve the writ committed tc^ 
 him ; that the facts on the face of the writ constituted his 
 justification, because he was obliged to obey its mandate, and 
 it was not any part of his duty to determine whether the 
 allegations contained in the replevin were true ; that being 
 an executive officer, it was his duty to execute, and not to 
 decide on the truth or sufficiency of the processes committed 
 to him for service ; and, therefore, if they were issued by 
 competent authoi'ity, and with legal regularity, and so ap- 
 peared on their face, he was justified for eveiy act of his 
 within the scope of their command. 
 
 § 465. Where, however, the process shows on its face that 
 the court issuinoj it had not jurisdiction, the officer who at- 
 tempts to execute it will be a trespasser;^ and this liability 
 applies to a case where the want of jurisdiction arises from a 
 fact of public notoriety which is presumed to be equally 
 within the knowledge of the officer as well as others, and of 
 which he is, therefore, bound to take notice.^ Adkins v. 
 Brewer ^ was an action of trespass for seizing and selling the 
 goods of the plaintiff under a void attachment, issued by a 
 justice of the peace, without proof of absence or concealment, 
 
 was not a trespasser. Lord Mansfield remarked that "It would be terrible were 
 he liable to an action for refusing to take cattle in, and also liable in another ac- 
 tion for not letting them go." 
 
 ' The State v. Mann, 5 Iredell, 45 ; Whitfield v. Johnston, 1 lb. 473 ; Sprague 
 V. Birchard, 1 Wis. 457. 
 
 ^ Parker v. Walrod, 13 Wend. 296; aff'd 16 lb. 514. 
 
 ■ 3 Cowen, 206; and see Van Steenburgh v. Kortz, 10 Johns. 167.
 
 § 405. rEOTECTION AFFORDED TO OFFICER BY PROCESS. 435 
 
 and without bonds being taken pursuant to the statute. It 
 appeared that the ])roperty in question was sold by a 
 constable, under eight other executions older than the void 
 one ; that the constable levied and sold under all the exe- 
 cutions, at the same time, indiscriminately ; and that the 
 void execution, as well as the others, was satisfied by the sale 
 andthemoney paid to the plaintiff. It was held that all con- 
 cerned were trespassers. But where goods have been seized 
 under a void process, the officer may afterward execute a 
 legal warrant, the subsequent valid seizure not being viti- 
 ated by the previous trespass.-* ''^ Gile v. Devens ^ was an ac- 
 tion of trespass against a United States marshal for seizing 
 
 ' Percival v. Stamp, 9 Exch. 167; Hooper v. Lane, 6 H. L. C. 443. 
 
 =" 11 Cush. 59. 
 
 * Where goods are wrongfully seized under a writ, there is a broad and well 
 recognized distinction between the cases of process which is void or set aside as 
 illegally sued out, and a writ liable to be abated and which is afterward actually 
 abated. In the former, the process is considered as never having issued, so far as 
 concerns the party who sues it out. If goods be taken on an execution which was 
 illegally issued and afterward set aside on that account, and an action of trespass be 
 brought therefor, the defendant cannot justify under the execution because it 
 has not and never had any legal existence. But an original writ that is abatable 
 may or may not be abated, according to the defendant's plea. If it be afterward 
 abated, it is by judgment of the court ; and the writ, so far from being a mere nul- 
 lity, becomes a record, and is the foundation of the judgment which the court 
 renders. In the one case, an action of trespass may be maintained ; while, in 
 the other, an action upon the case is the proper and exclusive remedy (See Hay- 
 den V. Shed, 11 Mass. 500). 
 
 A defective affidavit, which may be amended, will be a good defense in an 
 action of trespass against those acting under it in attaching the jiroperty of a 
 non-resident debtor (see State v. Foster, 10 Iowa, 435). 
 
 No defect should render process entirely void, where the matter intended can 
 be understood, however defective the mode of expression. Process may be 
 regarded as voidable by reason of defects, without serious prejudice to the rights 
 of parties, because such defects are, in their nature, amendable under the orders 
 of the court upon such reasonable terms as may be just to both parties ; and such 
 defects may be waived or released by agreement of parties, or by such acts of 
 the party entitled to take advantage of them, as show that they are not relied 
 upon, as suffering a default, ])leading over to the merits, and the like. But it 
 is otherwise with such defects as render process void. Parties Avho have acted 
 ignorantly, imder such invalid process, may be subjected to be treated as wrong- 
 doers and trespassers, where they have intended to act with entire propriety. 
 And courts will hardly hesitate to sustain such process, where, without violence 
 to the ordinary usages of language, it may be so understood as to render it legal 
 and operative (Kelly v. Oilman, 9 Fost. 885). 
 
 Where a warrant, to collect a fine, issued by a militia officer, recited that the 
 same was imjjosed by C. S. Captain, but it was signed "' C. S. Jun. Captain," it 
 was held that the process was legal, junior being, in law, no part of a person's 
 name (Brainard v. Stilphin, 6 Vt. 9).
 
 43G TAKING PERSONAL PROPERTY BY OFFICER. § 466. 
 
 the plaiutifTs goods. It appeared that the goods were, at 
 first, attached iu the plaintiff's store, as the property of one 
 Cobb, and that a few hours afterward, it having been dis- 
 covered that the goods did not belong to Cobb, but to the 
 plaintiff, the writ was altered by inserting therein the name 
 of the plaintiff as joint defendant with Cobb ; and the goods 
 were thereupon a second time attached as the property of 
 Gile the present plaintiff. The plaintiff contended, that dur- 
 ing the time the defendant held the goods on a writ against 
 Cobb alone, he was clearly a trespasser ; and that, after the 
 alteration of the writ, he was still a trespasser for two rea- 
 sons: — 1st. That the first attachment being tortious, and the 
 goods having been held under it up to the time of making 
 the second attachment, such new attachment was not valid ; 
 2d. That the alteration of the writ, after the ofiicer had made 
 an attachment upon it, rendered the second attachment a nul- 
 lity. At the trial in the common pleas, the judge ruled that, 
 as the original attachment was tortious, the officer could not, 
 while he held such tortious possession and attachment, make 
 a new attachment under which he could justify. But the 
 Supreme Court held, that the plaintiff was only entitled to 
 judgment for the amount of the injury which he had sus- 
 tained in consequence of the first attachment ; that the al- 
 teration of the writ furnished no objection to the defendant's 
 proceedings under it ; and that, if the writ had been bad, 
 the plaintiff ought to have objected to it by plea in abate- 
 ment or motion to dismiss, and the defendant could not be 
 treated as a trespasser for serving it. 
 
 § 466. The extent of the officer's liability in executing a 
 writ in replevin does not seem to be settled; some of the 
 cases have held that where the command of the writ is to 
 replevy and deliver certain specified chattels, the process 
 will be sufficient protection to the officer, though he take tlie 
 chattels from the possession and they are the property of one 
 who is a stranger to the writ, unless the person in possession 
 claims the goods when the officer comes to demand them,
 
 § 4C6. PROTECTION AFFORDED TO OFFICER BY PROCESS. 437 * 
 
 and tlie officer takes them, notwithstanding such claim of 
 property.^ * Foster v. Pettibone,^ was an action of trespass 
 commenced before the enactment of the New York Code, 
 brought for the taking by the defendant of a quantity of 
 flour, the property of the plaintiff. The defendant, at the 
 time of the taking, was sheriff of the county of Cayuga, and 
 took the flour from the possession of one Baker, under a writ 
 of replevin issued in a suit in favor of one Brown against 
 Baker, directed to him and requiring him to take the prop- 
 erty. The question in the case was, whether the present de- 
 fendant was liable as a trespasser to the present plaintiff, the 
 owner of the flour, for taking it as a sheriff", in obedience to 
 the writ. Or, in other words, w^hether trespass could be 
 maintained by the owner of goods against a sheriff for taking 
 them under a writ of repleviti, against another person having 
 the goods in possession. The referee before whom the action 
 was originally tried, nonsuited the plaintiff', on the ground 
 that the defendant was justified by the writ; and the ruling 
 of the referee w^as afterward affirmed by the Supreme Court.f 
 
 ' Hallettv. Byrt, Carthew, 380; Willard v. Kimball, 10 Alien, 211; Ship- 
 man V. Clark, 4 Denio, 446; per Bronson, Ch. J. 
 
 ^ 20 Barb. 350, Johnson, J., dissenting ; Stimpson v. Reynolds, 14 Barb. 500, 
 contra. 
 
 * In Willard v. Kimball, supra, Metcalf, .1., in delivering the opinion, stated 
 the case thus: "The papers show the facts alleged in the defendant's answer to 
 be true ; that a writ of replevin, in due form of law, was put into the deputy's 
 hands, sued out by the persons named in the answer, against William A. Knowles, 
 in whose possession the coal then was, and that the deputy served that writ, in 
 all particulars, in the manner prescribed by law, taking the coal from the posses- 
 sion of Knowles. This shows a justification of the deputy in serving the writ. 
 Neither he personally, nor the defendant, whose deputy he is, can be held liable 
 in damages to this plaintiff for that service, even though it could be proved that 
 the plaintifl's in that action of replevin had no rightful claim to the coal, and 
 that this plaintiti" was the sole owner of it. The deputy did what his precept 
 commanded him to do, and nothing more. What the result of that action of 
 replevin was we are not informed, and need not know; whether it is still un- 
 decided, or whether judgment has been rendered for the defendant in replevin. 
 There can be no pretence, we think, that the failure of a plaintift" in replevin to 
 maintain his action, renders the officer who served the writ liable in damages to 
 the defendant, or to any other person who may have a claim to the replevied 
 property." 
 
 Wliether an officer would be liable to the true owner of goods, if, on a writ 
 of replevin commanding him to take them from the possession of the defendant 
 in replevin, he should take them from such owner, or from some other person, 
 {jucere (Willard v. Kimball, supra). 
 
 t In Foster v. Pettibone, supm, Strong, J., who delivered the opinion, re-
 
 438 TAKING PEESONAL PROPERTY BY OFFICER. § 4G7. 
 
 In King r. Orser/ the New York Superior Court decided 
 that, as the officer under the Code can only take the prop- 
 erty described in the affidavit of the plaintiff when it is 
 found in the possession of the defendant or his agent, if the 
 property is in the possession of any other person than the 
 defendant, the officer in taking it acts at his peril, and can 
 only free himself from liability as a trespasser by showing 
 that such person was in reality no more than an agent of the 
 defendant ; and that if the officer failed in this proof, he was 
 just as liable for the value of the proj^erty to the person 
 from whose possession it was wrongfully taken as he was to 
 the true owner of goods which were levied on and sold under 
 an execution against another. And in Ohio, it has been held 
 that where property is taken by an officer by virtue of a 
 writ of replevin from the possession of a third person, who 
 is the hona fide owner thereof, the officer will be liable, al- 
 though the property taken be the same that is described in 
 the writ.^ 
 
 § 467. Where an execution, regular upon its face, is 
 issued upon a judgmen: rendered by a court having juris- 
 diction of the subject-matter, the officer is under no obliga- 
 tion to inquire into the regularity of the service of the orig- 
 inal writ.^* He may justify by producing the execution 
 
 marked that " it was a consideration entitled to no small weight against the 
 right of action, that as often as property had l)een seized under a writ of re- 
 plevin issued therefor, which belonged to or was claimed by some other person 
 than the parties, no case could be found in which a recovery against the officer 
 who served the writ as a wrong-doer had been permitted ; that the fact was a 
 striking testimony to the prevalence of an opinion among the profession ever 
 since the action of replevin had existed, that no liability was incurred by the 
 officer by acts done by him in obedience to the process." 
 
 ' 4 Duer, 431. ' State v. Jennings, 14 Ohio, N. S. 73. 
 
 = Smith v. Bowker, 1 Mass. 76 ; Averett v. Thompson, 15 Ala. 678 ; Wilton 
 Manf. Co. v. Butler, 34 Maine, 431. 
 
 * Smith V. Bowker, supra, was an action of trespass against a deputy sheriff, 
 for taking and selling cows of the plaintifl', by virtue of an execution on a judg- 
 ment against the plaintiff in an attachment suit. It was contended by the pres- 
 ent plaintiff, that the defendant was a trespasser, for the reason that the writ of 
 attachment was against Smith, of Orange, in the county of Hampshire, whereas 
 it should have been against Smith, of Athol, in the county of Worcester. But 
 it was held that the defendant was entitled to judgment. Strong, J., said: 
 ''The question is, whether the defendant was bound to inquire as to the service
 
 § 467. PROTECTION AFFORDED TO OFFICER BY PROCESS. 439 
 
 under which he acted, without proving the judgment. But 
 when he sees fit to go beyond the process, or when, for any 
 other reason, it becomes necessary for him to prove a judg- 
 ment, he cannot do so without pleading it.^ Any other per- 
 son claimins: the benefit of the official acts of the officer, must 
 prove the judgment. And the officer must do the same wlien 
 he is asserting a quasi title by virtue of the levy as against 
 any other than the judgment debtor.^ * If the execution be 
 
 of the original writ. He certainly was not. The officer is not holden to look 
 beyond his execution. It might, perhaps, be a question whether the judgment 
 rendered, as that was, on default, might not be reversed; but with that question 
 the officer has nothing to do. I have never known a question like this, except 
 in cases of writs of error. I think that the defendant in the original action 
 could take advantage of the mistake in the writ only by pleading in abatement. 
 Be that as it may, I am clear that tlie present defendant has legally executed his 
 writ, and that he is therefore, upon the state of facts submitted, entitled to 
 judgment." 
 
 The levy of an execution upon the property of a corporation where, in the 
 judgment and execution, the corporation is styled differently from the name 
 given it by its charter, will not constitute a trespass (Wilton Manf. Co. v. Butler, 
 34 Maine, 431). 
 
 ' Dennis v. Snell, 54 Barb. 411 ; Shaw v. Davis, 55 lb. 389. 
 
 ' Mower v. Stickney, 5 Min. 397. 
 
 * The decision in High v. Wilson, 3 Johns. 46, and in the several cases in 
 the English courts whichpreceded it, went no further than to require the pro- 
 duction of the judgment in a suit with a stranger who showed in himself a title 
 to the property which was good as against the defendant in the execution. In 
 Lake v. Billers, 1 Ld. Raymond, 733; Martyn v. Podger, 5 Burr. R. 2631; Ack- 
 worth V. Kempe, 1 Doug. R. 41, and in the case of High v. Wilson, before re- 
 ferred to, the plaintiffs showed title in themselves dei'ived from the defendant 
 in the execution before the lien of the execution attached thereon. The execu- 
 tion of itself, therefore, was no defense to the officer, who could only make it 
 available against a stranger to it by connecting it with a judgment, and then 
 showing that the transfer of the property to the person thus claiming it was 
 fraudulent and void as against the creditor who had recovered such judgment. 
 In this view of the subject, the cases referred to may be sustained upon prin- 
 ciple, as tlie production of the judgment record was necessary to establish the 
 fact tliat the execution issued upon a judgment rendered for a cause of action 
 which existed, or for a debt contracted before the issuing of such execution, 
 otherwise there would have been no creditor as against whom the transfer of the 
 property could have been fraudulent. But tliere are many cases in which it has 
 been held, that where the officer has levied upon property in the possession of 
 the defendant in the execution, and it has been subsequently taken from him by 
 a stranger, he may sustain an action against such stranger upon his title and pos- 
 session under the execution alone, without producing the judgment to show that 
 the execution had regularly issued (the Chancellor, delivering opinion in Parker 
 V. Walrod, 16 Wend. 514). 
 
 In trespass against an execution creditor and the bailiff of a county court for 
 seizing goods on Ijchalf of a judgment creditor, the plaintiff put in the warrant 
 of execution, with the indorsement thereon by the officer that he had taken the 
 goods under it. It was held that the bailiff, as well as the execution creditor, 
 was bound to prove the judgment, and that the warrant reciting the judgment
 
 440 TAKING PERSONAL PROPERTY BY OFFICER. § 468. 
 
 voidable only, and not void, it will protect both the officer 
 and the party at whose instance it is issued.^ And although 
 it is satisfied in fact, yet if it is unsatisfied on its face, and 
 the officer has no notice of the satisfaction, he will not be 
 liable as a trespasser for acting under it.^ Where a deputy 
 sheriff acting under a void commission, levied on goods, and 
 the goods were sold by him, it was held, in an action against 
 the sheriff, that he was protected by the execution.^ 
 
 § 4G8. Where a judgment debtor exhibits to the officer, 
 who has an execution against him, a receipt, and offers to 
 prove by a witness the settlement of the debt, the officer is 
 not bound to investigate the genuineness or sufficiency of the 
 receipt.* Within this principle, where an officer had an exe- 
 cution to collect, which issued on a judgment rendered for the 
 amount of a note duly negotiated, it was held that he was 
 not a trespasser for proceeding to collect the same, after the 
 debtor had procured and shown him a discharge from the 
 nominal plaintiff, the assignor, and forbidden his thus pro- 
 ceeding.^ * So, likewise, an officer will be protected who pro- 
 
 (tbough put in by the plaintiff) was no evidence of such judgment (White v. 
 Morris, 2 J. Scott, 1015). 
 
 ' Nichols V. Thomas, 4 Mass. 232; Sandford v. Nichols, 13 lb. 286; Cogbura 
 V. Spence, 15 Ala. 549; Wilmarth v. Burt, 7 Mete. 257; Batchelder v. Currier^ 
 45 N. Hamp. 460. 
 
 ^ Thrower v. Vaughan, 1 Richardson, 18. 
 
 ' Crockett v. Lattinier, 1 Humph. 272. 
 
 * Twitchell v. Shaw, 10 Cush. 46 ; Wilmarth v. Burt, 7 Mete. 257. 
 ' Lampson v. Fletcher, 1 Vt. 168 ; ante, § 336. 
 
 * In this case, it was said: "The court are equally disposed to protect the 
 lona Jide assignee of a note in his right of action, if any such right exists upon 
 the note, and the right of the signer of the note to make any defense that exists 
 before he has notice of the assignment. But we think that each must attend to 
 his rights in proper season, and not by letting the proper season go by neglected, 
 so pursue his rights afterwards as unnecessarily to embarrass the rights of the 
 other party, and more especially, the rights of a public officer. In this case, 
 when the note was sued, the defendant Lampson ought to have made his defense, 
 whether it were an offset or discharge from Jennison, before judgment against 
 him. The suit was then under the care of Austin, the assignee, and he would 
 have had opportunity to meet this defense, and show it unjust, if he could. 
 But Lampson, instead of preferring his defense where Austin could know and 
 meet it, takes his judgment in his action against Jennison, of which action 
 Austin was probably ignorant ; if not, he had no right to appear in it ; and while 
 Austin's execution is in the hands of the sheiiff, he procures a discharge from 
 Jennison, by offsetting judgments, and shows this discharge to the sheriff, and
 
 § 4G9. PROTECTION AFFORDED TO OFFICER BY PROCESS. 441 
 
 ceeds in good faith to serve an execution after being told by 
 the defendant that an appeal has been taken/ 
 
 § 469. Where an officer acts officiously and as a volunteer, 
 it is incumbent upon him to show that the process was legal 
 and sufficient.^ * If he is engaged in a conspiracy, the writ, 
 
 forbids his proceeding with the execution, while Austin, whose ownership was 
 known to Lampson long before his suit upon the note, asserts his right to control 
 the execution, and directs the sheriff to proceed. He follows the direction of 
 Austin and levies upon a wagon of Lampson, for which he brought his action of 
 trespass. Under these circumstances, the sheriff did right in obeying Austin. 
 Lampson had neglected his defense till the note had passed into a judgment, 
 which warranted the execution, which was 'prima facie a good authority to take 
 the wagon. Lampson had no right to stop the course of tliis execution by a dis- 
 charge merely from Jennison, who, as Lampson knew, had conveyed the note to 
 Austin. If he would stop the progress of the execution in this stage of it, he 
 must resort to his audita querela^ in which the merits of his claim may be tried, 
 and his bonds to prosecute will keep good and safe the rights of Austin while 
 the matter is in litigation. In the course taken by Lampson, Fletclier must 
 either obey or disobey a regular and legal execution, at the peril of deciding cor- 
 rectly, a dispute between Austin and Lampson about the defense which Lampson 
 had, but did not make, to the note assigned to Austin. If he decided this point 
 wrong, and obeyed the process, Lampson treats him as a trespasser. If he de- 
 cided the same point wrong and disobeyed the process, Austin has his action in 
 the name of Jennison for such neglect. It will not do to sanction a course which 
 necessarily places a sheriff in such a dilemma. When a discharge is shown to a 
 sheriff from a person who is the owner of the debt, and the sheriff knows him to 
 be the owner, and has no doubt about the fairness of the discharge, if the sheriff 
 should proceed with the execution regardless of such discharge, he would prob- 
 ably be considered a trespasser. But he must not be so considered in the present 
 case. He was not obliged to take the responsibility of disobeying both the direc- 
 tions of Austin, who gave him the execution, and the precept of the execution 
 itself." 
 
 ' Foster v. Wiley, 27 Mich. 244. ' Hunt v. Ballew, 9 B. Mon. 390. 
 
 * Stoughton V. Mott (15 Vt. 162) was an action of trespass for seizing and 
 conveying away a sloop laden with arms and munitions of war. The defendant 
 justified under an act of Congress which provided for the seizing of vessels and 
 arms prepared for expeditions against conterminous territory of foreign nations 
 with whom the United States were at peace. On the trial in the County Court, 
 a question arose as to what should be deemed the frontier. The judge instructed 
 the jury that it was the boundary line between the United States and the jDrov- 
 ince of Canada; and that unless the evidence satisfied them that the sloop was 
 to be conveyed beyond the line and into the province of Canada, the defendant 
 had no authority to seize and detain the vessel. The Supreme Court said : " The 
 term ' frontier ' embraces a tract of country, of a greater or less widtii, bordering 
 on, and contiguous to, the line ; and though both the act of Congress and the 
 plea speak of the vessel as about to pass the frontier for a place within a foreign 
 State or colony, yet we do not consider it necessary, in order to justify the ofh- 
 cers therein mentioned in seizing and detaining a vessel, that the vessel should 
 actually be about to pass the boundary line. Indeed, such a construction would 
 render the act wdiolly insufficient and inoperative. It cannot be, that a vessel. 
 with arms and munitions, might'approach the extreme verge of the frontier, close 
 to the line, where, as the evidence tends to prove, all the arms, ammunition and 
 munitions of war could be taken therefrom, and used with the consent of the 
 owner in forwarding and carrying on military operations within the territory of
 
 442 TAKING PERSONAL PROPERTY BY OFFICER. § 4G9. 
 
 though regular on its face, issued by a court of competent juris- 
 diction and regularly returned, will afford him no protection,^ 
 It is his duty to refrain from executing process when notified 
 that it has been superseded ; and if he do not, he will become 
 a trespasser.^ Hickok V. Coates ^ was an action of trespass 
 for carrying away personal property belonging to the plaintiff. 
 The plea alleged that the defendant, as sheriff, had levied on 
 the property in question, and that the plaintiff, knowing that 
 fact, had improj^erly obtained possession of it ; and that the 
 defendant peaceably retook the property, in order to execute 
 the writ by virtue of which he had levied. The replication 
 did not deny the levy, but averred that, after the levy, the 
 plaintiff' in the execution ordered the defendant (the sheriff) 
 to suspend further jDroceedings, he, the plaintiff' in the execu- 
 tion, with whom the property was left, having sold it to the 
 plaintiff in this suit for a valuable consideration. It was held 
 that, as the plaintiff in the execution, in consequence of the 
 directions given by him to the defendant (the sheriff'), lost his 
 lien upon the property, the replication was good in substance.* 
 
 a foreign power, with whom the United States were at peace, and no officer of 
 the United States be justified in interfering. We think that the otficers men- 
 tioned in the act of Congress were authorized and justified by that act in seizing 
 and detaining any vessel having on board arras or munitions of war sailing in the 
 frontier and near to the boundary line, and in a direction to the foreign province, 
 if they had probable cause to believe, and did believe, either from the character 
 of the vessel, or the quantity of arms and munitions on board, or other circum- 
 stances, that either the vessel or the munitions of war were intended to be em- 
 ployed, either by tlie owner or any other person with his privity, in carrying on 
 any military expedition or operations within the territory of a foreign power. 
 As the decision of the court made the justification of the defendants to depend 
 wholly on the fact whether the vessel was about to pass the boundary line of the 
 United States into the province of Canada, the decision was erroneous, and must 
 be reversed." 
 
 ' Slomer v. People, 25 III. 70. 
 
 ' Srorrison v. Wright, 7 Port. 67. ' 2 Wend. 419. 
 
 * An officer who has attached personal property and delivered it to a receiptor, 
 may take it from the owner, who has been allowed to retain it by the receiptor. 
 Bond V. Padelford (13 Mass. Bfi4), was an action of trespass against a deputy 
 sheriff for taking and carrying away cattle. It appeared that the defendant, 
 having attached the cattle, witliout removing them, took an accountable receipt 
 for them from one Flagg, and that the defendant afterwards took the cattle out 
 of the plaintiff's possession. Counsel for plaintiff contended that the defendant, 
 by taking a receipt for the cattle, waived his* special property in them. The 
 court, in nonsuiting the plaintiff, said: "This action is conceived on mistaken 
 principles. The present plaintiff had no interest in the agreement made between 
 the defendant and Flagg. He had no right to the custody or use of the cattle
 
 § 471, LIABILITY OF OFFICER IN SEIZING GOODS. 443 
 
 5. Dutij and liability of officer in seizing goods. 
 
 § 470. At common law, when personal tangible property 
 is seized by virtue of an execution, it forthwith vests in the 
 sheriff, and the plaintiff in the execution cannot meddle with 
 it.* If it is taken away, none but the sheriff can retake it, 
 or, by action recover it or the value of it. The property 
 when once levied upon, is in the custody of the law, and the 
 sheriff is bound to preserve it against all the world for the 
 purpose of satisfying the judgment. To him alone can the 
 plaintiff look for the application of it to this purpose.^ 
 Where an officer leaves property levied on in the hands of 
 the debtor in the execution, the officer becomes as to the 
 creditor the insurer of the property against its loss.^ 
 
 § 471. It is the duty of an officer having an attachment, 
 to whom goods of the debtor are shown, to seize them, take 
 them into his custody, and keep them under his control, so 
 that he may have them to answer any judgment which the 
 plaintiff in the suit may recover. If the officer chooses to 
 deliver them into the hands of a third person on his receipt 
 and promise to have them forthcoming, still, the law con- 
 siders the goods in the hands of the officer, and such third 
 person is but his servant. The officer ought to perform this 
 
 after they were attached. He held them merely by the indulgence and at the 
 pleasure of the officer, or Flagg, w.ho can be considered in this transaction in no 
 other character than as the servant of the officer. Flagg could have maintained no 
 action for the cattle in his own name. Bat he might lawfully, at any time, have 
 taken them out of Bond's possession, notwithstanding any contract between him 
 and the officer. So might the officer, although he had made a return of the writ. 
 The special property remained in liim, and he had a complete right to the posses- 
 sion ; and his exercising that right v/as no injury to Bond." 
 
 The taking of property attached from the possession of the officer who made 
 the attachment, by one who had no authority to seize it, is not within the reason 
 which may excuse the non-production on the ground of inevitable accident. It 
 might be very mischievous to hold that tliis furnished any excuse, except it 
 should be for delay until the sheriff could pursue the trespasser to judgment 
 (Lovell v. Sabin, 15 N. llamp. 29). 
 
 ' Skinner v. Stuart, 39 Barb. 206. 
 
 " Browning v. Ilanford, 5 Denio, 586. The chancx3llor, contra ; s. p. 5 Hill, 
 588, per Cowen, J. ; s. c. 7 lb. 120. 
 
 * A purchaser at an execution sale, who takes possession of the property pur- 
 chased against the command of the officer, is a trespasser, though he be the 
 plaintiff iu the execution (Garner v. Willis, Breese, 21)0).
 
 444 TAKING PERSONAL PROPERTY BY OFFICER. § 472. 
 
 duty opeiily aud fairly, that a debtor attentive to his affairs 
 may not be deprived by him of any opportunity which his 
 situation affords to prevent expense and the waste and de- 
 struction of his property. ^ The officer in the discharge of 
 his duty on occasions of this kind must be allowed the exer- 
 cise of some discretion, and is not to be made liable for every 
 trivial mistake in judgment he may make in doubtful cases. 
 But tlie discretion allowed him must be a sound discretion, 
 exercised with perfect good faith, and with an intent to sub- 
 serve the interests of both the debtor and the creditor. * If 
 he seize property beyond the limits of his territorial jurisdic- 
 tion, he will be liable in trespass to the owner. ^ 
 
 § 472. An officer is not bound to attach and take posses- 
 sion of property already under attachment, unless it is suffi- 
 cient to pay the debt secured by the previous attachment ; 
 and if he do so, he will be deemed a trespasser. ^ Where, 
 however, a receiptor of property attached, has permitted the 
 debtor to hold and use it as owner, the attachment is re- 
 garded as dissolved so far that the property may be attached 
 by another officer who has no notice that there is a prior 
 attachment still subsisting. ■* f But if the officer know that 
 
 ' Barrett v. White, 3 N. Hamp. 210. " Parmlee v. Leonard, 9 Iowa, 131. 
 
 ' West River Bank v. Gorham, 38 Vt. 649. 
 
 * Robinson v. Mansfield, 13 Pick. 139; Denny v. Willard, 11 lb. 519. 
 
 * It being the interest of both the debtor and the creditor, that property 
 attached should be preserved and not be wasted, some arrangement has in gen- 
 eral been made to prevent the damage which hay and grain in the straw must 
 sustain by a removal. Either some person has been found in whose custody it 
 could be left, or who was willing to become responsible for the delivery of it 
 when demanded ; or it has been in some other way secured in the place where 
 attached. It is believed to have been very rare that hay or grain in the sheaf, 
 has been removed from a barn; and when it has been, it was only when small 
 quantities were attached. In this way creditors have been enabled to seize this 
 sort of property to secure their debts without any material injury to the debtor. 
 There is a close analogy between attachments upon mesne process and a distress 
 at common law to compel an appearance or the performance of a duty. In En- 
 gland the common law was altered on the subject of distress by the statute of 2 
 W. & M. cli. 5, which enacted that any person having rent in arrear, on a de- 
 mise, might seize sheaves or shocks of corn, or corn in the straw or loose, or hay 
 in a barn, granary, or upon a hovel, stack or rick, or otherwise, upon any part 
 of the land charged with such rent, and lock up aud detain the same in the place 
 where found, so as such corn be not removed to the prejudice of the owner (Ba- 
 con's Abr. Distress, D. ; Co. Litt. 47, a, i\ o Bl. Com. 9, 10). 
 
 t Where A., a deputy sherifi", attached a horse as the property of another.
 
 § 472. LIABILITY OF OFFICER IN SEIZING GOODS. 445 
 
 there is a siibsistino; attachment and an unrestricted contract 
 of bailment, he cannot acquire a lien by attaching it, although 
 the debtor at the time have the possession of the property. ^ 
 One who buys personal property at a public judicial sale, may 
 leave it with the defendant in the execution without making 
 it liable to be taken under another execution. It must be 
 left, however, under such a contract of bailment as would in 
 law protect it from the bailee's creditors the same as if he 
 had never been the owner of it. It may be hired or loaned 
 with safety. But if it be sold or given, the purchaser parts 
 with his title, and cannot maintain trespass against anybody 
 for taking it, ^ 
 
 and left it with the owner who claimed the horse, but agreed to redeliver it to 
 the officer, and afterward B., another deputy sheriff, with process against the 
 same debtor, attached the horse and carried it away, and while the horse was in 
 B.'s possession A. seized it and sold it on his execution; it was held in an action 
 of trespass by B. against A. that the plaintifi' was entitled to recover the value of 
 the horse, Fisher v. Cobb, 6 Vt. 622, Royce, J., dissenting as to the right of the 
 plaintiff to recover the value of the property. 
 
 Where an officer after attaching personal property neglects to perfect his lien 
 created by his attachment, and it is afterward taken from his custody by another 
 officer under a second writ of attachment against the same debtor, and the prop- 
 erty is sold by the second officer under an execution obtained in the second suit, 
 and the avails applied thereon, the first officer can recover only nominal damages 
 against the second officer for such taking (Goodrich v. Church, 20 Vt. 187). 
 
 Where an officer upon attaching personal property places it in charge of a 
 person and takes his receipt for it, and the latter transfers the property to an- 
 other, who gives the receiptor a bond to indemnify him against the receipt, the 
 officer may take the property out of the transferee's hands at any time during the 
 pendency of the attachment (Briggs v. Mason, 31 Vt. 433). 
 
 Where a bailee of goods which are attached, gives a receipt for them promis- 
 ing to redeliver them to the officer on demand, and afterwards appropriates the 
 goods to his own use, he may show in an action of trespass brought against him 
 by the debtor, that the goods were his own property (Barron v. Cobleigh, UN. 
 Hamp. 557). It is somewhat difficult to reconcile with the foregoing the case of 
 Bursley v. Hamilton, 15 Pick. 40. There the defendant gave a receipt for articles 
 attached, promising to redeliver them on demand. In an action on the contract 
 it w^as proved that the property attached belonged to the defendant and not to 
 the debtor; but it was said by Shaw, C. J., that, '"in an action to enforce the 
 promise, he is precluded from alleging property in himself by way of defense." 
 
 A. sheriff having levied upon goods, left them in the custody of a third per- 
 son, under an agreement under seal that they should be redelivered at a certain 
 time and place, and on failure thereof that such person should confess judgment 
 for the amount of the debt and costs in the suit, and the cost of the writ. It was 
 held that the sheriff had not such a possession of the goods as would entitle him 
 to maintain trespass against the defendant in the execution for taking them 
 away (Lewis v. Carsaw, 15 Penn. St. R. 31). 
 
 ' Young V. Walker, 12 N. II. 502; Whitney v. Farwell, 10 lb. 9; Carpenter 
 v. Cummings, 40 lb. 158. 
 
 * Dick V. Cooper, 12 Harris, 217.
 
 44G TAKING PERSONAL PROPERTY BY OFFICER. § 473. 
 
 § 473. An officer may become liable, even where lie acts 
 ill perfect good faitli. If, for instance, lie seize the goods of 
 A. under a writ against him, and it subsequently appears 
 that they were exempt, it will be no justification that the 
 property belonged to A. The direction to attach always 
 includes the idea of attachable property, and the officer 
 takes it at his peril in this respect ; and if it prove not to 
 have been attachable, he is a trespasser.^ The mere silence 
 of the party would furnish no excuse.^ Ignorance of the 
 officer would not be a defense ; but proof of knowledge on 
 his part that the goods were exempt would be a strong 
 circumstance in aggravation.^* Where, however, the law 
 exempts certain articles to be selected by the owner from 
 seizure and sale on execution, an action of trespass cannot 
 be maintained against the officer for selling them, unless the 
 plaintiff show that at the time of the levy, or within a short 
 time thereafter, he selected the articles, and gave the officer 
 •notice that he had done so.* f 
 
 ^ Gibson v. Jenney, 15 Mass. 205; Howard v. Williams, 2 Pick. 80; Foss v. 
 Stewart, 14 Maine, 312; Beau v. Hubbard, 4 Cusb. 85; Brown v. Wait, 19 Pick. 
 470; Deyo v. Jennison, 10 Allen, 410; Buckingbam v. Billings, I'd Mass. 82; 
 Iloyt V. Van Alstyne, 15 Barb. 568; Dow v. Smith, 7 Vt. 465; Crocker v. Spen- 
 cer, 2 D. Chipmau, 68; Leavitt v. Metcalf, 2 Vt. 342; Kilburn v. Deming, lb. 
 404; Spooner v. Fletcher, 3 lb. 133; Fry v. Canfield, 4 lb. 9; Haskill y. Andros, 
 Ih. 609; Hart v. Hyde, 5 lb. 328; Leavitt v. Holbrook, lb. 405. 
 
 ^ Frost V. Mott, 34 K Y. R. 253. ' Lynd v. Picket, 7 Minn. 184. 
 
 *• Frost V. Shaw, 3 Ohio, N. S. 270. 
 
 * In has been held, in North Carolina, that an ofBcer who seizes, under exe- 
 cution, privileged articles, such as arms for muster, does not thereby become a 
 trespasser, unless he seizes them knowing that they are privileged (,Tlie State v. 
 Morgan, 3 Iredell, 186). 
 
 t In New Jersey it has been held that an officer may seize and hold goods 
 imder an attachment or execution until he can inventory and appraise them, al- 
 though the goods are exempt from execution (Bonnell v. Dunn, 5 Dutch. N. J. 
 R. 435). 
 
 In an action against a sheriff for levying upon property exempt from execu- 
 tion, the 07ms proTiandl to show that the property is exempt rests on the plaintiti' 
 (Carnrick v. Myers, 14 Barb. 9). 
 
 It is not competent for the defendant to prove that the goods were mortgaged 
 by the plaintiff without consideration and in order to defraud his creditors. If 
 the goods were exempt from attachment for the plaintiff's debts, he did no 
 wrong to creditors by mortgaging them without consideration or otherwise, such 
 a mortgage not being fraudulent, and not rendering goods liable to attachment 
 "which were not so otherwise (Bean v. Hubbard. 4 Cush. 85). 
 
 Trespass is the proper form of action at common law for seizing goods, by 
 virtue of an attachment, which are exempt. But now, in Massachusetts, under
 
 § 474. LIABILITY OF OFFICER IN SEIZING GOODS. 447 
 
 § 474. An officer is not authorized by virtue of a precept 
 against one person to take and sell the property of another. 
 He must ascertain at his own risk that the property to be 
 taken and sold is the property of the person against whom 
 he has a precept. And he is not, in doubtful cases, obliged 
 to take it without a full indemnity. The owner of property 
 against whom he has no precept is not obliged to notify him 
 before he will be entitled to maintain an action, unless the 
 owner has so conducted with his own property as to forfeit 
 his legal rights ; ^ and it makes no difference that the plaint- 
 iff in the execution assured the officer that they were the 
 defendant's goods.^ In trespass by J. J., the elder, against 
 the sheriff and H., the sheriff' justified under Sifi.fa. issued 
 against the goods of the plaintiff by H. Replication that 
 the fi.fcL did not issue against the goods of the plaintiff'. 
 H. had obtained judgment against another J. J., who was 
 the son of the plaintiff, and thereupon issued 2iji.fa. against 
 J. J., without any further description, under which the goods 
 of J. J., the elder, were taken. It was held that the plea 
 
 the statute of 1839, ch. 151, § 4, trover will equally well lie (Devlin v. Stone, 4 
 Cusli. 359). 
 
 There may be cases where the taking of property exempted by law would 
 furnish no ground for an action of trespass, and where a license to attach and a 
 subsequent attachment in pursuance of that license would not only justify the 
 officer in attaching the goods, but also, in selling them afterwards, notwith- 
 standing the debtor might attempt to countermand the permission to attach after 
 it was executed, and to regain the possession of the goods. 
 
 nice V. Chase, 9 N. Hamj}. 178, was an action of trespass against a deputy 
 sheriff for attaching certain articles of household furniture, which were exempt by 
 law from seizure. It was admitted that at the time of the taking it was clearly 
 an act of trespass; and the question was, whether the subsequent declarations of 
 the plaintiff, made to a third person and ofl'ei'ed to be proved in the case, could 
 be given in evidence to change the character of the act from a trespass to a justi- 
 fiable taking, or operate as a waiver of the right then vested in the plaintiff to 
 maintain an action for such taking. The court, per Parker, C. J., said: " The 
 answer is plain. A mere loose declaration, made to a third person, without any 
 consideration paid by the creditor or officer, and without any knowledge on their 
 part at the time that such a declaration had been made, cannot be construed to 
 deprive the ])laintiff of a right of action which had previously accrued to him for 
 tlie trespass" (citing Tufts v. Hayes,- 5 N. Hump. 452). 
 
 ' Lothrop V. Arnold, 25 Maine, 136; Rogers v. Weir, 34 N. Y. 463; Saunder- 
 .son V. Baker, 2 W. Black. 832; Ackworth v. Kempe, Doug. 40; Samuel v. Duke, 
 3 Mees. & Wels. 622; Angell v. Keith, 24 Vt. 371. 
 
 ' Bac. Abr. N. S. ; Roberts v. Thomas, T. R. 88.
 
 448 TAKING PERSONAL PROPERTY BY OFFICER. § 474. 
 
 was disproved, and that the writ afforded no justification to 
 the sheriff.^ * 
 
 ' Jarmain v. Harper, 6 Man. & G. 827. 
 
 * It was also held that H. was liable in trespass, notwithstanding he had not 
 in any way interfered beyond giving instructions to the attorney to sue his 
 debtor, J. J., the son. 
 
 Where an officer, having separate executions against a father and son, levied 
 on three horses belonging to the son as the property of the father, and the son, 
 before the day of sale, offered to pay the execution against him, but the officer 
 refused to accept payment, and sold the horses, it was held that the officer be- 
 came a trespasser ah initio (Parish v. Wilhelm, 63 N. C. 50). 
 
 In California, it has been held that before an officer can be made liable for 
 seizing the goods of a third person under an attachment, he is entitled to notice 
 of the claim of such third person and a demand of the goods ; that a conversa- 
 tion between the claimant and the officer's bailee is not a sufficient notice; and 
 that the officer's right to notice is not affected by the fact that he had obtained 
 indemnity before seizing the goods (Taylor v. Seymour, 6 Cal. 513). 
 
 There is no difference in the law applicable to the levy of an execution on 
 property exempt from such levy, and a levy on the property of a third person not 
 the execution debtor (Williams v. Miller, 16 Conn. 143). 
 
 An inquisition taken by an officer is not a justification to him in an action of 
 trespass for taking the goods of the plaintiff, but can only go in mitigation of 
 damages (Townsend v. Phillips, 10 Johns. 98). The authorities referred to in 
 Bayley v. Bates, 8 Johns. 185, support this view, and make a distinction be- 
 tween an action against the sheriff for taking goods not belonging to the de- 
 fendant in the execution, and an action against him l)y the party in the execution 
 for returning nulla lona upon the strength of such an inquisition. It may, in 
 many cases, justify him upon a charge for a false return for omitting to act; but 
 not, in the other case, for actually seizing goods not belonging to the party 
 against whom he was to proceed. 
 
 Where goods seized under the New York absconding debtor act are claimed 
 by a third person, if the sheriff, notwithstanding the finding in favor of the 
 claimant, detain the goods without taking a bond of indemnity, he cannot be 
 charged with anything beyond an act falling within the ordinary execution of 
 his duty; and if it shou\d turn out, ultimately, that the goods belonged to the 
 claimant, it will not lay the foundation for damages beyond the value of the 
 property (Batchellor v. Schuyler, 3 Hill, 386). The statute alluded to in this 
 case provides that if goods seized under the absconding debtor act are claimed 
 by a third person as his property, the sheriff shall summon a jury to try the 
 validity of the claim, " in the same manner and with the like effect as in case of 
 seizure under execution." If the jury find in favor of the claimant, the goods 
 are to be forthwith delivered to him or his agent, unless a bond be given by the 
 attaching creditor to indemnify the sheriff for the detention of the goods. In 
 case of such indemnity, the sheriff is bound to keep the goods in his possession 
 (N. Y. Rev. Sts. 5th ed. vol. 3, p. 80, sect.s. 10 & 11). From the language of 
 the foregoing statute, it might seem that the sheriff was bound to redeliver the 
 property after inquisition found in favor of the claimant, unless a bond of in- 
 demnity were tendered. The court, in the above case, per Nelson, Ch. J., said: 
 "The preliminary inquiry before the jury is not conclusive upon the parties, and 
 if the sheriff, as in case of an execution, chooses to take the risk of showing, in 
 a suit by the claimant, that the property belongs to the debtor, I see no objec- 
 tion to the seizure and detention without the indemnity. If the bond were in- 
 tended for the benefit of the claimant, and not of the sheriff, it might be other- 
 wise; but the former has no interest in it. It is a bond of indemnity only, 
 intended exclusively for the security of the officer, and with which the claimant 
 has no concern," 
 
 If a marshal, under an execution of a United States court, seizes the goods
 
 § 475. LIABILITY OF OFFICER IN SEIZING GOODS. 449 
 
 § 475. An exception to the foregoing rule has been made 
 when tlie owner of the goods has allowed the judgment 
 debtor to exercise acts of ownership over them ; in which 
 case, an action of trespass against the officer lias not been 
 sustained without proof of notice, or a demand upon him for 
 restitution ; ^ * unless it be shown that some actual damage 
 
 of a third person, he may be sued therefor in the courts of the State (Hanna v. 
 Steinberger, 6 Blackf. 520). 
 
 ' Vose V. Stickney, 8 Minn. 75. 
 
 * Moore v. Bowman, 47 N. H. 494, was an action of trespass against an offi- 
 cer, for attaching the phiintiff's mare, on a writ against a tliird person, the mare 
 being at the time in the debtor's stable, and seized by the officer wnth another 
 horse belonging to the debtor. The jury having found a verdict for the plaintiff 
 for the value of the horse, and interest from the taking, together with exem- 
 plary damages, the Supreme Court directed judgment to be entered thereon, 
 upon the plaintiff's remitting the exemplary damages. The court said: "If the 
 horses were accidentally placed in the stable, without fraud on the part of tlie 
 plaintiff, and the defendant selected two as the horses of the debtor, and at- 
 tached them, intending to hold them at all events, and not temporarily till he 
 could get further information, and he insisted upon holding tliem after notice 
 that one of them belonged to the plaintiff, he would be liable in trespass if the 
 horse belonged to the plaintiff, and he was not estopped to claim it by some 
 fraudulent act on his jxtrt. Had the plaintiff's and the debtor's horses been in- 
 termingled so that the officer, using due diligence, could not distinguish them, 
 he might perhaps take all and hold them until there was an opportunity to iden- 
 tify them. But his right to take possession and hold the plaintiff's horse would 
 be limited by the occasion for it, and if, instead of taking it for the hiwful pur- 
 pose, he took it for the purpose of holding it at all events, he would be liable in 
 trespass. But it is urged that the two horses were so placed by the fault and 
 negligence of the plaintiff, and that, as the defendant was thereby misled, the 
 taking was not unlawful. Had they been accidentally placed in adjoining stalls, 
 it is quite clear that this would give the defendant no right to attach the plaint- 
 iff's horse as the property of the debtor, any more than to sell it as such. He 
 might have taken and dei:ained the three horses a reasonable time till he could 
 make inquiries, and ascertain which belonged to Moore. But if, instead of that, 
 upon the knowledge he already had, he selected these two, and attached them, 
 with a determination to hold them at all events, he would be liable to the 
 plaintiff in this form of action, and could not justify the taking upon the ground 
 of mistake, any more than if he had taken the plaintiff's horse alone. He would 
 have power to detain the whole until he could make inquiry. But if he did not 
 take and detain them for that purpose, he had no right to take the plaintiff's 
 horse at all. This would be illustrated by the supposition that he took the 
 plaintiff's horse uf)on the ground that his title was derived from the debtor, and 
 that the sale was fraudulent as to the creditor. The language of some of the 
 cases would seem to imply that if the goods were so intermingled that the officer 
 could not select those of the debtor, he miiJ-ht, without notice to the other 
 party, attach and iiold tlie whole until those of the other party were designated 
 and claimed by him. Upon such views, the officer might have taken all the 
 horses in the stable where he found tliese, and held them until identified by 
 their owners. Such a doctrine, we think, cannot be supported. It is not neces- 
 sary, to enable the sheriff properly to execute his precept. If, as in this case, he 
 wishes to attach two out of many horses in the same stable, he is bound to make 
 reasonable efforts and inquiries, in order to ascertain what horses belong to the 
 debtor. If the various owners and the debtor are at hand, he would ordinarily 
 Vol. L— 29
 
 450 TAKrsra personal property by officer. § 475. 
 
 lias accrued to the owner of the goods, and tliat he has been 
 prevented, by the act of the officer, from recovering posses- 
 sion of them,^ A further exception to the liability of the 
 officer would arise in case of acquiescence on the part of the 
 owner of the goods in their seizure and sale. In Fiero v. 
 Betts & Hubbell,^ Betts was an officer, and Hubbell, the 
 plaintiff in an execution against one Clow, under which 
 goods owned jointly by Fiero and Clow were sold. As to 
 Betts, it appeared that Fiero was present at the sale and bid 
 on a part of the property sold, and purchased some of the 
 property through an agent. There was no evidence that he 
 claimed at the sale any interest in the jDroperty sold, or that 
 he forbade the ^ale of any part of it, or that any objection was 
 made by him to the sale ; and it appeared that Betts, at the 
 commencement of the sale, declared that he sold only the 
 right and title of Clow to the property. It was held that 
 the questions, whether the plaintiff consented to the sale, 
 and whether Betts sold only the right of Clow in the prop- 
 erty, should have been submitted to the jury; and that if 
 Fiero either assented to, or acquiesced in the sale, or if Betts 
 only sold Clow's interest in the property, trespass could not 
 be maintained ag^ainst him. So likewise, where one of sev- 
 eral administrators was present at a levy upon the goods of 
 his intestate, and furnished to the officer making the levy a 
 list of the articles, and was present at the sale and made 
 statements to the" bidders, it was held that he and the other 
 administrators could not proceed against the officer as a tres- 
 passer.^ If, however, the goods were seized under an attach- 
 ment, the action may be maintainedj notwithstanding the 
 
 inquire of them ; although, to guard against interference, he might, while mak- 
 ing such inquiries, detain in the stable such horses as he had reason to suppose 
 might prove to be those he sought. This power, we think, is all that is neces- 
 sary, and is the view that best accords with the adjudged cases. Nor do we 
 think that the rule is otherwise where the goods are carelessly or negligently in- 
 termingled, but without fraud." 
 
 • Tancred v. AUgood, 4 H. & N. 438; 38 L. J. Exch. 363. 
 
 ^ 3 Barb. 633. 
 
 ' Camp V. Moseley, 3 Floiida, 171 ; Ponder v. Moseley, lb. 207 ; but see 
 Rogers v. Fales, 5 Penn. St. R. 154.
 
 § 476. LIABILITY OF OFFICER IN SEIZING GOODS. 451 
 
 owner came in and filed his claim to the property, and recov- 
 ered judgment for its restitution.^ 
 
 § 476. Where property of the wife is seized under an ex- 
 ecution against her husband, the officer is liable to her in 
 damages for such illegal seizure.^ The question most likely 
 to arise in such case will be, as to the wife's right to the 
 goods as her separate estate. Bruce and Wife v. Thompson,^ 
 was an action of trespass to recover the value of property 
 sold by the defendant as an officer upon execution, for the 
 sole debt of the husband, the property being the annual 
 products of the wife's land in his possession, and carried on 
 at the expense of the husband. The parties, before their in- 
 termarriage, made, in contemplation of such an event, what 
 they considered a mamage settlement, which was a stipula- 
 tion between themselves merely, and without the interven- 
 tion of trustees, that the wife should enjoy her separate prop- 
 erty without interference on the part of the husband. It 
 was claimed that the marriage settlement, as it was called, 
 was sufficient to exempt the annual crops of the wife's land 
 from attachment and levy of execution on the husband's 
 debt. It was held that such a contract, executed without the 
 intervention of trustees, being incomplete, would not, at law 
 certainly, have that effect; that, at most, it was but an 
 agreement to make a suitable marriage settlement, and the 
 parties beneficially interested, whether the wife or children, 
 might, on application to a court of equity, compel the execu- 
 tion of such a settlement as the court should deem reasona- 
 ble, which would then be effective to protect the property at 
 law.* But in Connecticut, where, in trespass against a deputy 
 
 ' Trieber v. Blocher, 10 Md. 14. 
 
 ' Mock V. Kennedy, 14 La. An. 32. » 26 Vt. 741. 
 
 * The statute referred to in Bnice v. Thompson, supra, was as follows: " The 
 rents, issues and profits of the real estate of any married woman, and the interest 
 of the husband in her rij^ht in any real estate, shall, during coverture, be exempt 
 from attachment, or levy of execution, for the sole debt of the husband, and no 
 conveyance, l)y such husband, of such rents, issues and profits, &c., shall be valid, 
 unless by deoil of husband and wife." The court, per Redfield, Cii. J., said: 
 "■ In regard to the effect of the statute, which is similar to thoseof some of the other 
 American States, there seems to have been, to some extent, a popular impression
 
 452 TAKING PERSONAL PROPERTY BY OFFICER. § 477- 
 
 sheriff for tlie wrongful taking and carrying away of a liorse 
 wagon and harness, claimed by the plaintiff to be held by 
 Mm as trustee for his wife, the plaintiff'' proved that he and 
 his wife were married in England, and that, at the time of 
 their marriage, it was agreed between them that whatever 
 personal property she had should remain hers ; that, after 
 marriage, they both treated it as hers ; that they subsequently 
 removed to Connecticut ; that lie had at all times allowed 
 her to have the exclusive control of it ; and that with some 
 of the avails she had bought the horse and wagon in ques- 
 tion ; it was held that the jury might properly find that the 
 equitable title to the property was in the wife.^ And in the 
 same State, where a husband allowed his wife to sell certain 
 personal property, the legal title to which was in him, to vest 
 the avails in bank stock in her own name, and take the divi- 
 dends ; and after her death, as her administrator, he sold the 
 stock, and deposited the money in the savings bank to the 
 credit of her estate, it was held that the money so deposited 
 ought to be regarded as part of her estate.^ 
 
 § 477. By the common law, the husband, by virtue of the 
 marital relation, succeeded to the ownership of the personal 
 property of the wife, and was authorized to reduce the same 
 to possession, and to retain it. In equity, the wife could 
 maintain an action against her husband for the protection of 
 her property, and to restrain him from its improper use and 
 destruction. He was also liable to account to her for her 
 separate estate received by him without her knowledge ; and 
 equity would interpose to protect her in the enjoyment of it.^ 
 Legislation in several States of the Union has, to a great ex- 
 
 that it would exempt the annual products of the wife's land from the control of 
 the husband or his creditoi's. Such was the decision of the court below, and 
 such the impression of one member of this court, at the first argument. But a 
 careful examination of the terms of the statute cannot fail, we think, to convince 
 all that the Avords used have no very marked fitness to express the yearly products 
 of land which are the joint results of labor and the use of the land." 
 
 ' Smith V. Chapell, 31 Conn. 589. - Jennings v. Davis, Ibid. 134. 
 
 ' Clancy's Rights of Married Women, 35 ; Freethy v. Freethy, 42 Barb. 641 ; 
 Devin v. Devin,"l7 How. Pr. R. 514.
 
 § 477. LIABILITY OF OFFICER IN SEIZING GOODS. 453 
 
 tent, divested tlie husband of the right to the personal prop- 
 erty of the wife, and placed it under her direct control. In 
 those States, the cases in the old reports are of little use in 
 the exposition of the existing laws regulating the marital re- 
 lations and defining the rights of married women.* In New 
 York, where the wife liv^ed with her husband on her own 
 farm, which was carried on in her name, it was held that 
 what was raised thereon, and property taken in exchange 
 therefor, could not be taken by the creditors of the hus- 
 band.^ f In the same State, in an action by a married woman 
 
 ' Gage V. Dauchy, 34 N. Y. 293. 
 
 * In Whitney v. Whitney (49 Barb. 319), which came before the court on de- 
 murrer to the complaint, it appeared that the plaintiff was the owner of consid- 
 erable property, most of which consisted of a house and lot, which had been ex- 
 changed for another parcel of real estate; that she had sold the house and lot, 
 and that a portion of the avails of the sale, in bank bills, was placed by her, upon 
 retiring to bed at night, in a pocket-book under her pillow, and was taken from 
 there by her husband, the defendant, before she arose the following morning. 
 She asked judgment against th*e defendant for the amount thus taken. Ingalls, 
 J., who held tlie special term, the order of which overruling the demurrer was 
 afterward affirmed, said: '* The act of 1S62 provides a remedy for any violation 
 of the rights of a married woman in respect to her separate propertj*. As the 
 Legislature has thus conferred upon a married woman the right to receive and hold 
 property free from the control of her husband, and the act of 1862 has provided 
 a remedy by which such right is to be protected and enforced, viz., by action in 
 her own name, the same as though sole, I am of opinion that the present action 
 can be maintained by the plaintifif." 
 
 t This was an action of trespass for taking, by virtue of an execution, certain 
 personal property, belonging to a married woman, from her farm on which she 
 resided with her husband. At the trial at the circuit, a verdict was found for 
 the plaintiff, which the general term of the Supreme Court set aside. The Court 
 of Appeals, in reversing the judgment of the general term, said: "The act of 
 1849, in respect to married women, was designed for their safety and protection 
 from the debts and contracts of the husband. It is declared that the rents, issues 
 and profits of her property shall not be subject to the disposal of the husband, 
 nor be liable for his debts, and shall continue her separate property as if she were 
 a single woman. The inquiry is naturally suggested, whether the married woman 
 loses the protection of this statute, if she permits her husband to reside with her 
 upon her own farm, and to work on it at his pleasure, assisting her in making it 
 productive, without any agreement between them as to the ownership of the 
 crops, or as to the coApensation for his labor. To my mind, the answer is ob- 
 vious. The principles of the common law, as expounded by Clancy and Roper, 
 when attempted to be applied to the rents, issues and profits of her estate, or her 
 separate property, are repealed. The demands of the husband's creditors are not 
 to l)e elevated above the rights of the wife, under this statute. Her property 
 and its income are exempted from that liability in cases free from fraud. The 
 creditor who sells or lends to a man who has not the means of making payment, 
 does so at his own hazard,' and he does not thereby make a case for construing 
 this statute with strictness against the married woman. According to the argu- 
 ment of the learned justice who delivered the opinion at the general term of the 
 Supreme Court, if the husband is permitted to reside with his wife, and sells or 
 exchanges any of the property which is the produce of her farm, or the offspring
 
 454 TAKING PERSONAL PROPERTY BY OFFICER. § 477. 
 
 against a sheriff for wrongfully seizing, on an execution 
 against her husband, a quantity of hay and two cows, which 
 she claimed as her separate property, the court permitted the 
 plaintiff to prove, in order to show that she was the owner 
 of the hay, that the farm was in reality her property at the 
 time the levy was made, and that the deed was given to her 
 husband by mistake. The plaintiff testified that the first 
 knowledge she had of the mistake in the deed was derived 
 from the defendant at the time he made the levy. She then 
 told the defendant that she owned the farm and the hay and 
 cows. After the levy was made, and before the hay and 
 cows were sold, the mistake in the deed was rectified by the 
 husband's conveying the farm to a third person, who recon- 
 veyed it to the plaintiff'. The juiy were instructed to give 
 the defendant the benefit of the labor of the husband of the 
 plaintiff, so far as it increased the value of the hay. The 
 cows were bought on credit. A note was given for them by 
 
 of her live stock, without the express authority of the wife, it is to be deemed a 
 gift or dedication to the husband of the articles sold or exchanged. This ruling 
 maintains the ancient doctrine in respect to the personal estate of the wife, which 
 has been permitted voluntarily on her part to come to the possession of her hus- 
 band. Such a rule can be maintained only upon a narrow and strict construction 
 of the statute. The fault of such a construction is, that it permits the mischief 
 to remain which the statute was designed to remedy. The income and profits of 
 her separate estate are not then free from liability for the debts of her husband. 
 It is urged, as a reason for this rule, that the labor of the husband is entitled to 
 its reward, and that, if the wife were single or unman-ied, and the husband had 
 entered upon her land and raised a crop, without any agreement constituting 
 them landlord and tenant, she could not have taken the crop, but would be en- 
 titled to recover only for the use and occupation of her land. ' Surely,' says the 
 judge, ' her relation to him as a wife does not confer greater rights than she 
 would have had as a feme sole.'' The case is speciously presented in this manner. 
 Let us state the fact a little differently. Let a stranger come upon the land 
 where the owner, a. feme sole, resided, and using her team and implements of 
 husbandry to cultivate her land; would it not be implied that he worked for 
 wages, or that he was the servant or agent of the owner ? ^ Surely, with the stat- 
 ute in her favor, her relations to the laborer, as a wife, should not deprive her of 
 the benefit of the same rule. It is not competent for husband and wife to make 
 an agreement between themselves for wages, nor for the renting of the wife's 
 land. It should not be inferred from the want of an agreement of this nature, 
 which cannot be enforced, that the wife consented that her husband should be 
 the owner of the produce of the land, or of the offspring of her live stock. The 
 argument is, that we must imply that the wife consented that the husband should 
 be the owner of the crops, &c., which were the products, in part, of his care and 
 labor. The implication establishes a rule, and effects a result that deprives the 
 wife of the rents, issues and profits (jf her property, and is subversive of the rem- 
 edy incorporated in the statute, and re-establishes the former mischief." 
 
 I
 
 § 478. LIABILITY OF OFFICER IN SEIZING GOODS. 455 
 
 the husband of the plaintiff and one Ryan. The plaintiff 
 paid the note ; but not until after the defendant had levied 
 on the cows. The court charged the jury that, " If the cows 
 were purchased at the request of the plaintiff, and as her 
 property and for her, she having subsequently paid for the 
 cows, they may have been her separate property, and she was 
 entitled to recover for them." A verdict having been found 
 for the plaintiff, the Supreme Court refused to disturb it. ^ 
 
 § 478. If the goods of a person, which are distinguishable, 
 have become intermingled with those of a debtor, without 
 fraud on the part of the owner, an officer, who seizes the 
 whole under process against the debtor, without inquiry, will 
 not be protected. Accordingly, where a debtor drove his 
 sheep into the field of one K., without K.'s consent or knowl- 
 edge, in order to prevent their being taken on execution, and 
 the officer who had the execution entered into K.'s field and 
 drove away, not only the sheep of the debtor, but some of 
 the sheep of K., it was held that, as the sheep of the debtor 
 had become mixed with the sheep of K., without his fault, 
 the officer was bound at his peril to see that he took no sheep 
 belonging to K., and that, in taking K.'s sheep, he became a 
 trespasser ah initio!^ * In an action of trespass for taking 
 and carrying away a pair of oxen, it appeared that the oxen 
 were attached with other cattle belonging to the brother of 
 the plaintiff'; that the plaintiff did not then claim these oxen, 
 but assisted in acting as keeper of the stock ; and that, after 
 
 ' Garrity v. Haynes, 53 Barb. 596. 
 
 "^ Kingsbury V. Pond, 3 N. Hamp. 511. And see Colwill v. Reeves, 2 Camp. 
 575. 
 
 * In Kingsbury v. Pond (supra), the court remarked that, if the defendant 
 had requested the plaintiff to point out the sheep which belonged to him, and he 
 hud refused, this might have made the plaintiff a party to the attempt to prevent 
 the seizure of the debtor's sheep, and might have altered the case very ma- 
 terially. 
 
 Where the attachment of goods which, without the fault of the owner, were 
 mingled with those of the debtor, was rightful and justifiable, it will be for the 
 jury to determine whether the neglect or refusal of the creditor to surrender 
 them on demand made by the owner therefor, and offer by the owner to point 
 them out, and their subsequent sale under the process, made the creditor a tres- 
 passer ab initio (Taylor v. Jones, 43 N. Hamp. 25).
 
 456 TAKING PERSONAL PROPERTY BY OFFICER. § 479. 
 
 the expiration of the attachment, and the oxen had become 
 separated from the other cattle, the officer seized them on an 
 execution against the plaintiff's brother. It was held that 
 the action might be maintained against the officer, without 
 special notice to him that the oxen were the plaintiff's prop- 
 erty, and without a previous demand.^ '^ 
 
 § 479. But- if o'oods be so intermino-led with those of 
 a debtor as not to be distino-uishable, no action will lie 
 against the attaching officer without a demand and refusal.^ 
 Accordingly, where in an action of trespass for taking sun- 
 dry articles of personal property which were attached by 
 direction of one Tibbets, it appeared that the goods, when 
 attached, were not only intermingled with those of the debtor 
 Rand, but actually marked with his name, so that in the 
 absence of the plaintifl'!, and without his identifying and 
 pointing them out, it would seem to have been impossible 
 for the officer or Tibbets to have distinguished them from 
 those of Rand ; it was held, that both the officer and Tibbets 
 were justified in attaching and holding the goods as Rand's 
 until the plaintiff claimed and identified, or offered to identify 
 
 ' Stickney v. Davis, 16 Pick. 19. 
 
 '^ Bond V. Ward, 7 Mass. 123; Sawyer v. Merrill, 6 Pick. 478; Lewis v. 
 Whittemore, 5 N. Hamp. ,364; Gilinan v. Hill, 36 lb. 311. 
 
 * In Treat v. Barber (7 Conn. 274), which was an action of trespass d^ bonis 
 asportatis, for attachinji^ and removing goods which the plaintiff claimed to own 
 by previous purchase from A. T., her fttther, evidence was introduced by the de- 
 fendant to show that, if any of the goods attached belonged hono, Jide to the 
 plaintiff, she had mingled them with her father's goods, so that she alone could 
 distinguish them; and that, at the time of the attachment, the defendant re- 
 quested her to select such goods as belonged to her; but that she refused to make 
 such selection, claiming the whole as her own. It was held that, if the plaintiff 
 fraudulently, and with the intention of frustrating the defendant's attachment, 
 had caused her goods and those of A. T. to be intermingled, so as to be insep- 
 arable by the attaching creditor, the defendant might justify the taking of them ; 
 but not if the intermingling was casual or accidental, and without any design of 
 covering the goods. The court, per Hosmer, Ch. J., said: "The specific objec- 
 tion is, that the plaintiff would not make the requested discrimination. As a 
 matter of courtesy, if she had admitted that part of tlie goods were not her prop- 
 erty, she ought to have done it ; and I think slie would be under a moral obliga- 
 tion to do so. But she claimed the whole, and probably thought she had a valid 
 title. The omission to give the requisite information was neither a fraud nor 
 the violation of any obligation by law put upon her. Under the circumstances 
 of the case, the defendants acted at their peril."
 
 § 479. LIABILITY OF OFFICER IN SEIZING GOODS. 457 
 
 and point tliem out and separate them from those of Rand.^ 
 In sucli case the owner of the goods may, after attachment, 
 identify them, give notice to the officer, and demand a re- 
 delivery, when they must be given up.^ But until the owner 
 makes a demand, and properly distinguishes them, the officer 
 is not in fault, and cannot be deemed a trespasser. In Massa- 
 chusetts, it has been held that if the owner of the goods in- 
 forms the officer that divers of the articles are claimed by 
 him, and exhibits to the officer a bill of sale containing arti- 
 cles of the same kind as those attached, the officer will be 
 justified if he select from the whole quantity in his hands 
 enough to correspond with the bill of sale, retaining the most 
 valuable.® ^' 
 
 ^ Taylor v. Jones, 42 N. Hamp. 25. 
 
 = Wellington v. Sedgwick, 12 Cal. 469; Yates v. Wormell, 60 Maine, 495. 
 
 = Shumway v. Rutter, 8 Pick. 443. 
 
 * In Parker v. Walrod, 13 Wend. 296, Parker brought an action in a jus- 
 tice's court against Walrod for taking devices and whiffletrees belonging to a 
 wagon. It was proved that the defendant, who was a constable, levied on a 
 -wagon belonging to one Godfrey by virtue of an attachment against him ; that 
 the wagon afterwards went into the custody of Parker, and that while in his 
 possession an employee of his took the devices and whiffletrees from the wagon 
 and attached thereto others belonging to Parker, and that the defendant in this 
 action afterwards repossessed himself of the wagon with the devices and 
 whiffletrees of the plaintifiF attached to it. At the trial before the justice the 
 jury found for the defendant. But the judgment of the justice was reversed by 
 the Common Pleas. The Supreme Court, in reversing the judgment of the 
 Common Pleas, said: "Trespass will not lie under the circumstances of this 
 case. The right of Walrod to take the wagon is not contested. At least the 
 plaintiff pretends to no right to the wagon, and founds his action exclusively 
 upon the taking of the whiffletrees and devices, which are conceded to have 
 been his. But "having substituted his own for those which belonged to the 
 wagon and were upon it when he took it, without the knowledge of the defend- 
 ant, the defendant was not a trespasser for taking them with the wagon. Sup- 
 pose the case put by the counsel, that Parker had taken out the linch-pins be- 
 longing to the wagon, and had substituted others for them, or had changed one 
 of the bottom boards or end boards, or had put in a new king bolt, or any other 
 change not so obvious as to attract the attention of the officer, can it be endured 
 that he should be held liable as a trespasser for taking these things thus attached 
 to the wagon by Ptlrker himself, or his servant, in their own wrong. They 
 ought to be considered as incident to the principal thing, the wagon, and having 
 a riglit to take that, the officer cannot be a trespasser for taking them. The 
 action of trover affords the party under such circumstances all the remedy which 
 he ought to have. The officer must then have notice of the claim, and upon 
 demand made can restore wliat docs not belong to him without being subjected 
 to the costs of a suit." The judgment of the Supreme Court was unanimously 
 affirmed by the Court of Errors. The chancellor said: "I have no doubt that 
 the Supreme Court was right in holding tliatif the plaintiff, or his servant, had 
 exchanged the whiffletrees and devices, "and affixed his own to the wagon with- 
 out the knowledge or consent of the constable, an action of trespass would not
 
 458 TAKING PERSONAL PROPERTY BY OFFICER. § 480. 
 
 § 480. The attachment of a chattel held in common, on a 
 process against one of the tenants in common as his sole 
 property, is not equivalent to a destruction of the chattel, so 
 as to give the other tenant tlie right to an action of trespass 
 against the attaching creditor who succeeds to the rights of 
 one of the tenants, or the officer wlio made the attachment. 
 The right of the cotenant to the possession of the property 
 would be tolled for the time being by the attachment, and 
 he could not for that reason maintain trespass.-^ "^ 
 
 lie against the latter for taking them away with the wagon unless he was aware 
 of the fact that they had been thus changed, provided he was justified in taking 
 the wagon itself. Frona the evidence before the justice, there can be no doubt 
 that the constable acted in good faith, believing that the whiffletrees and devices 
 were the same which he had originally attached with the wagon as the property of 
 Godfrey. It was the plaintiff's own fault, therefore, that this mistake occurred, 
 and if any action could be sustained against the constable without returning to 
 him the whiffletrees and devices which actually belonged to the wagon, of which 
 I have some doubt under the circumstances of this case, it must have been an 
 action of trover for refusing to return the property to the plaintiff after the con- 
 stable was informed of the mistake which had occurred." 
 
 ' Welch V. Clark, 12 Vt. 681. 
 
 * In Vermont, it was decided that if an officer attach the property of tenants 
 in common upon a writ against one, take possession of it, and hold it until the 
 issuing of an execution, and then sell the entire property, and thus divest the 
 interest of the other tenant, he does not thereby become a trespasser ai initio. 
 In Heald v. Sargeant, 15 Vt. 506, in which this was held, the court said: " lu 
 the case of Ladd v. Hill, i Vt. 164, it would seem to have been determined that 
 a sale upon execution of the entire chattel, although upon the debt of but one of 
 the tenants in common, did divest the title of the other tenant, and was, in law, 
 a conversion of his interest. Where the taking was on the execution, the sale 
 would in that view be such an abuse of the authority as would make the officer 
 a trespasser ab initio. We are now asked to extend the same rule, so as to make 
 the taking upon the original writ a trespass. The case of Melville v. Brown, 15 
 Mass. 82, as understood by the same court, in Weld v. Oliver, 21 Pick. 559, 
 would seem to be an authority to that extent. But the case as reported only 
 shows a taking on the same process on which the sale was made. It does not 
 seem to have been much considered by court or counsel, and being a mere ab- 
 stract of the point decided, cannot be much relied upon as an authority. And it 
 being a well settled point that the attachment of the whole property, aud the 
 whole proceedings under the first process were legal and regdlar, we could not 
 make the officer a trespasser for any irregulai'ity in the sale upon the execution, 
 which is a distinct matter." 
 
 Where an officer who had an execution against one of two tenants in common 
 to whom salt in a wagon belonged, seized the horses for the purpose of levying 
 on the salt, it was held that he was not a trespasser (Blevins v. Baker, 11 Ired. 
 291). 
 
 The interest of one of two joint owners of personal property may be attached 
 for his private debt, and the property may be removed by the officer, notwith- 
 standing some of the stipulations contained in an agreement between the joint 
 owners will thereby be violated. Remington et al. v. Cady, 10 Conn. 43, was 
 an action of trespass de bonis asport<itis brought by Remington and Perry against 
 a deputy sheriff. It appeared that RemingFon rented his farm to one Perry to be 
 cultivated '■'■to tJie halves,'" one-half of all the produce when fit for market to be 
 
 V 
 
 \
 
 § 481. LIABILITY OP OFFICER IN SEIZING GOODS- 459 
 
 § 481. But where an officer under an execution against one 
 of two tenants in common of goods, sells tlie entire property, 
 he becomes a trespasser, ab initio} * The officer may how- 
 ever lawfully take goods owned by tenants in common by 
 virtue of an execution against one of them, and sell the 
 interest of that one, and deliver the property to the purchaser, 
 who will become a tenant in common with the other 
 owner.^ In an early case in New Hampshire,^ it was held, 
 
 delivered at a certain place free of expense, and that Perry, having raised and 
 harvested a quantity of corn and buckwheat, the defendant attached Perry's in- 
 terest therein to secure the private debt of Perry ; that the defendant having 
 husked the corn and winnowed the buckwheat, removed one-half of each, and 
 that this action was brought while the property attached remained in the cus- 
 tody of the law, holden to" respond to the future judgment. Tiie court, in hold- 
 ing that the plaintiffs were not entitled to recover, said: "It may be readily 
 admitted that it was not in the power of the officer to sever the joint ownership 
 of this property ; that he would have been justified in removing the whole or so 
 much of it as that Perry's undivided interest in tliat which was taken would 
 have been sufficient to answer the demands against him, and that when the prop- 
 erty came to be sold on execution. Perry's undivided interest only could have 
 been disposed of. And it may be further admitted that the property might have 
 been so conducted with, or so disposed of, as to subject the officer, and those 
 concerned -with him, to this aetion. But we are not called upon to decide what 
 would have been the correct mode of proceeding under an execution, nor what 
 might have been the unlawful disposition of the property. The action, it should 
 be remembered, was brought while the suits under the attachments were still 
 pending; while the property was yet in the custody of the law, and holden to 
 respond to such judgments as might eventually be recovered. The case does not 
 rest on the ground of an unlawful disposition of the property, but upon the 
 ground of an unlawful taking. The argument upon this part of the case pro- 
 ceeds on the idea that the officer might have taken, and ought to have taken, 
 all the property, but inasmuch as he has taken a part only, he is a trespasser. 
 It is not very easy to discern the connection between the premises and the con- 
 clusion. It would seem that the power to take the whole involved a power to 
 take a part only. Nor does it vary the case that the officer undertook to do a 
 nugatory act, nor that he called the part of the property which was left Rem- 
 ington's and that which was removed Perry's. Neither the act nor the declara- 
 tions of the officer can alter the law, nor in any way affect the rights of the parties. 
 His return shows that he levied the attachments upon the undivided half of all 
 the property. He confessedly had a right to the whole under this levy. He has 
 removed only a part, and with regard to the residue has left the parties to the 
 same rights of ownership as existed before." 
 
 ' Waddell v. Cook, 2 Hill, 47; note a, lb. p. 49; Melville v. Brown, 15 
 Mass. 82; Sheppard v. Shelton, 34 Ala. 652 ; Johnson v. Evans, 7 Man. & G. 
 340; Walsh v. Adams, 3 Denio, 125; Fiero v. Betts, 2 Barb. 633. 
 
 * Lothrop V. Arnold, 25 Maine, 136. 
 
 ' Petteugill V. Bartlett, 1 N. Hamp. 87 ; referring to Heydou v. Heydon, 1 
 Salk. 392; Eddie v. Davidson, Douglass, 650; Fox v. Hanbury, Cowp. 445; Smith 
 V. Stokes, 1 East, 363. 
 
 * In White v. Morton, 22 Vt. 15, it was lield that in such a case, trover 
 might be maintained by the cotenant against the sheriff for his undivided share 
 of the property; and in Smith v. Tankersley, 20 Ala. 212, it was held that the 
 cotenant might waive the tort, and sue for the value.
 
 460 TAKING PERSONAL PROPERTY BY OFFICER. § 482. 
 
 that as the officer bad a rio;bt to seize the whole, and deliver 
 the same to the pm'chaser of the debtor's sJiare, it was 
 immaterial to the other owner whether he sold the whole, or 
 only the debtor's interest, and the sale of the whole would not 
 1)6 a trespass. But this decision was afterward overruled.^ ^ 
 
 § 482. The share of one of several copartners in the 
 goods of the firm may be attached and sold on execution 
 for his individual debt. And, as incidental to this right, the 
 officer may take possession of the goods seized, and deliver 
 the whole to the purchaser.f But if he sells the entire 
 
 ' Moulton V. Robinson, 7 Fost. 550; approving White v. Phelps, 12 N. 
 Hamp. 382. 
 
 * Mersereau v. Norton, 15 Johns. 179, was an action of trespnss brought by 
 Norton against Mersereau, in a justice's court for taking and selling a yoke of 
 cattle. It appeared that the cattle were owned by Norton and another person, 
 and that they were taken out of Norton's possession, and sold by the sheriff 
 under an attachment; that the jjlaintiff forbade the taking and also the sale, but 
 said nothing al)out owing the cattle; that the defendant was present and 
 ordered the sheriff to take them, and was also present at the sale, and directed 
 the sheriff to proceed. The jury having found a verdict for the plaintiff, the 
 question before the Supreme Court was whether a sheriff had a right under an 
 attachment to take and sell property of which the absconding debtor was only 
 a tenant in common, when that projierty was found in tlie possession of the 
 other cotenant; and it was held that he had such a right beyond doubt, there 
 being no other way to get at the interest of the one against whom the attach- 
 ment issued. The court said: "It is observable in this case, that although 
 upon the trial, it appeared that the plaintiff below and the absconding debtor 
 were tenants in common of the oxen, yet neither when they were first taken, 
 nor when they were sold, did the plaintiff allege this, or that he had any claim 
 to the property. Had a claim of property been interposed, the sheriff must 
 have summoned a jury to try the right, and the sale would have been only of 
 the interest of the absconding debtor, as in case of a sale under an execution of 
 the property of joint jiartners. The sheriff in such cases, seizes all, and not a 
 moiety of the goods sufficient to cover the debt, and sells a moiety thereof 
 undivided, and the vendee becomes tenant in common svith the other partner. 
 Although the sheriff sold the oxen as the sole property of Norton, yet no more 
 than his interest passed, and the plaintiff below became tenant in common with 
 the purchaser. The sheriff' who took the oxen, and all who aided him, and the 
 purchaser, must certainly have all the rights and interest of Norton, the abscond- 
 ing debtor; and one tenant in common of a chattel cannot maintain trover or 
 trespass against his cotenant." 
 
 t There has been some question as to what ought to be sold on an execution 
 against an individual member of a firm, whether it was the partner's joint inter- 
 est in the whole concern, subject to a final settlement, or whether it was his in- 
 terest in each particular article. It would seem that in the King's Bench 
 measures have at times been taken to secure the former only, and protect the 
 rights of the creditors or other partners in the joint concern, and hold the prop- 
 erty first liable to the joint debts; and this seems, in some measure, to have been 
 followed in Massachusetts. In the Court of Common Pleas, however, in England, 
 such course has been declined, and the parties have been directed to seek all 
 such relief in Chancery. In Reed v. Shepherdson, 2 Vt. 120, the court entirely
 
 § 483. LIABILITY OF OFFICER ^IN SEIZING GOODS. 461 
 
 property in tlie goods, it is such an abuse of his legal au- 
 thority as will make him liable as a trespasser ah initio^ and 
 an action may be maintained against him in the name of all 
 the members of the firm. With respect to such members of 
 the firm as are not parties to the execution he is a trespasser, 
 because he has sold their share of the property to pay the 
 debt of others, without any precept or authority in law 
 authorizing him so to do ; and with respect to the debtors 
 themselves, because he has sold their shares jointly with the 
 shares of others, and thereby rendered it impossible to de- 
 termine what proportion of the purchase money belongs to 
 them, and how much of it ought to be indorsed on the execu- 
 tion, and because it is their right to have their shares sold 
 separately, to the end that they may not only know the pre- 
 cise amount for which they are sold, but because the sale of 
 a larger amount of property in bulk may injuriously afi^ect 
 the price by limiting the number of bidders.-^ * 
 
 § 483. An officer, by selling the entire property in goods 
 on an execution against the mortgagor, will become a tres- 
 
 denied the adoption of any such course as a court of law. It was there holden 
 that the partnership effects could be attached on the debt of one partner, and 
 his interest sold on execution, and that such taking and sale were no trespass or 
 tortious conversion, though the concern was insolvent and he had no ultimate 
 interest on a final settlement. 
 
 In an action for the wrongful taking of personal property, all the members 
 of the plaintiff's firm, part of whom were the defendants in an attachment under 
 which the property in question was seized by the defendant, as sheriff, claimed 
 to maintain the action against the sheriff as a wrong doer, on the ground that he 
 had seized and taken into his custody, under an attachment which directed him 
 to attach and keep tlie property of two only of the three members of which the 
 partnership consisted, certain personal property that belonged to the plaintiffs 
 collectively as a partnership. It was held that the sheriff had a right under 
 the attachment to take and hold the property (Smith v. Orser, 43 Barb. 187; 
 aff'd 43 N. Y. 132). 
 
 A. and B. separately bought one-half of the stock in trade of a judgment 
 debtor, and afterward conducted the business as partners. An oQicer seized and 
 sold the property under an execution against the judgment debtor. In an action 
 of tres[)ass, l)y the partners against the officer, it was held that he was liable, 
 although one of the partners had bought in fraud of creditors (Farrel v. Colwell, 
 1 Vroom, 123). 
 
 ' Walker v. Fitts, 24 Pick. 191; Melville v. Brown, 15 Mass. 82; Waddell v. 
 Cook, 2 ilill, 47; Moore v. Pennell, 52 Maine, 162. 
 
 * Such a sale being illegal, and rendering the officer a trespasser ah initio, the 
 partners will be entitled to recover the full value of the goods sold, leaving the 
 judgment, to satisfy which the property was sold, in no part satisfied (Moore .v.. 
 Pennell, supra).
 
 462 TAKING PERSONAL PROPERTY BY OFFICER. § 484. 
 
 passer ah initio} In Wheeler v. McFarland,^ which is a 
 leading case, the plaintiff had a lien for advances made by 
 him to the judgment debtor on the property levied on by 
 the sheriff, who had notice of the facts, but who, neverthe- 
 less, proceeded to take possession of, and advertise for sale, 
 the whole of the property as belonging absolutely to the 
 debtor. It was held that, by thus acting, he rendered him- 
 self liable as a trespasser ah initio, so as to entitle the 
 plaintiff to a recovery against him in an action of replevin. 
 It is true that the lien of the plaintiff in that case was 
 created by a 2:>ledge, and not by a mortgage, but the rights 
 and interests of a mortgagee are as much entitled to protec- 
 tion as those of a pledgee. 
 
 § 484. A mere wrongful levy, without the removal of 
 the property or interfering with it in any other way, will 
 make the officer a trespasser.'^ It is enough if, by menace, 
 threat, or exercise of legal process, the owner is excluded 
 fj'om the possession and control of it. If no possession is 
 taken by an officer on an attachment, perhaps the mere re- 
 turn of an attachment would not subject the officer to an 
 action ; but if the possession and control are assumed to the 
 exclusion of the owner, the action lies.* Where an officer 
 had under his control goods levied on, though there was no 
 manual seizing of them, and was about to take them away, 
 and would have done so, but for the security given him that 
 they would be forthcoming, it was held that as he had exer- 
 cised dominion over them, he was liable.^ So, where a col- 
 lector levied on a person's goods by virtue of a warrant 
 against other parties, issued for a debt which he was under 
 no obligation to pay, threatened to remove the property, and 
 gave the owner wiitten notice that he would sell it on a 
 
 ' Frisbee v. Langworthy, 11 Wis. 375. ' 10 Wend. 318. 
 
 ' Wheeler v. McFarland, 10 Wend. 318; Allen v. Crary, lb. 349; Stewart v. 
 Wells, 6 Barb. 79 ; Connah v. Hale, 23 Wend. 462 ; Stevens v. Somerindyke, 4 
 E. D. Smith, 418; Gibbs v. Chase, 10 Mass. 125; Miller v. Baker, 1 Mete. 27; 
 Paxton V. Steckel, 2 Penn. St. R. 93 ; ante, § 422. 
 
 * Hart V. Hyde, 5 Vt. 328. ' Wintringham v. Lafoy, 7 Cowen, 735.
 
 § 484. LIABILITY OE OFFICER IN SEIZING GOODS. 463 
 
 specified day, if lie did not previously pay the demand, and 
 lie paid it when the collector was about to remove his prop- 
 erty for sale, it was held that the collector was liable in 
 trespass.^ In Robinson v. Mansfield,^ it was contended, on 
 the part of the defendants, that as the horse, wagon, and 
 harness, for the taking of which the action was brought, 
 were delivered to the plaintiff upon his receipt, and were not 
 removed, there was no asportation, and that a mere technical 
 attachment would not support the action ; that if the action 
 would lie, the damages must be nominal, as the property 
 went instantly back into the hands of the plaintiff, and he 
 liad ever since had the enjoyment of it ; and that the con- 
 tract for redelivery made no difference, it being void for 
 want of consideration, if the officer committed a trespass in 
 attaching it. It was held, however, that as the property 
 was delivered to the plaintiff on a contract to redeliver it 
 to the officer on demand, it was to be regarded as if it had 
 been delivered to a strano;er on a like contract.* 
 
 ' Wetmore v, Campbell, 2 Sandf. 341. 
 
 ' 13 Pick. 139; and see Phillips v. Hall, 8 Wend. 610. 
 
 * Where the sheriff takes the property of B. upon an execution against A., it 
 is an act done in his official capacity, within the statute of New York requiring 
 suits against sherifis and coroners for official acts to be brought within three 
 years (Dennison v. Plumb, 18 Barb. 89). In Mori is v. Van Voast, 19 Wend. 283, 
 the action was trespass. The defendant alleged the taking of the property in 
 his official capacity as sheriff, and pleaded the three years' statute of limitation. 
 It was held that the statute had no application to the case; that it applied only 
 to cases of official liability such as enable the aggrieved party to resist the official 
 bond; that if the defendant was guilty of a trespass, he could not maintain that 
 tlie liability in the case was incurred by doing an act in his official character ; 
 that the act might have been done colore but not viriute officii In Ex parte 
 Reed, 4 Hill, 572, judgment had been recovered against Hart, th^ sheriff of New 
 Y'ork, in trespass, for the seizure of the goods of Reed under afi.fa. Hart had 
 attempted to justify the seizure as sheriff. A motion was made for leave to 
 prosecute the official bond of the sheriff. It was denied upon the ground that 
 the act of Hart, for which judgment had been recovered, did not come within 
 the condition of the bond. It was held that the words could not be extended 
 beyond nonfeasance or misfeasance, in respect to acts which, by law, he is re- 
 quired to perform as sheriff; that the sureties could not be made liable for the 
 consequences of a trespass committed by the sheriff. Covven, J., said that the 
 charge of a trespass assumed that the act could not have been virtute officii, and 
 that it was no more the act of the sheriff, because done colore officii, than if he 
 had been destitute of process. In The People v. Schuyler, 5 Barb. 166, the ac- 
 tion was upcm the official bond of Schuvler as sherilT. Judgment had been 
 recovered by the relator against Schuyler, in an action of trespass for taking 
 the property of the relator. Schuyler, as sheriff, had taken xhe property of 
 Kellogg, the relator, upon an attachment against the property of one Fox.
 
 464 TAKING PERSONAL PROPERTY BY OFFICER. § 486. 
 
 § 485. An officer caunot legally stay in another's buildiug 
 to keep attaclied goods therein ; nor authorize any other 
 person to remain therein, as keeper for a longer time than is 
 reasonably necessary to enable him to remove the goods, un- 
 less he has the consent, express or implied, of the owner of 
 the building, without rendering himself liable as a tres- 
 passer.^ And where an officer, who has entered on land, in 
 order to make a levy under an execution, remains there an 
 unreasonable time, he becomes a trespasser. What is a 
 reasonable time when the facts are not disputed, is a ques- 
 tion of law.^ Five hours of daylight was held more than a 
 reasonable time to remove an attorney's desk and law books 
 of not more than two hundred dollars in value.^ 
 
 § 486. If while an officer, w^ho has a right to levy on 
 goods in a building, is engaged in removing them, exercising 
 reasonable care, he unintentionally does some small injury to 
 the building, he will not thereby become a trespasser ah 
 initio. But if he remove the goods unnecessanly, or at an 
 improper time, he will be liable. Where an officer, in at- 
 taching a lathe and other machinery in a mill, found that 
 there was a platform nailed to the sills of the lathe; that the 
 lathe could not be removed without taking the platform to 
 pieces — the design of the platform being to accommodate the 
 operator better in the use of the lathe ; and that it was also 
 necessary to take down a partition which had been put at 
 
 The New York Supreme Covrrt held that no action could be maintained upon 
 the bond ; that the act of the sheriff was to be regarded as a trespass done 
 colore officii, and not virtute officii. But the judgment was reversed by the 
 Court of Appeals, and thus the case of Ex parte Reed was, in effect, over- 
 ruled. 
 
 In Seeley v. Birdsall, 15 Johns. 267, the court remarked that there was a 
 distinction between acts done colore officii and virtute officii. That, in the former 
 case, the sheriff is not protected by the statute when the act is of such a nature 
 that his office gives him no authority to do it ; but that when, in doing an act 
 within the limits of his authority, he exercises that authority improperly, or 
 abuses the confidence which the law imposes in him, to such cases the statute 
 extends. 
 
 ' Malcolm v. Spoor, 12 Mete. 279; Rowley v. Rice, 11 lb. 337. 
 
 ^ Spoor V. Spooner, 12 Mete. 281 ; Pratt v. Farrar, 10 Allen, 519; but see Ash 
 V. Dawnay, 8 Exch. 243, and Playfair v. Musgrove, 14 M. & W. 239. 
 
 ' Williams v. Powell, 101 Mass. 467.
 
 § 487. LIABILITY OF OFFICER IN SEIZING GOODS. 4G5 
 
 one end of the lathe ; it was held that he had a right to 
 remove the platform and partition in a proper manner, if 
 found necessary, and that his omission to replace them was 
 but a non-feasance, which did not make him a trespasser ah 
 initio} But where an officer, having attached hay and grain, 
 removed them without any necessity, it was held that the 
 damao-e and waste incident to such removal must be consid- 
 ered as wantonly caused by the defendants, and that such 
 wanton and illegal use of process worked a forfeiture of the 
 protection which the process would otherwise afford; and 
 furthermore, that had there been a necessity to remove the 
 property, the doing of it at an unfit and unseasonable time, 
 when it must inevitably be exposed to great and unneces- 
 sary waste, would have been such an abuse as to render all 
 concerned in it trespassers.^^' 
 
 § 487. An officer who seizes property by authority of 
 law, must show that he has done all that is required of him 
 in order to complete and fulfil the duty imposed on him. If 
 he does not comply with the directions of the writ, and 
 keeps the goods beyond the time when, by the requirements 
 of the statute, they should have been sold ; or if he fails to 
 keep them the requisite number of days after an authorized 
 seizure ; or if the notice of sale be insufficient, or the time 
 or place of sale be unauthorized, he becomes a trespasser ah 
 initio^ The defendant cannot discharge himself of his legal 
 obligation by showing that the plaintiff had notice derived 
 
 ' FuUam v. Stearns, 30 Vfc. 443. ' Barrett v. White, 3 N. Hamp. 210. 
 
 ' Brackett v. Vining, 49 Maine, 356 ; Ordway v. Ferrin, 3 N. Hamp. 69, con- 
 tra ; Knight V. Herrin, 48 Maine. 533; Bond v. Wilder, IS Vt. 393; Hall v. 
 Ray, 40 lb. 576; Gilmorc v. Holt, 4 Pick. 258-363; Smith v. Gatea, 21 lb. 55; 
 Brightman v. GrinncU, 9 lb. 14; Adams v. Adams, 13 lb. 384; Purrington v. 
 Loring, 7 Mass. 388; Sherman v. Braman, 13 Mete. 407; Folgcr v. Hinckley, 5 
 Gush. 2G3; Carrier v. Esbaugh, 70 Penn. St. R. 239. 
 
 * In this case, a very large quantity of hay and of grain in the straw was at- 
 tached and removed from the barn forthwith. The seizure was made a little 
 after midnight, when t!ie weather wafi very unfavorable for the removal of the 
 property, and it resulted in great waste. The debtor, who resided about fifty 
 miles from the place where the attachment was made, had in his possession u 
 considerable amount of propertj', while the claims of the attaching creditor did 
 not amount to a very large sum. 
 
 Vol. I.— 30
 
 46C TAKING PERSONAL PROPERTY BY OFFICER. § 487. 
 
 from otber sources of the facts wliicli tlie statute requires to 
 be made known to him by the defendant, in writing. If it 
 were so, a verbal notice would be sufficient, and the statute 
 would be rendered inoperative and useless. The plaintiff 
 has a right to insist upon the precise notice required by law. 
 Upon it his rights and remedies may materially depend; 
 and unless he has misled the defendant and induced him to 
 omit it, the failure to give the written notice in the manner 
 required by the statute will be a fatal defect in the proceed- 
 ings, and deprive the defendant of his justification.^* In 
 Vermont, the officer was held liable as a trespasser where the 
 notice of sale of a horse seized and impounded under the 
 statute, did not mention the place where the horse was to be 
 sold. The facts of the case were as follows: Clark, being a 
 private in a militia company had neglected to appear on a 
 day appointed for parade, and was fined. An execution Avas 
 put into the hands of Balch, the orderly sergeant of the 
 
 ' ' Coffin V. Field, 7 Cush. 355 ; Sawyer v. Wilson, 61 Maine, 529. 
 
 * In Smith v. Gates, 21 Pick. 55, the defendant justified the taking and sell- 
 ing of the plaintiff's horse, on the ground that the horse was at large on the 
 highway, and the defendant, being a field driver, impounded him in the common 
 pound, and the plaintifl' neglecting to pay the forfeiture and expenses accruing 
 in consequence of the impounding, the horse was sold at public auction to dis- 
 charge the same. The proceedings in such cases, in jMassachusetts, are regulated 
 by the Revised Statutes, chs. 19 and 113 — the former authorizing the taking and 
 impounding, and the latter directing the mode of proceeding after the beasts are 
 impounded. It is incumbent on the defendant to show that all his proceedings 
 have been in entire conformity with the provisions of these statutes. Sections 
 11 and 12 of ch. 113 provide that if the sum for which any beast is impounded 
 and detained shall not be paid within fourteen days after notice is given of the 
 impounding, two appraisers shall ascertain and determine the sum due from the 
 owner of the beast, and if the sum so found to be due shall not be forthwith 
 paid, the person who impounded the beast shall cause it to be sold at auction, 
 '• first advertising the sale by posting up a notice thereof twenty-four hours before- 
 hand at some public place in the same town." In the foregoing case, it appeared 
 that the appraisement was completed at half past ten o'clock, a. m., of the 30th 
 of May; that, quarter before ten o'clock of the same day, the defendant had 
 posted up an advertisement for the sale to take place at ten o'clock, a. m., of the 
 following day. and that the horse was actually sold at ten minutes after ten 
 o'clock, A. M., on the 31st of May. The property was therefore advertised be- 
 fore the appraisement of the damages and charges, and the sale took place in 
 less than twenty-four hours after the appraisement. It was held that there had 
 been such a departure from the directions of the statute, that the proceedings 
 were void. The court remarked, that entire strictness in such cases was requi- 
 site, and it was not material whether any actual injury was sustained by this 
 omission or neglect of the defendant, that, as the defendant had failed to con- 
 form to the statute, he bad clearly made himself a trespasser ah initio, and the 
 plaintiff was entitled to recover the value of the horse so taken and sold.
 
 § 487. LIABILITY OF OFFICER IN SEIZING GOODS. 467 
 
 company, for collection, who levied on a horse belonging to 
 the delinquent, advertised the same for sale, and sold after 
 the usual time of notice. The delinquent having brought 
 his action of trespass against Balch, it appeared that after the 
 advertisement had been posted up four days it was discov- 
 ered that the place of sale had not been mentioned, and that 
 .it was then supplied by the officer. The sale which was made 
 ten days afterward, was held by a full court to be irregular^ 
 and the plaintiff recovered. Paddock, J., said : " The only 
 object in advertising pro23erty for sale is to give notice to 
 those who may wish to purchase of the time and place where 
 the same will be oifered; and without specifying both„ 
 neither the spirit nor intent of the statute is complied with. 
 The statute is to have a reasonable construction ; and if one 
 part might be dispensed with to suit one case, another part 
 might be to favor some other, and so on until the whole 
 statute would be frittered away. The time might be better 
 omitted than the place where a sale is to be made ; for, if 
 the time were omitted, one intending to purchase could em- 
 ploy another to give him notice when the article was set up; 
 but the place being omitted, he could employ no means to 
 be informed.'"^* But an improper postponement by an 
 
 ' Sutton T. Beach, 2 Vt. 43. 
 
 * Carnrick v. Myers, 14 Barb. 9, was an action brought to recover the value of a 
 pair of horses sold by the defendant, a deputy sheriff, to satisfy executions in his 
 hands. The property in question was levied on in February. In June defendant 
 offered it for sale, but after one or two bids, the plaintiff objecting to the sale on 
 the ground that the horses were exempt, the sale was postponed, and an arrange- 
 ment was made by which the plaintiff turned out the horses to be sold at a fut- 
 ure day, in case the execution should not in the mean time be paid. The horses 
 were subsequently sold by the defendant, the sale being made after sundown. 
 Held, that as a sale, by virtue of an execution, made after sunset, was void under 
 the statute, the defendant l)ecame a trespasser «/> initio. Parker, J., in deliver- 
 ing the opinion of the court, said: "I think the referee was right in holding 
 that the effect of this was, tliat the proceedings of the sheriff were void ah initio. 
 The levy was made by virtue of the execution last received by the sheriff. It 
 was not until four months afterwards, when the defendant was about to sell the 
 property, and after the plaintiff' had objected to the sale, on the ground that the 
 horses were exempt, that tlie plaintiff "turned out the property,' as the witness 
 calls it, to the sheriff". It was, in fact, nothing more than waiving a claim of 
 exemption to gain time; that is, it was giving a consent to what the defendant 
 had already done, and liad a right to do, under the last execution. I think the 
 defendant was acting under a claim of authority given by law^, and not under 
 authority gnven ijy the party. Under sucli circumstances, the abuse by the de-
 
 468 TAKING PERSONAL PROPERTY BY OFFICER. § 488. 
 
 officer, of an execution sale, will not render him liable in 
 trespass to the judgment debtor, if the postponement, in form 
 and substance, was made at the request of the debtor's 
 agent.^ 
 
 § 488. Where an officer, in taking property on execution, 
 conducts with it in a manner different from what the law di- 
 rects, he cannot protect himself under the execution, but be- 
 comes a trespasser ah ijiitio} In ISTash v. Mosher,^ Judge 
 Cowen remarked, that all the cases agree that the mere user 
 of any article in any way not necessary to its safety or preser- 
 vation, by a distrainer, makes him a trespasser ab initio, for 
 the reason that, although he took possession colorably under 
 a lawful authority, yet the subsequ ent abuse leads to the 
 presumption that he all along acted fraudulently. But in 
 
 fendant would make him a trespasser ah initio^' (citing Dumont v. Smith, 4 
 Denio, 319; Allen v. Crofoot, 5 Wend. 506). 
 
 A notice of s;ile, insufficient for want of time, is not cured by an adjourn- 
 ment of the sale, eo as to embrace the whole time required by the statute. The 
 postponement would not cure the defect in the original notice. The officer 
 "could not make a valid sale at the adjournment, which would have been in- 
 valid if made on the day adjourned from. Legality in such case cannot be 
 predicated upon illegality " (Sawyer v. Wilson, 61 Maine, 539). 
 
 An officer who sells goods under an attachment, without complying with tlie 
 requirements of the statute, becomes a trespasser ah initio, and may be sued, not- 
 withstanding the action, in which such property was attached, is still pending. 
 In Ross V. Philbrick, 39 Maine, 29, at tlie trial in the court below, the defend- 
 ant's counsel requested the judge to instruct the jury that as the property sued 
 for was lawfully attached, and that suit still pending, the plaintiff could not 
 maintain the present action ; but the judge declined so to instruct. On this 
 point, the Supreme Court, per Cutting, J., said: "It is contended that so long 
 as the process, upon which the property in controversy was attached, is pending in 
 court, the plaintifi' cannot sustain this action, because otherwise the defendant 
 might be compelled to pay twice for the same property ; to the plaintiff in the 
 first instance, and subsequently to the attaching creditor. If it be so, it is not 
 the only case where the tort-feaaor is made liable to pay double or even treble 
 damages. Consequences may be more properly the subject of consideration by 
 the party, before the fact, than by the court subsequently, in determining the 
 law. An officer, who has been guilty of a trespass from the beginning, cannot 
 invoke to his aid the process which he has abused. lie places himself in the 
 same situation he would have occupied had he seized tlie property without any 
 process, and taken it from the owner's possession. And what consequence is it 
 to the officer, or the attaching creditor, that the suit is pending when the attach- 
 ment is dissolved, and can no longer be made available to satisfy a subsequent 
 execution? " 
 
 An officer is not obliged to receive the amount of an execution and interest, 
 unless his fees are also tendered (Joslyn v. Tracy, 19 Vt. 569). 
 
 ' Wilton Manuf, Co. v, Butler, 34 Maine, 431. 
 
 ' Bond V. Wilder, 16 Vt. 393. ' 19 Wend. 431.
 
 § 488. LIABILITY OF OFFICER IN SEIZING GOODS, 4G9 
 
 order to make an officer liable as a trespasser ah initio^ for 
 using personal property attached by him, the property must 
 have been injured or used by the officer for his own benefit, 
 or for the benefit of some one other than the debtor. Paul 
 V. Slason ^ was an action of trespass for taking horses, har- 
 ness, a wagon, and other personal property. The defendant 
 justified the taking by virtue of a writ of attachment. It 
 appeared that the defendant used the plaintiffs team in re- 
 moving part of the property attached, and that he also used 
 a pitchfork, belonging to the plaintiff, for the same purpose. 
 It was held that the officer did not thereby become liable as 
 a trespasser.* And the officer, to be deemed a trespasser 
 ah initio, must have either been an actor in the oris^inal tak- 
 ing, or have made himself a party thereto by his assent before 
 or after the act. In Van Brunt v, Schenck,^ a schooner be- 
 longing to the plaintiff, was seized by Van Beureu an officer 
 of the customs, for violation of the revenue laws of the 
 United States. Whilst the vessel was lying under this 
 seizure and in the custody of the officers of government, the 
 defendant, who was also a custom house officer, applied to 
 Van Beuren for the use of the schooner to carry his, the de- 
 fendant's furniture, from his country seat, about eight miles 
 from the city of New York, to his house in the city. The 
 
 ' 23 vt. 231. 
 
 ' Anthon's N. P. 2d ed. p. 217; s. c. 11 Johns. 377; 13 lb. 414; see 4 Denio, 
 821. 
 
 * In Paul V. Slason, supra, the court said: " It is true that, by the theory of 
 the law, whenever an invasion of a right is established, though no actual dam- 
 age be shown, the law infers a damage to the owner of the property, and gives 
 nominal damages. This goes upon the ground, either that some damage is the 
 probable result of the defendant's act, or that his act would have effect to injure 
 the other's right, and would be evidence in future in favor of the wrong-doer. 
 This last, applies more particularly to unlawful entries upon real property, and 
 to disturbance of incorporeal rights, when the unlawful act might have an effect 
 upon the right of the party, and be evidence in favor of the wrong-doer, if his 
 rights ever came in question. In these cases, an action may be supported, though 
 there be no actual damage done — because othertvise, the party might lose his 
 right. So too, whenever any one wantonly invades another's rights for the pur- 
 pose of injury, an action will lie, though no actual damage be done. The law 
 presumes damage on account of the unlawful intent. But it is believed that no 
 case can be found where damages have beeu given for a trespass to personal 
 property, when no unlawful intent, or disturbance of a right or possession, is 
 shown, and when, not only all probable, but all possible damage is e.xpressly 
 disproved."
 
 470 TAKING PEESONAL PROPERTY BY OFFICER. § 488. 
 
 defendant accordingly transported bis furniture in the vessel 
 as specified, and employed her in plying between the two 
 stations about two days, and then returned her to the custody 
 of Van Beuren. The schooner being libeled and sold by 
 order of the court, was afterwards, on the hearing, acquitted, 
 the judgment of the court being accompanied with a certifi- 
 <iate of probable cause of seizure ; and the proceeds of sale 
 were ordered to be paid over to the owner who, however, 
 declined to receive them. The present was an action of tres- 
 pass for the use by the defendant of the schooner, as above. 
 There was nothing which implicated the defendant as an act- 
 or in the seizure of the vessel, or w^hich showed the least co- 
 operation by him in that act, any further than the circum- 
 stance that he was one of the custom house officers. It was 
 ruled at the cu'cuit that the improper use of the vessel, while 
 under seizure and in the custody of the officers of the govern- 
 ment, rendered the defendant liable for the original seizure, 
 and made him a trespasser ab initio^ and subjected hiiu to 
 damages to the value of the vessel at the time of her seizure. 
 The Supreme Court, how^ever, granted a new trial on the 
 ground that, as the defendant was not implicated in the first 
 taking^, the rulino^ at the circuit was erroneous. At the 
 second trial, it aj^peared that the seizure was ratified by the 
 defendant, and the court, in nonsuiting the plaintiif, held 
 that the defendant would have been a trespasser ah initio^ if 
 there had not been a certificate of probable cause ; but that, 
 under the circumstances, the plaintift^'s remedy was by special 
 action on the case.* 
 
 * In Van Brunt v. Schenck, supra, Thompson, Ch. J., placed the decision of 
 the Supreme Court entirely upon the legal effect of the certificate of reasonable 
 cause of seizure, given on the acquittal of the vessel, holding that, independently 
 of this certificate, the case would have fallen within the rule that the abuse of 
 an authority given by law makes the abuser a trespasser ab initio. The act of 
 Congress (of March 2d, 1799), declares that, where there is a certificate of rea- 
 sonable cause of seizure, the person who made the seizure, or the prosecutor, 
 shall not be liable to action, suit, or judgment, on account of such seizure. This 
 certificate does not shield the person making the seizure from responsibility for 
 damages which may be occasioned by any subsequent abuse of his authority. It 
 only goes to protect him from an action on account of the seizure — that is, if 
 there was reasonable cause for the seizure, tlie person making it shall not for 
 such act be deemed iu any manner responsible. But to make the defendant a
 
 § 489. LIABILITY OF OFFICER IN SEIZING GOODS. 471 
 
 § 489. An attaclimeDt of personal property may be justi- 
 fied without showing regular subsequent proceedings. But 
 
 trespasser ab initio, would be making him responsible for the act of seizure for 
 which the statute declares he shall not be answerable. This construction gives 
 full force and etfect to the certificate of reasonable cause, and still makes the 
 seizing officers liable for all injury occasioned by an abuse of their authority. 
 Any other construction renders the certificate a nullity. The seizing officer is, 
 by the certificate, put in tlie situation of a person who is guilty of an abuse of 
 an authority in fact, who does not thereby become a trespasser ab initio, but is 
 liable to make satisfaction to the owner of the property for the abuse of his 
 authority. 
 
 The following are the material portions of the opinion of Spencer, J., in the 
 above case: "It is insisted that, the schooner being in the custody of the law, 
 the use or abuse of her by the defendant, though with the license of the officer 
 who took her, rendered the defendant and all concerned trespassers ab initio, 
 and that therefore the plaintiff can maintain trespass against the defendant. 
 This point is not defensible unless the defendant is implicated in the first taking, 
 and that he is not, the facts plainly show. * * * it would be palpably ab- 
 surd to say that a man, totally unconcerned with the original caption of goods, 
 shall, for an after act to those goods, be deemed to have originally taken them. 
 Still, however, it is contended that VanBeuren, havingnoright to use the vessel, 
 could impart none; and the plaintift's, having the general property, possession 
 followed it, and that both uniting they could maintain trespass against the de- 
 fendant, and more especially, as the defendant knew the vessel was under seizure 
 when the defendant took the vessel, the plaintifls were clearly dispossessed of 
 her. Nor had they then a right to reduce her to actual possession ; for she Jiad 
 been seized under the authority of the law, and was then in the custody of the 
 law, adversely to the plaintiff's claim of property. Still, however, it is urged 
 that Van Beuren was at all events a trespasser ab initio, by his licensing the de- 
 fendant to use the vessel, and that this act re-invested the plaintift's with their 
 first right of property, and also the right to reduce the vessel to their immediate 
 possession. It seems to have been forgotten by the counsel who urged this ar- 
 gument, that Van Beuren's giving leave to the defendant to take the vessel, is 
 not an act which would even render him a trespasser ab initio. It was the act of 
 taking her and using her which alone could produce that effect; and not until 
 after the commission of that act, would Van Beuren have violated the authority 
 given him by law to seize and hold the vessel. The act of taking and using the 
 vessel, is indivisible. When the defendant first entered on it, it must be ad- 
 mitted the plaintiffs had neither the possession nor the right to reduce the ves- 
 sel to their possession, and therefore at that time ihey had no right to bring 
 trespass. To maintain that trespass would lie against the defendant, the counsel 
 must be driven to the necessity of splitting up the defendant's act and making 
 him a trespasser, not for entering on board the vessel and casting oflf her fasts, 
 but for sailing in her. This mode, of considering and treating the action may 
 well be pronounced an anomaly in the law of trespass, without precedent and 
 without authority. Tlie true and only test is to consider whether, when the first 
 act was done which consists of a series of acts, the defendant was guilty of 
 trespass "toward the plaintift's. If he was not, then he cannot in this case be so 
 afterward." 
 
 Van Ness, .J., delivered a dissenting opinion, in which Piatt, J., concurred, 
 the substance of wiiich, omitting the cases cited, and quotations therefrom, was 
 as follows: *' Whether this suit can be maintained strictly on the principle that 
 the defendant is a trespasser by relation, it is not material to inquire, because I 
 think he is liable in this form of action on another ground. It has long been 
 well settled that actual possession is not necessary to enable the owner to main- 
 tain trespass or trover as it respects personal property. The plaintiffs in this 
 case were the undisputed owners of the schooner until she was unlawfully seized 
 by Van Beuren. I say unlawfully, because, as she was acquitted in the District
 
 472 TAKING PERSONAL PROPERTY BY OFFICER. § 489. 
 
 the subsequent unlawful disposal of the property will de- 
 prive the officer and attorney of justifying the original 
 taking under valid process, and cause them to be regarded 
 as standing in the position of strangers.^ * Although an 
 
 Court, were it not for the certificate of probable cause, Van Beuren might liave 
 been prosecuted as a trespasser for the original taking. This certificate, how- 
 ever, can in no way protect either Van Beuren or the defendant against an ac- 
 tion for their illegal use of the vessel after the seizure. That Van Beuren became 
 a trespasser from that moment, ab initio^ is not questioned. The cases cited on 
 the argument are decisive on that point. The certificate of probable cause would 
 afford him no protection against an action of trespass founded upon the abuse of 
 his authority. From the moment therefore Van Beuren lent this vessel to the 
 defendant, his official character was lost, and he is to be treated like any other 
 private individual who wantonly and illegally v/rests from another his property. 
 The vessel ceased to be in the custody of the law after Van Beuren had parted 
 with her to the defendant, for a purpose utterly repugnant to his duty as a \)\ih' 
 lie officer, and by which he confessedly became as much a trespasser as if he had 
 acted without any authority or license from the beginning. While this vessel was 
 in the employment of the defendant, he held her by wrong, and the plaintifiis had 
 a clear and incontestable right to resume the possession of her, if they were dis- 
 posed to exert it, wherever they found her. This right results as a direct and 
 necessary consequence of that principle of law by which Van Beuren is deemed 
 to be a trespasser ab initio. He stands in the same situation as if he had acted 
 without any authority. Like every other trespasser, his possession was tortious ; 
 and the owner might, at his election, either have aflSrmed the possession and 
 property in him, by bringing an action of trespass, or he might have brought 
 replevin to have the thing restored to him and recover his damages for the first 
 taking. A moment's consideration will show that, if the plaintiffs were en- 
 titled to the possession as between them and Van Beuren, they are equally so as 
 between them and the defendant. * * * * If the plaintiffs could have taken 
 her from Van Beuren after he became a trespasser, does it not follow that they 
 had the same power after she came into the hands of the defendant, in conse- 
 quence of an act flagrantly illegal to which both he and Van Beuren were 
 parties ? It seems to be admitted that the defendant is bound in some form of 
 action to compensate the plaintiffs for the use of the vessel. Does not this 
 demonstrate his possession of her to have been tortious and illegal ? And here 
 it is material to observe that if a person is once liable as a trespasser for an il- 
 legal taking of the goods of another, he shall answer for their full value unless 
 they are restored to the owner; in which case, the restoration may be given in 
 evidence in mitigation, but not in bar of the suit. I can see no reason, therefore, 
 why the defendant as well as Van Beuren, is not liable in this form of action for 
 his illegal and unjustifiable use and emjiloyment of the vessel as a distinct and 
 independent trespass." 
 
 ' Eaton V. Cooper, 29 Vt. 444 ; Stoughton v. Mott, 25 lb. 668; Boss v. Phil- 
 brick, 39 Maine, 29 ; Everett v. Herrin, 48 lb. 537. 
 
 * In Maine, the statute, R. S. 1841, ch. 114, §64, providing that "when 
 goods are sold and disposed of after an appraisal, the proceeds thereof, whilst 
 remaining in the hands of the ofiicer, shall be liable to be further attached by 
 him as the property of the original defendant, in like manner as the goods them- 
 selves would have been liable if they had remained in the possession of the ofli- 
 cer," presupposes a sale in compliance with the statute. If it appear that the 
 sale was illegal, the oflicer will be deemed a trespasser from the beginning 
 fEverett v. Herrin, supra). 
 
 In an action for an excessive attachment, the plaintiff must allege and prove 
 much the same that he would in a suit for a malicious prosecution — that is, want
 
 § 491. LIABILITY OF OFFICER IN SEIZING GOODS. 473 
 
 officer may lawfully take possession of boxes left at a depot 
 for transportation, and open them, and separate what lie 
 chooses to attach, yet he must exercise his authority in a 
 reasonable manner. If he remove boxes unnecessarily, or 
 take therefrom property which is exempt from attachment, 
 he will be liable as a trespasser, and the owner will be 
 entitled to recover for the damage sustained by the removal 
 of the boxes, and also the value of any articles actually re- 
 tained by the officer which are protected from attachment by 
 law.^ 
 
 § 490. An officer, in bidding off property, cannot law- 
 fully act as the agent of the creditor, for the reason that the 
 officer should be impartial, and that an agency for one of 
 the parties would imply an interest adverse to the other. 
 Neither can a person, in seizing personal property in the 
 possession of A., be permitted to act ostensibly in the char- 
 acter of sheriff, by virtue of an execution against A. at the 
 suit of B., and, after thus effecting his purpose, throw off his 
 official character, and aver that he took the property as be- 
 longing to C, and as the private agent of the real owner. 
 To permit this would be to expose the possession by the 
 party of a contested chattel to be changed and transferred 
 to his antagonist, by the interference of any sheriff or con- 
 stable, who, by a prostitution of his official power, and in 
 the practice of a falsehood, might choose to lend himself to 
 the execution of such a scheme.^ 
 
 § 491. Although it is a general rule that a mere non- 
 feasance will not make an officer a trespasser ah iniiio^^ yet, 
 
 of probable cause and malice express. The party, ordinarily, will be the only one 
 liable (Abbott v. Kimball, 19 Vt. 551, per Redfield, J.) 
 
 ' Peeler v. Stebbins, 26 Vt. 044. 
 
 'Knight V. Herrin, 48 Maine, 533; Payson v. Hall, 30 lb. 319; Pierce v. 
 Benjamin, 14 Pick. 356. 
 
 * Waterbury agst. Lockwood, 4 Day, 257, was an action against a tax col- 
 lector for seizing and selling a horse and other property under a warrant for the 
 non-payment of taxes. A verdict having been found for the defendant in the 
 court below, a point made, on a motion for a new trial, was that the court im- 
 properly admitted in evidence the warrant in the hands of the defendant and 
 his indorsement thereon, showing that be took the horse, &c., by virtue of the
 
 474 TAKING PERSONAL PKOPEETY BY OFFICER. § 491. 
 
 in some cases, au officer may, Iby mere nonfeasance, forfeit the 
 protection of the process under Avhicli he acts, and become 
 
 ■warrant, and advertised the same for sale, &c. To the admission of this evi- 
 dence it was objected that it aflbrded no justification, because the history of the 
 subsequent proceedings of the officer therein detailed showed such irregularity 
 of conduct and neglect of duty, attended with a loss of the property, as rendered 
 him still liable to the plaintiff's demand as a trespasser ab initio, and, of course, 
 could not avail him as a defense. The Supreme Court said: "An omission or 
 neglect of duty is not sufficient. The action of trespass cannot be supported 
 where no trespass has been committed; yet, in some cases, an act in itself law- 
 ful may, in consequence of another act, by relation, become a trespass ; but, in 
 all such cases, the subsequent act must be an act of trespass, and committed 
 before action brought. In this case no such subsequent act of trespass appears. 
 At most, the conduct of the defendant is a neglect of that care and diligence 
 which the law required of him ; and, though such neglect may make him liable 
 in a proper action, it cannot make him liable in this. There is nothing on the 
 return showing either an abuse of the power given by law to the defendant as 
 collector, nor any actual trespass by him committed on the property taken, 
 which can, by relation, make bim a trespasser from the beginning. I am, 
 therefore, cleai'ly of opinion that the warrant and return were admissible to 
 show that the taking was lawful; and that, at the date and service of the 
 plaintiff's writ, no trespass had been committed by the defendant. They 
 furnish prima facie evidence of these facts, and a justification to that time, and 
 if not rebutted, must produce a verdict in favor of the defendant." 
 
 Walker v. Lovell, 8 Fost. 138, was an action of trespass against a deputy 
 sheriff for attaching and selling certain personal property belonging to one 
 Calvin Walker, on a writ against him in favor of Hall & Co., who were creditors 
 of said Calvin for goods sold and delivered. A portion of the goods sold by 
 Hall & Co. were spirituous liquors, the sale of which was illegal. The defend- 
 ant applied the proceeds of the property in question to the satisfaction of the 
 judgment obtained by Hall & Co. against said Calvin. The amount received by 
 the defendant from the sale was more than sufficient to satisfy so much of the 
 debt and interest thereon as accrued from the other articles than the said spirit- 
 uous liquors, and all the costs of suit and fees and charges of the officer. It 
 was contended on the part of the plaintiif that inasmuch as it appeared that the 
 avails of the goods attached and sold upon the writ amounted to a greater sum 
 than the amount of the debt justly and legally due to Hall & Co., and the legal 
 costs, and that the defendant applied the entire sum of the avails realized from 
 the sale upon the execution issued upon their judgment against said Calvin, the 
 defendant thereby became a trespasser ab initio, and was answerable for the 
 entire property originally attached. It was, however, held that the action could 
 not be maintained. The court said; " The officer was undoubtedly obliged to 
 apply the money to the extent of the sum justly due and the costs of the action. 
 But if this form of action can be sustained, on the ground that the defendant is 
 a trespasser ab initio, he is answerable as for a wrong in attaching the property 
 originally, and for every other act touching it that was injurious to the plaintift'. 
 But we are of opinion that the defendant is under no such liability as a tres- 
 passer. If he is liable to the plaintiff at all, the liaiulity resting on him is only 
 that of an officer who, having sold the property of a judgment debtor, from 
 which a larger amount has been realized than is required to answer the just and 
 proper purposes of the sale, is responsible for the excess to the debtor. The 
 application of the money upon the execution was, at most, a mere exercise of an 
 erroneous judgment of the officer, in reference to liis duty and rights, and was 
 wholly unattended with anything like a wrong with force. It was no more than a 
 mere non-feasance as to this plaintiff. It was not more than the omission to pay 
 over to the plaintiff the surj^lus money remaining in his hands, after discharging 
 that portion of the execution which was justly and legally due. There was no 
 destruction or waste of the property or the money by this act of the defendant. 
 Notwithstanding the application of the money, by way of indorsement on the
 
 § 491. LIABILITY OF OFFICER IX SEIZING GOODS. 475 
 
 liable to be treated as a trespasser, althougli his conduct was 
 in the first instance lawful. Thus, it has been held that if 
 he neglect to return mesne process, he shall not be permitted 
 to use it as a justification of any act he may have done under 
 it. This principle, which may be considered as an exception 
 to the general rule, was adopted in England in very early 
 times, the ground being that if there were no return of the 
 process, it was the same in eifect as if there was no process.* * 
 But in order to render an officer liable as a trespasser for a 
 mere act of nonfeasance, he must omit to do something, 
 without which he is precluded from showing that the orig- 
 inal act of takino" was lawful.^ Russell v. Hanscomb ^ was an 
 action for taking and carrying away a seine. It appeared that 
 the defendant was a fishwardeu, and that he seized the seine 
 acting in that capacity. The defendant had the seine ap- 
 praised, without notice to the plaintiff, and without process 
 of law as required by the statute ; and it was held that such 
 neglect made him a trespasser ab initio^ and liable to an 
 action by the owner of the' net for its value. It was aijal- 
 ogous to the case of a sheriff attaching the property on 
 
 execution, in point of law, it is still in the hands of the defendant for the 
 plaintiflf's use " (citing Gates v. Gates, 15 Mass. 310 ; Abbott v. Kimball, 19 Vt. 
 551). 
 
 * Kowland v. Veale, Cowp. 18; Freeman v. Blewitt, 1 Salk. 409; Cheasley v. 
 Barnes, 10 East, 73; Jordan v. Gallup, 16 Conn. 543; Williams v. Ives, 25 lb. 
 568; Parker v Pattee, 4 N. Hamp.. 530; Barrett v. White, 3 N. Hamp. 210; 
 ante, % 353. CVUX<U:c.^^4-^ /^. (^clM-UC /4.pi^CLy. /-^/ 
 
 ''Williams v. Ives, snpra ; Stoughton v. Mott, 25 Vt. 668; Stone v. Knapp, 
 29 lb. 501 ; Gardner v. Campljell, 15 .Johns. 401 ; Ferrin v. Symonds, UN. H. 363 ; 
 Bailey v. Hall, 16 Maine, 408. 
 
 ' 15 Gray, 166. 
 
 =^ "A rule that a sheriif shall forfeit the protection of process by not return- 
 ing it can rarely have any practical application in our system of jurisprudence " 
 (Richardson, C. J., in Parker v. Pattee, supra). 
 
 We have met with no case in which it has ever been held that an officer may 
 become a trespasser ab initio merely by an omission or mistake in his return. 
 When various articles are attached, the officer may inadvertently omit to men- 
 tion a particular article, or may, by mistake, give a wrong name to an article. 
 Some articles may be released by the creditor at the request of the debtor, and 
 be on this account omitted in the return. There is no reason why, in any of 
 these cases, the officer should be treated as a trespasser. If he unlawfully con- 
 vert the goods to his own use, or suffer them to be lost, wasted, or injured, by 
 his negligence, he makes himself liable to the extent of the injury. But it seems 
 not to have been decided that an officer is liable in any shape for a mere defect 
 in his return.
 
 476 TAKING PERSONAL PROPERTY BY OFFICER. § 492. 
 
 mesne process, or seizing it on execution, and not returning 
 liis process. And where an officer, having lawfully seized 
 goods, neglected to procure a warrant within the time re- 
 quired by the statute, it was held that the detention of the 
 c:oods after that time beinsr wrono;:ful, the officer was liable.-' 
 The neglect of an officer to pay over money in his hands to 
 one entitled to it, on demand, is not only an act of non-- 
 feasance, but also of misfeasance, for w^hich the officer is 
 liable as a trespasser.^ But a statute which makes it the 
 duty of an officer who has an execution, to call at the debt- 
 or's dwelling-house for payment before levy, is merely 
 directory, and the neglect to do so does not render the levy 
 a trespass.^ ''* 
 
 § 492. According to the modern English cases, to impli- 
 cate one as a trespasser ah initio^ he mu^t do or consent 
 io some act which goes to show that the original taking was 
 
 ' Stoughton V. Mott, 13 Vt. 175; Tubbs v. Tukey, -3 Cush. 438. 
 
 " Norton v. Nye, 56 Maine, 211. 
 
 ' Dow V. Smith, 6 Vt. 519; and see Eastman v. Curtis, 4 lb. 616. 
 
 * In Dow V. Smith, si/pra, the court said : " The plaintiff insists that the per- 
 formance of this is a condition jorecedent to the officer's power to levy, and that 
 without it his levy is a trespass. Such a principle is incapable of practical adop- 
 tion. If he cannot take the property, though he finds it. until he has first been 
 to the debtor's abode, it is obvious that the jjroperty may be then entirely beyond 
 his bailiwick. Cannot property be charged in execution which the office: holds 
 on attachment until the debtor is first visited ? May an officer, holding an at- 
 tachment, take property, when one having final process cannot ? Is it to be 
 endured that an officer must see a debtor in execution escape from the county 
 because the officer has not been to the debtor's house with his execution ? For 
 it is as necessary in the latter as in the former case. But perhaps it may be 
 said that the officer might, in his return, state an excuse for not going to the 
 debtor's abode. This would compel the officer to judge of the excuse at the 
 peril of being held a trespasser if the court should not confirm his judgment, or 
 of never venturing an excuse, and hazard being answerable to the creditor. 
 The only practicable course is to treat the officer's proceedings as good ; and if 
 his disregard of this directory statute is without excuse, malicious, and produc- 
 tive of injury to the debtor, let redress be had by an action on the case therefor 
 against him. Such has been the practical construction of this statute ever since 
 its adoption. If this levy is void and a trespass, so must have been a levy on 
 land." 
 
 The refusal of an officer to take bail on me»ne process will not render him a 
 trespasser, it being a nonfeasance, not a malfeasance (Churchill v. Churchill, 12 
 Vt. 661). 
 
 When the nonfeasance is permitted or suffered by a deputy sheriff, the 
 action should be against the sheriff and not the deputy, and the creditor is not 
 liable for it unless done by his command or assent (Hale v. Huntley, 21 Vt. 147. 
 referring to Abbott v. Kimball, 19 Vt. 551).
 
 § 492. LIABILITY OF OFFICER IN SEIZING GOODS. 477 
 
 witli the purpose of putting the thing to an illegal use. 
 These decisions rest upon the avowed ground of narrowing 
 to the utmost the doctrine of making officers and others tres- 
 passers by means of some technical irregularity in the detail 
 of their duties.^ In a case in Illinois, it was said that there 
 must have been " such a wrongful act as leads to the belief 
 that the legal authority was only resorted to in order to en- 
 able the officer to obtain the means of committing the 
 wrong." ^ * Where a deputy sheriff, acting in his official 
 capacity, entered upon the close of the plaintiff and took and 
 carried away therefrom a wagon and two sleighs, the prop- 
 erty of the plaintiff, and left them in a safe and proper place, 
 and afterwards the wagon and one of the sleighs were ma- 
 liciously destroyed by some person unknown, it was held 
 that the officer did not thereby become a trespasser ah initio\ 
 nor liable as such, in trespass for the original entry. As he 
 was not guilty either of negligence, or of any forcible and 
 positive act of trespass in reference to the property attached, 
 he could not be presumed to have acted, in entering upon 
 
 ' See Hyde v. Cooper, 26 Vt. 553 ; Bean v. Hubbard, 4 Cush: 85. 
 
 ' Page V. De Puy, 40 111. 500. 
 
 * Substantially the same ground was takeu by the Supreme Court of Vermont, 
 in Stoughton v. Mott, 25 Vt. R. 668, which was au action of trespass to recover 
 the value of the plaintiff's sloop. It appeared that the vessel had been seized by 
 a United States officer for carrying contraband freight, and that tlie defendant, 
 a U. S. deputy collector, the gloop being in cliarge of U. S. soldiers under the 
 officer, assisted in unloading the sloop, and that afterward the vessel, while in 
 charge of the soldiers, was wrecked in a gale on Lake Champlain. It was held 
 that the defendant's agency in the transaction was insufficient to make him a 
 trespasser. Redfield, Ch. J., in delivering the opinion of the court, said: "I 
 have found it impossible to discover the least scintilla of evidence tending in the 
 remotest degree to implicate the defendant in any positive wrongful act. If it 
 should be assumed that he, having participated in the seizure, was bound to see 
 to it that the vessel or goods were regularly proceeded with under the act of 
 Congress, and properly taken care of in the mean time; yet the non-performance 
 of both these duties, if it be assumed that the Jaw casts them upon the defend- 
 ant, is but a mere nonfeasance, and not sufficient, according to all the cases, to 
 make the defendant a trespasser from the beginning. The plaintiff's only 
 remedy in such a case, for the destruction of his boat through want of ordinary 
 care, would be, perhaps, a special action of trespass on the case, but clearly not 
 trespass." 
 
 To make an officer a trespasser db initio, the wrongful act must be done to 
 the property itself, not to the fund realized from a legal sale (Wilson v. Seavey, 
 38 Vt. 331)'. 
 
 Trespass cannot be maintained against a constable for merely taking too 
 much property under an execution, the remedy being trespass on the case (Jarratt 
 V. Gwathmey, 5 Blackf. 337).
 
 478 TAKING PERSONAL PROPERTY BY OFFICER. § 493. 
 
 the close of the plaintiff, without authority, and in his own 
 wrong.^ 
 
 S 493. The s^eneral rule is, that he who at first acts with 
 propriety under an authority or license given by law, and 
 afterward abuses it, shall be considered a trespasser from the 
 beo-innino-. The reason of the rule seems to be, that it would 
 be contrary to sound public policy to permit a man to justify 
 himself under a license or authority allowed him by law 
 after he had abused the license or authority thus allowed 
 him, and used it for improper purposes. The presumption 
 of law is, that he who thus abuses such an authority assumed 
 the exercise of it in the first place for the purpose of abusing 
 it. The abuse is, therefore, very justly held to be a forfeiture 
 of all the protection which the law would otherwise give.'^ 
 The Six Carpenters' Case^ recognizes a distinction between 
 the actual and positive abuse of a thing taken originally by 
 authority of law and a mere nonfeasance, such as a refusal to 
 deliver an article distrained." It has never been doubted 
 
 ' Ferrin v. Symonds, 11 N. Hamp. 3G3. 
 
 ' Hopkins v. Hopkins, 10 Johns. 369; Gardner v. Campbell, 15 lb. 401. 
 
 ' 8 Co. 14G. 
 
 * Different reasons have been given for the distinction between the conse- 
 quences of an abuse of an authority in law and the abuse of an authority in fact. 
 What is offered in the Six Carpenters' Case as a reason for the distinction is 
 hardly more than a statement that such a distinction exists. In Allen v. Crofoot, 
 5 Wend. 506, Savage, C. J., intimates that it is a distinction without a difference 
 of principle. Hammond, (Ni. Pr. 59) observes that the reason given by Coke 
 "cannot be the true reason of the rule, because if the nature of the subsequent 
 act of trespass was indicative of a previous evil intent, it must be so in the in- 
 stance where it has been perpetrated in executing an authority in law, but like- 
 wise where it has been committed in fulfilling an authority in fact. The ground, 
 therefore, upon which one who has been guilty of an abuse is made a trespasser 
 (lb initio, is that of policy, and the rule was instituted to prevent an authority in 
 law being turned into an instrument of injustice and oppression." But where 
 the authority is derived from aa individual, and the authority is abused, the 
 party becomes a trespasser for the excess only ; " for the necessity and policy 
 which in the instance where an authority in law has been abused, operate to in- 
 validate the proceedings from the commencement, no longer exists " (Ham- 
 mond's Nisi Prius, 66). The foregoing distinction seems not to have been 
 extended to criminal cases (The State v. Moore, 13 N. Hamjj. 42). 
 
 The reason of this rule, and why it does not apply equally to an abuse of an 
 authority in fact, does not seem very satisfactorily explained in the books. It is 
 sometimes said that the law intends, from the subsequent tortious act, that there 
 was from the beginning a design of being guilty of an abuse of the authority. 
 At other times, it is made to rest upon the general reasonableness of the rule 
 that, where the law has given an authority it should, in order to secure such per-
 
 § 493. LIABILITY OF OFFICER IN SEIZING GOODS. 479 
 
 that if an officer have legal process to execute, and volun- 
 tarily abuse and pervert it to other purposes, lie is not only 
 a trespasser in that act, but becomes one ab initio^ and is 
 thus liable for all that he has done under the process. This 
 rule of the common law applies to all subordinate executive 
 officers, and serves to confine them within the limits of their 
 legal duties.^ Where a commissioner of streets, being legally 
 authorized to remove a shop from the street as an obstruc- 
 tion, sold fragments of it, it was held that he was thereby 
 guilty of such an abuse of his authority as rendered him a 
 trespasser ah iiiitio^ and answerable for the value of the 
 building.^ The tanning of raw hides seized as a distress, has 
 been held to make him who seized them a trespasser, because 
 they are so changed by the operation as not to be known by 
 the owner. So, likewise, where a searcher seized certain 
 stuffs and unpacked them, and placed them in the dirt, by 
 which they were injured, it was held, that although the 
 
 sons as are the objects of the authority from the abuse thereof, make everything 
 done void when it is abused, and leave the abuser in the same situation as if he 
 had done everything without any authority. But whatever may be tlie reason 
 of the rule, it is founded, in some measure, in fiction. 
 
 Where in action of replevin the defendant justifies the taking as a distress, 
 the plaintiff may reply that the defendant so abused the distress as to render 
 himself a trespasser from the beginning. In Hopkins v. Hopkins, 10 Johns. 
 369, Kent, Ch. J., delivering the opinion of the court, said: "There is no 
 reason why the general jirinciple should not apply to this action as well as to 
 trespass, that wliere a person acts under an authority or license given by law, and 
 abuses it, he shall be deemed a trespasser al initio. The party recovers his dam- 
 ages in this action as well as in trespass, and the law would be inconsistent in 
 liolding in the action of replevin that the original taking was valid, notwith- 
 standing any subsequent abuse, and awarding a return, and yet in the action of 
 trespass to punish the party for the first taking. There is no color for such a 
 distinction in the Six Carpenters' Case, 8 Co. 146, where all the law on the sub- 
 ject is fully discussed and clearly expounded. It is there declared, that ' i&the 
 owner, who distraineth for damage feasant, doth work or kill the distress, the 
 law will adjudge that he entered for that purpose, and because the act which 
 doth demonstrate the same is a trespass, he shall be a trespasser ah initio.'' But 
 the court proceed to state and illustrate the cases in which the party is not to be 
 adjudged a trespasser ah initio ; as, if a man take cattle damage feasant, and the 
 other tender sufficient amends, and he refuses to deliver them back, if he sue a 
 replevin he shall recover damages only for che detention, and not for the taking, 
 for that icas latqful.'^ The necessary inference from the language of the case is, 
 that in the first instance put the person taking and abusing the beasts would, on 
 a replevin, be deemed a trespasser from the beginning. 
 
 'Bacon's Abr. Trespass, B; Ross v. Philbrick, 39 Maine, 29; Allen v. Cro- 
 foot, 5 Wend. 506 ; Malcom v. Spoor, 12 Mete. 279. 
 
 ^ ]Mussey v. Cummings, 34 Maine, 74.
 
 480 TAKING PERSONAL PROPERTY BY OFFICER. § 494. 
 
 search was lawful, yet that the placiDg of the goods in the 
 dirt was such an abuse of his authority as to render him a 
 trespasser ah initio} An error or mistake, however, such as 
 a person of ordinary care and common intelligence might 
 commit, will not amount to an abuse. There must have 
 been such a complete departure from the line of duty, or 
 such an improper and illegal exercise of the authority to the 
 prejudice of another — such an active and wilful wrong per- 
 petrated — as will warrant the conclusion that its perpetrator 
 intended from the first to do wrong, and to use his legal 
 authority as a cover for his illegal conduct.^ The taking an 
 excessive distress, and the removal of goods taken by warrant 
 of distress to a great distance, though wrongs, are not such 
 acts as will warrant the conclusion that the persons commit- 
 ing them intended from the beginning to abuse their 
 authority, and, therefore, do not make the persons committing 
 them trespassers ah initio? But it is said that when six 
 ounces of gold and one hundred ounces of silver were taken 
 for six shillings and eight pence, it was holden to be an ex- 
 cessive distress for which the party was liable in trespass ; 
 because that appeared upon the face of it, to be excessive, 
 and because it was a distress of gold and silver, which are of 
 certain known value, and the measure of the value of other 
 things.* ^ 
 
 § 494. When a person who has authority by law to enter 
 a house to serve legal process, places there an unfit and un- 
 suitable person to keep possession of goods which he has 
 attached until be can remove them, against the remonstrance 
 of the occupant of the house, it is such an abuse of his au- 
 
 ' Rolle's Abr. 561. ' Taylor v. Jones, 43 N. Hamp. 25. 
 
 ^ Purriugton v. Loring, 7 Mass. 388. 
 
 ' 1 Burr. 590 ; Barrett v. White, 3 N. Hamp. 210, 
 
 * In Purrington v. Loring supra., ■wliich was an action of trespass for taking 
 and carrying away the goods of the plaintiff, the defendant pleaded that as a 
 deputy sheriff he, on warrants of distress against the plaintiff, duly issued and 
 delivered to him to execute, took, carried away and sold, to satisfy those war- 
 rants, the chattels mentioned in the declaration. It was admitted that the goods 
 were removed to, and advertised and sold in au adjoining town; but it was held 
 that the officer by so doing did not become a trespasser db initio.
 
 § 494. LLVBILITY OF OFFICER IN SEIZING GOODS. 481 
 
 thority as renders him liable as a trespasser ah initio. In 
 Malcom v. Spoor/ it appeared that the defendant, who was a 
 constable, entered the plaintiff's house and attached her fur- 
 niture, and that he took with him into the house, and left in 
 charge of the furniture, a man who was drunk, although the 
 plaintiff objected to the man's remaining in the house on 
 account of his intoxication. At the trial in the Court of 
 Common Pleas, the judge charged the jury that if the de- 
 fendant, under color of his process, took with him a grossly 
 intoxicated and clearly unfit person into the plaintiff's house, 
 and left him therein as keeper, it was such an abuse of his 
 authority as made him a trespasser ab initio., and that the 
 defendant was answerable for all the acts of such keeper, 
 done in pursuance of previous concert between them, or by 
 direction of the defendant. A verdict having been found for 
 the plaintiff pursuant to the foregoing instructions, the Su- 
 preme Court refused to disturb it. Where an officer places 
 personal property in charge of a third person to keej), and 
 such person uses it, the officer has been deemed a trespasser 
 ab initio .1 although done without his knowledge, the use of 
 the property being regarded as really an abuse of the pro- 
 cess as to destroy or sell it without authority.^ But in New 
 Hampshire it has been held that the conversion of goods by 
 a person with whom an officer has deposited them for safe 
 keeping, without the knowledge or assent of the officer, does 
 not make him a joint trespasser with such person.^ * 
 
 ' 12 Mete. 279. 
 
 ' Briggs V. Gleason, 29 Vt. 78; Morris v. Hyde, 8 lb. 352. 
 
 ' Barron v. Cobleigh, 11 N. Hamp. 557. 
 
 * In Briggs v. Gleason, supra, it appeared that the defendant, a deputy- 
 sheriff, attached a mare belonging to the plaintiff, put her in charge of a farmer 
 named Freeman, who worked her cruelly. The court said : "• The lirst inquiry 
 is, whether the use of the ])roperty, under the circumstances, made the officer a 
 trespasser ah iuitlo. If the use had been by tlie defendant liimself, or by his 
 express consent, or with his knowledge, and he made no effort to hinder it, it 
 has been held by this court in Lamb v. Day et al., 8 Vt. 407, that he thereljy be- 
 came a trespasser ab initio. The only difference between that case and this is, 
 that here tlie use was by the bailee of the defendant, and it does not appear 
 whether with the defehdant's knowledge or not. But we think this use must l)e 
 regarded as the act of the defendant. The bailment is not official in any such 
 sense as to excuse the defendant for the acts of the bailee. If the bailee destroy 
 
 Vol. I.— 31
 
 482 TAKING PERSONAL PROPERTY BY OFFICER. § 495. 
 
 § 495. A person against whose property and rights no 
 excess or abuse lias been committed, cannot rely on a wrong 
 or injury done to another as evidence of an original unlawful 
 act toward him, and thus convert an officer exercising a law- 
 ful authority into a trespasser ah initio. Where, therefore, 
 an officer after selling more than enough of the personal 
 property of a judgment debtor to satisfy the execution, pro- 
 ceeded to sell a mow of hay, it was held that he did not 
 thereby become liable as a trespasser ah initio to one who 
 held an unrecorded mortgage of the property.^ * 
 
 .the property, it is well settled in practice, and by the decisions of the courts, 
 that the officer is liable. And we do not see why the same rule does not apply 
 to any abuse of the property. Indeed, it has been held that, if the bailee of 
 property, under such circumstances, suffer the property to go back into the 
 hands of the debtor, the officer's lien is lost, thus making the act of such bailee 
 that of the officer. We do not intend to decide that every use of property at- 
 tached for the shortest time, and which may be, through inadvertence, or only 
 for the health of the animal, will make the officer a trespasser. But any such 
 use as is calculated to lessen the value and expose the life and health of the ani- 
 mal, and which is done understandingly and perseveringly, must be regarded as 
 an intentional misuse of the process, and is such an abuse as shows fairly enough 
 that the process is perverted to the accomplishment of other purposes than the 
 legitimate one which the process was intended to justify. To hold that the pro- 
 cess is any protection in such case is an evasion and abuse of the law. The whole 
 proceeding under the process is justly regarded as mere finesse, and the shield of 
 its protection is wholly withdrawu, and the officer stands a naked trespasser 
 from the beginning, the same precisely as if he had never had any process." 
 Where an officer places personal property which he has attached in charge of a 
 third person to keep, the officer is liable for the value of the property, and if 
 compelled to pay the whole amount of the debt he will be subrogated to the 
 right of the creditor, and may enforce the execution against the debtor (Brigga 
 V. Gleason, supra). 
 
 ' Wolcott V. Eoot, 2 Allen, 194. 
 
 * "The duty of the sheriff to inquire and determine whether the defendant 
 is an absolute owner, or has only a special and limited interest, is exactly the 
 same in the case of a mortgage as in that of a pledge or of a partnership, A 
 pledge may be a cover for fraud as well as a mortgage; the asserted partnership 
 may not exist, or may not embrace the goods in question. The sheriff, how- 
 ever, in proclaiming the fact that a title is asserted by a third person, to which 
 that of the defendant in the execution is subordinate, and in selling the property 
 subject to this claim, determines nothing as to its validity. He merely pursues 
 the course which the law judges to be necessary for the protection of riglits and 
 interests which might otherwise be sacrificed or endangered. He cannot say 
 that a mortgage duly filed is a valid security, but he cannot treat it as not exist- 
 ing. He has no right to say that it is invalid by selling the property which it 
 embraces as belonging absolutely to the judgment debtor; it is at his own peril 
 that he thus conducts the sale. As embracing a denial of the title of the mort- 
 gagee, it is an invasion of his rights for which the law gives him an appropriate 
 remedy. When the mortgage is valid, the sherift' is as much a trespasser 
 and wrong-doer as if the judgment debtor had no interest in the property" 
 (Hull V. Camley. 3 Duer, 99, Duer, J.). 
 
 Where a demand by a mortg<agee of goods upon an officer who had seized 
 
 i
 
 § 496. LIABILITY OF OFFICER IN SEIZING GOODS. 483 
 
 § 496. In certain exceptional cases, an officer is permitted 
 to seize personal proj^erty without process. Public officers 
 are not, however, at liberty to disregard the rights of an in- 
 dividual in reference to his property, unless there is a clear 
 and urgent reason therefor to subserve an important and 
 pressing public necessity. Any other rule would fail to fur- 
 nish adequate protection to the citizen against the encroach- 
 ments of superior power./ Sailly v. Smith ^ was an action of 
 trespass against the collector of customs for seizing certain dry 
 goods belonging to the plaintiff, under the authority of the 8th 
 section of the act of Congress " to interdict commercial inter- 
 course between the United States, Great Britain and France, 
 and their dependencies, and for other purposes." The goods 
 were taken by the collector, without a warrant, out of a 
 sleigh standing under an open shed ; and it was held that he 
 had a right to make the seizure and to retain the goods in 
 his custody until it could be ascertained by due course of 
 law whether or not they were forfeited. Where a custom 
 house officer took by force from under the arm of a passenger 
 landing from a vessel a portfolio containing school drawings, 
 without making any previous demand, it was held that, as 
 drawings which had not paid duty were subject to forfeiture, 
 under the statute,^ the officer was not liable in trespass ; but 
 (per Lord Denman, C. J.) that he would be liable in such 
 action to the person, unless some attempt were made to con- 
 ceal the goods.* In Allen v. Colby ,^ which was an action of 
 trespass for taking the plaintiff's wearing apparel, it ap- 
 peared that the plaintiff', having fled from the State in order 
 
 them on execution for the debt of the mortgagor was not made until ten months 
 after the sale, and no good cause shown for not making it sooner, it was held not 
 within a reasonable time so as to give the mortgagee a right of action against 
 the officer (Brackett v. Bullard, 13 Mete. 308). What is a reasonable time, on a 
 given state of facts, where there is no positive law fixing the time, is a question 
 of law (Brackett v. Bullard, Supra; citing Smith v. Newburyport Marine 
 Ins. Co., 4 Mass. 670; Johnson v. Sumner, 1 Mete. 172; Ilousatonic & Lee Banks 
 V. Martin, lb. 294; Legate v. Potter, lb. 325). 
 
 ' Hicks v. Dorn, 54 Barb. 172; s. c, 1 Lansing, 81. 
 
 "^ 11 Johns. 500. = 3 and 4 Wm. 4, c. 56. 
 
 * Do Gondouin v. Lewis, 2 P. «& D. 283; 10 Ad. & E. 117; 3 Jur. 1168. 
 
 " 47 N. Hamp. 544.
 
 484 TAKING PERSONAL PROPERTY BY OFFICER. § 497. 
 
 to avoid the military draft which had been called for by the 
 President of the United States, the defendants, who were 
 civil officers, took and detained his clothes for the purpose of 
 securing his arrest. A verdict having been found for the 
 defendants in the court below, the Supreme Court declined 
 to disturb it.* But officers wlio are emj^owered to make ar- 
 rests should not be encouraged in meddling unnecessarily 
 with the property of tbe accused. A loose rule in this re- 
 spect would be likely to lead to great abuse. 
 
 § 497. It is the right and duty of an officer charged witli 
 the execution of a warrant for grand larceny to take into liis 
 custody the property described in his warrant, if he finds it 
 on the person, or in the possession of the accused. He has 
 no power under such j)rocess to search the house or premises 
 for concealed property. For this purpose, another process is 
 necessary. But he may search the person of the alleged 
 thief, or take into custody the property, if in his possession 
 and pointed out to him as that described in the process. 
 The ends of justice demand that this power should exist, and 
 the common law and its usao:es have sanctioned its exercise 
 from time immemorial.-' f 
 
 ' Houghton V. Bachman, 47 Barb. 388. 
 
 * In Allen v. Colby, svpra^ the court said: "The conduct of the defendants, 
 in their attempts to arrest the plaintiff, is entitled to an indulgent construction. 
 They would be justified in using, and having undertaken this office for the select- 
 men of Guildhall, they would be bound to use, all reasonable means to arrest the 
 plaintiff; and for this purjiose, there can be no doubt, that in circumstances 
 which might be supposed, they would have a right to take his property. If, for 
 instance, he were meditating flight, and had a horse ready saddled to ride away 
 on, or had a boat prepared to convey him across the river in his flight, there 
 could be no question of the officer's right to take the horse or the boat to prevent 
 his escape and accomplish his arrest. Those would doubtless be stronger cases 
 than the present; but each case must be decided on its own circumstances; and 
 whether the officer acted reasonably, discreetly and in good faith, must, in cases 
 of doubt, be inferred from the circumstances, as matter of fact." 
 
 t In New York, the statute provides that "when property alleged to have 
 been stolen shall come into the custody of any constable, marshal, sheriff or other 
 person authorized to iserform the duties of any such officer, lie shall hold the 
 same subject to the order of the officers hereinafter authorized to direct the dis- 
 position thereof." " Ujion receiving satisfactory proof of the title of any owner 
 of such property, the magistrate who shall take the examination of the person 
 accused of stealing such i)roperty, may order the same to be delivered to such 
 owner on his paying the reasonable and necessary expenses incurred in the pres- 
 ervation of such property, to be certified by such magistrate, which order shall
 
 § 498. LIABILITY OF OFFICER IN SEIZING GOODS. 4^5 
 
 § 498. A seizure as prize, though wrongful, is not a 
 trespass, the tort being merged in caj^ture as prize.^ This 
 has not been doubted since the cases of Le Caux v. Eden,^ 
 and of Lindo v, Rodney.^ In the latter Buller, J., said : 
 "There is a current of authorities from the time of Queen 
 Elizabeth to the present time, all of which agree that the 
 admiralty has jurisdiction, not only of the question of prize 
 or not prize, but of all its consequences." He cites the case 
 of Rous V. Hazard, argued in 1749, and, determined by 
 Ch. J. Lee, who held, with the concurrence of the court, that 
 although for taking a ship on the high seas, trespass would 
 lie at common law, yet that when it was taken as prize, 
 though taken ^\Tongfully, though it were acquitted, and 
 though there was no color for the taking, the judge of the 
 admiralty was judge of the damages and costs, as well as of 
 the principal matter ; and if such an action were brought 
 in England, and the defendant pleaded not guilty, the plaint- 
 iff could not recover. Buller, J., gives the true reason 
 
 ■entitle such owner to demand and receive such property " (3 N. Y. Rev. Stat. 
 5th ed. p. 1041). 
 
 Under the foregoing statute, '' if the evidence adduced before the magistrate 
 satisfies him, judicially, that the property has in fact been stolen, and that the 
 claimant is the actual owner, he has authority, in his judicial capacity, to order 
 its delivery to such claimant. The law can no more subject him to an action 
 for this, than for holding the accused for trial, or any other adjudication he may 
 make in the course of the proceedings before him. It is not intended that his 
 order shall have any eftect to settle the question of title. The accused is not 
 thereby deprived of his property. He is still at liberty to take any legal steps he 
 may choose to recover the property or its possession from the person to whom it 
 is delivered, and the order of the magistrate would be no estoppel upon the ques- 
 tion of title. Its simple and only operation is to dispose of the possession of prop- 
 erty already in the custody of the law, leaving the title open to vindication by 
 any party claiming to have it. For the purpose of investigating, discovering and 
 punishing an alleged crime, the law has taken into its own custody the possession 
 of the property which is claimed to have been the subject-matter of the offense; 
 and it provides for the disposition of such custody after the prima facie establish- 
 ment of guilt by a judicial proceeding; and no action will lie against the officer 
 who is called upon to make, and does make, such adjudication. It would lead 
 to a monstrous perversion of justice if, at the close of an examination, the accused, 
 on being held for trial, could rightfully demand the delivery of the property to 
 himself at the peril of a suit against the officer who detained it. The statute lias, 
 therefore, provided that, pending the proceedings to investigate and try the al- 
 leged offense, the custody of the property alleged to be stolen shall be subject to 
 the order of a judicial tribunal" (Ilougiiton v. Bachman, 47 Barb. 388). 
 
 ' Stoughton V. Taylor, 2 Paine C. C. 655. 
 
 ' Dougl. 594. ^ lb. 613, note 1.
 
 480 TAKING PERSONAL PROPERTY BY OFFICER. § 498. 
 
 why the question of prize or no prize was solely con usable 
 in the admiralty : " Prizes are acquisitions jure hell% and the 
 jus helli is to be determined by the law of nations, and not 
 by the particular municipal law of any country." * A 
 vessel cannot be said to be captured as prize, unless the act 
 be done hona jide^ and under a commission at least 'prima 
 facie valid, and w^here the responsibility of the goverment, 
 Avhich must be settled according to the law of nations, is 
 involved. In such a case, there is great propriety in sending 
 a party to a court of admiralty jurisdiction for redress. 
 But not so where our own municipal law furnishes the rule 
 by which the claim and rights of the parties must be tested.^ 
 In trespass for taking a steam vessel, the defendant pleaded 
 that he was an admiral in the Portuguese navy, and that he 
 took the vessel as a lawful prize, which was condemned by 
 the Supreme Tribunal of Marine at Lisbon, and became 
 forfeited to the Queen of Portugal. In other pleas the 
 trespass w^as justified under the authority of the Queen of 
 Portugal, ^Vr6 helli. Replication that the defendant being a 
 natural born subject of his majesty, in contravention of the 
 foreign enlistment act,^ accepted the commission of admiral 
 without the leave and license of the King of England. It 
 was held that the pleas were a conclusive bar to the action, 
 and that the replication w^as no answ^er to the pleas.^ f 
 
 ' Hallett V. Novion, 14 Johns. 273. = 59 Geo. 3, c. 59. 
 
 ' Dobree v. Napier, 2 Hodges, 84 ; 2 Bing. N. C. 782. 
 
 * In Lindo v. Rodney, svpra^ Lord Mansfield said: "A thing being done on 
 the high seas, does not exclude the jurisdiction of the common law. For seizing, 
 stopping or taking a ship on the high sea, not as prize, an action will lie. But 
 for taking as prize, no action will lie. The nature of the question excludes, 
 not the locality. The same thing was reiterated in Smart v. Wolfe, 8 Term R. 
 344. The same doctrine was recognized by the Court of Appeals of North 
 Carolina, in Simpson v. Nadeau, Cameron & Norwood, llo, where one of the 
 points relied on arose from the conduct of the captors after the seizure ; and it 
 was contended, that by such after-conduct the defendant became a trespasser 
 ah initio. 
 
 t In another plea, the defendant averred that the plaintiff had without the 
 leave and license of his majesty, the King of England, equipped the steam 
 vessel for the service of a foreign prince, contrary to the said statute (59 Geo. 3. 
 c. 69), whereby the said vessel was forfeited to his said majesty. It was held 
 that this plea was insufficient, because it showed no autliority in the defendant 
 to seize the vessel.
 
 § 500. PERSON AUTHORIZED TO ACT OFFICIALLY. 487 
 
 6. Power and duty of person specially autliorized to act 
 
 oflicially. 
 
 § 499. The appointment of a special officer to serve 
 process, is a judicial act which can only be exercised by the 
 authority signing the process. Accordingly, where a justice 
 of the peace signed a blank warrant with a deputation 
 indorsed on it, and the deputation was afterward filled up 
 by a third person, without the direction or knowledge of 
 the justice ; and the person thus deputized served the writ by 
 attaching property ; it was held that the deputation was void, 
 and that the person thus deputed was a trespasser.^ * When 
 the action of certain officers is required to do an act, like the 
 making of a public highway, they are not competent to 
 delegate the authority to an inferior officer.^ 
 
 § 500. Where a person who is not an officer is specially 
 authorized to serve an execution, he has no authority except 
 that conferred by such deputation, and is entitled to no 
 
 ' Koss V. Fuller, 12 Vt. 265. 
 
 ' Trustees of the Village of Jordan v. Otis, 37 Barb. 50. 
 
 * In an action of trespass for taking and carrying away two horses belong- 
 ing to the plaintiff, the defendant justified as a constable under an appointment 
 of three justices, pursuant to the following statute: "If any constable chosen 
 shall refuse to serve, it shall be lawful for the inhabitants of the town to supply 
 such vacancy at a special town meeting; and if the town shall not within 15 
 days next after such refusal, choose another, it shall be lawful for any three 
 justices of the peace residing in or near such town, and they are required, by 
 warrant, under their hands and seals, to appoint every such officer which the 
 town ought to have chosen ; and every officer so appointed shall hold his office 
 for so long a time, and have the same powers, and be liable to the same penalties, 
 as if elected." It was held that the appointment made by the justices was a 
 judicial act not traversable in a collateral action, and remained valid until set 
 aside or quasiied upon certiorari (Wood v. Peake, 8 Johns. 69). By the court: 
 "It is certainly sufKcient to justify the constable. He comes to the office by an 
 appointment regular according to the forms of law, and made by a tribunal 
 having jurisdiction in the case; and he is bound to accept under a penalty. 
 He is not to inquire, at his peril, into the validity of the act. It is sufficient 
 that three justices have authority to make such appointment in the given case. 
 It would be intolerably oppressive to place the constable in the dilemma of 
 subjecting himself to a grievous penalty if he refuses, or of being prosecuted 
 for trespass if he accepts. If two justices only should appoint him, it would 
 then be a case in which no jurisdiction existed, and the appointment would be 
 null and void. The distinction in the books, is between cases where the 
 authority proceeds from a source possessing jurisdiction over the subject-matter, 
 .•ind from one that does not. The ministerial officer can justify in the one case, 
 and not in the other " (See 3 Hill, 249; 5 Denio, 412).
 
 488 TAKING PERSONAL PROPERTY BY OiFFIOER. § 501. 
 
 obedience by reason of his being in any public position. He 
 can claim nothing in this respect until he makes his authority 
 known, or until it is known to those with whom he is deal- 
 ing. When he attempts to take possession of property which 
 the owmer informs him does not belong to the judgment 
 debtor, if he would avail himself of the immunities that at- 
 tach to public officers in the execution of process, he must at 
 once make known his authority, and that he is acting under 
 it. Until he does this, the owner may treat him as a mere 
 trespasser, and protect his property against him.^ A cart- 
 man cannot, on account of his public employment, claim the 
 exemption of a ministerial officer. Where, therefore, a cart- 
 man, by the direction of several persons, took goods away 
 from a stable, in which they had been deposited by the agent 
 of the owner, it was held that he was as much a trespasser as 
 those under whose orders he acted.^ 
 
 7. Validity of acts of officer de facto. 
 
 § 501. The principle is well settled that the acts of offi- 
 cers de facto are as valid and effectual, when they concern the 
 public or the rights of third persons, as though they w^ere 
 officers de jure. An individual coming into office by color 
 of an election or appointment is an officer de facto., and his 
 acts in relation to the public or third persons are valid until 
 he is removed, although it be conceded that his election or 
 appointment was illegal. His title shall not be inquired 
 into. The mere claim to be a public officer, and the perform- 
 ance of a single or even a number of acts in that character 
 would not, perhaps, constitute an individual an officer de facto. 
 There must be some color of an election or appointment, or 
 an exercise of the office, and an acquiescence on the part of 
 the public for a length of time w^hich would afford a strong 
 presumption of at least a colorable election or appointment. 
 In Wilcox V. Smith, ^ Smith brought against Wilcox an action 
 
 ' Burton v. Wilkinson, 18 Vt. 188 ; Leach v. Francis, 41 lb. 670. 
 ' Thorp V. Burling, 11 Johns. 285. = 5 Wend. 231.
 
 § 502. LIABILITY OF SHERIFF FOR ACTS OF DEPUTY. 489 
 
 of trespass de bonis asporiatis in the Court of Common Pleas, 
 to which the defendant pleaded that he took the goods as a 
 constable under an execution issued in June, 1826, on a judg- 
 ment against Smith rendered by one Ingersoll, a justice of 
 the peace of the town of Shelby, in the county of Orleans. 
 It w^as admitted that the execution was regular on its face. 
 The town of Shelby was formerly in Genesee county, but, 
 with several other towns, was erected in 1825 into a separate 
 county called Orleans, alter which Ingersoll continued to act 
 as a justice. The plaintiff proved that four justices of the 
 peace for the town of Shelby were appointed in 1825, and 
 that Ingersoll was not one of them. Evidence offered by the 
 defendant to show that, in 1823, Ingersoll was duly sworn 
 into office as a justice of the peace of the county of Genesee, 
 was rejected. The judge charged the jury that, as it was 
 proved that Ingersoll was not appointed a justice of the 
 peace of Orleans county, the process issued by him was void, 
 and did not protect the constable ; but the judgment, which 
 was for the plaintiff, was reversed by the Supreme Court.* 
 
 8. Liability of sheriff for illegal acts of deputy. 
 
 § 502. We have seen ^ that the sheriff is liable civiliter 
 for the acts of his deputies done in the usual course of their 
 duties. The deputies are the servants of the sheriff", and all 
 are considered in law but one officer. The lialjility of the 
 sheriff as a trespasser, for the act of his deputy in taking the 
 i ~~ 
 
 ' Ante, § 50. 
 
 * In this case, the Supreme Court said: "There is no direct evidence that 
 Ingersoll came into office under color of an election. But it is shown that he 
 was an acting justice of the town of Shelby, in the county of Genesee, for at 
 least two years before the county of Orleans was erected, in April, 1825 ; and that 
 he continued to act as such justice in the same town after it became a part of 
 Orleans county, down to December, 1836. This evidence warrants the presump- 
 tion that he was elected a justice while his town was a part of the county of 
 Genesee, and that he continued to act l)y virtue of that authority in the county 
 of Orleans; and it has been judicially determined that the transfer of a town 
 from one county to another does not terminate or affect the offices or powers of 
 its magistrates. The proof on the part of the plaintiff, therefore, that Ingersoll 
 had never been appointed a justice of the county of Orleans since its organiza- 
 tion, did not, when taken in connection with the other evidence in tiic case, im- 
 peach his title to the office or rebut i\\G jjrivia facie evidence, if it is to be con- 
 sidered but 2/)'i7na facie, which had been given by the defendant."
 
 490 TAKING PERSONAL PROPERTY BY OFFICER. § 502. 
 
 goods of one person to satisfy the debt of another, upon exe- 
 cution, has uniformly been held to be law, at least ever since 
 the case of Ackworth v. Kempe,^ where the precise point 
 was expressly adjudged. In Mclntyre v. Trumbull,^ the 
 court went so far as to hold the sheriif liable where the 
 deputy took more fees, in levying an execution, than were 
 allowed by law, whether the sheriff recognized the act of the 
 deputy or not. And the liability of the sheriff for all of the 
 acts of the deputy official in their character, in executing 
 process, has been held to exist, although the sheriff did not 
 know that the deputy had the process.^ There is, however, 
 a class of cases where the plaintiff in the execution has given 
 the deputy some special directions out of the ordinary line 
 of his duty as deputy, which the deputy has followed, in 
 which it has been held that the sheriff was not liable.* 
 
 ' Dougl. 40. '' 7 Johns. 35. 
 
 ^ Grinnell v. Phillips, 1 Mass. 530; Campbell v. Phelps, 17 lb. 244; s. c. 1 
 Pick. 62; Tuttle v. Cook, 15 Wend. 274; Walden v. Davison, lb. 575; Curtis v. 
 Fay, 37 Barb. 64; The People v. Schuvler, 4 Comst. 173; Pond v. Leman, 45 
 Barb. 152; Miller v. Baker, 1 Mete. 27;"'Vanderbilt v. The Richmond Turnpike 
 Co. 2 N. Y. R. 479; Tower v. Wilson, 3 Caines, 174, co7itra. 
 
 * Where a deputy sheriff attached a horse, and delivered him for safe keeping 
 to a third person, and afterwards another deputy of the same sheriff seized the 
 horse on an execution against the same debtor, while in the custody of the bailee, 
 and sold him, though forbidden so to do by the bailee, it was held that the dep- 
 uty who made the first attachment might maintain an action of trespass for this 
 injury against the sheriff (Walker v. Foxcroft, 2 Maine, 270). Mellen, C. .J. : 
 " Another creditor, by placing his writ in the hands of the deputy who made the 
 first attachment, might have caused it to oe attached by him subject to the first 
 attachment; and perhaps, if such second writ were placed in the hands of the 
 sheriif himself, the goods might be considered as attached by him subject to the 
 prior attachment made by his deputy. Be this as it may, no act of the sheriff, 
 or any other deputy, can defeat or impair the rights of the first attaching deputy. 
 In the present action, the sheriff is not sued for his own act, but the act of one 
 of his deputies, for wliich, if wrongful, he is by law liable to the injured party, 
 and the deputy is liable over to him. The reason assigned why trespass vi et 
 armis will not lie is, that the possession of the plaintiff is the possession of the 
 sheriff; and that both being in possession, trespass will not lie by one against the 
 other. Tliis seems to be an objection more technical than true in fact, and more 
 refined than solid. Neither the special property nor the possession of the plaintiff 
 is joint or in common with the sherifl'; and if it were, that circumstance would 
 furnish an objection as fatal to an action of trover as to an action of trespass. 
 And yet, numerous cases of trover and replevin have been sustained in similar 
 circumstances" (citing 1 Chitty's PI. 66, 165). In Walker v. Foxcroft, supra, 
 Mellen, C, J., remarked that the case of Thompson v. Marsh (14 Mass. 269) was 
 in all respects exactly like the one before the court, except that the then action 
 was against the sheriff for the deputy's neglect, instead of being against the 
 deputy himself for his own neglect or wrons, and except also that in the case 
 mentioned the action was trover, and in the case at bar the action was ti'espass.
 
 § 503. LIABILITY OF SHERIFF FOR ACTS OF DEPUTY. 491 
 
 § 503. The sheriff is a trespasser for the acts of his 
 deputy, rather by fiction of Liw for the better security of the 
 party, than from analogy to the principles which constitute 
 joint trespassers generally. He neither does the act himself, 
 nor is present aiding and abetting. Nor is it done by his 
 express order. The deputy is regarded as acting under the 
 command of the law, as much as the sheriff himself would be 
 if the act were done by him. He acts upon each particular 
 precept independently of his master's orders ; and he cannot, 
 while he remains in office, be prevented by the sheriff from 
 executing any precept which comes lawfully into his hands. 
 The liability of the sheriff arises from the peculiar relation 
 which exists between him and his deputy, and is imposed by 
 law, in order that he, being always a responsible person, may 
 stand as a substitute for the deputy, when any wrongful act 
 is done. * From the foregoing consideration, it will be per- 
 ceived that the sheriff and his deputy are not to be consid- 
 ered as joint trespassers in any tort done by the latter alone,, 
 so as to subject them either to a joint action, or to give the 
 party injured a right to bring his action against one, after 
 having recovered judgment and sued out execution against 
 the other. ^ f Where however, there is personal interference 
 
 ' Campbell v. Pbelps, 1 Pick. 63 ; Moulton v. Norton, 5 Barb. 386 ; Cowen 
 & Hill's Notes, 833 ; ante, § 50. 
 
 * In California it has been held that in an action of trespass against a sheriflf 
 personally and not as sheriff, the defendant may prove that he was sheriff, and 
 that his deputy, as such, committed the trespass (Poinsett v. Taylor, 6 Cal. 78). 
 
 Where in an action of trespass against a sheriff for the act of his deputy, the 
 father of the deputy was objected to as a juror, the court in holding him compe- 
 tent, said : "It might, indeed, have been very naturally supposed that before a 
 release was executed, and while the deputy was liable to the sheriff upon his 
 bond, or while he was liable himself to an action for the alleged trespass, a bias 
 might have been created in his mind by conversations on the subject of the con- 
 troversy. But such distinctly appears from his own answer not to have been the 
 fact, and it is difficult to imagine any ground for imputing to him any desire 
 that tiie cause should result one way more than another" (Seavy v. Dearborn, 19 
 N. Hamp. 351). 
 
 A judgment for tlie defendant, in an action against a sheriff's deputj', may be 
 given in evidence \>y the sheriff in an action afterward brought against him for 
 the same matter (King v. Chase, 15 N. Ilamp. 9). 
 
 t The injured party may, at his election, bring his action directly against the 
 deputy or against the sheriff, and may, in the latter case, charge the wrong gen- 
 erally as committed l)y the sheriff, and on the trial prove it to have been com- 
 mitted by the deputy, for whose act he is answerable; or, he may in his action.
 
 492 TAKIKG PERSONAL PROPERTY BY OFFICER. § 504. 
 
 on the part of the sheriff, he and his deputy are liable as 
 joint trespassers, independently of the official relation exist- 
 ing between them. ^ 
 
 1). Liability of assessors of taxes. 
 
 § 504. Formerly in Massachusetts, when property was 
 seized for a tax illegally assessed, an action of trespass would 
 lie against the assessors.^ In Stetson v. Kempton,^ which 
 was an action of trespass against assessors for an illegal 
 assessment, whereby the j)laintiff's carriage and harness were 
 taken and sold, one of the defenses relied upon was, that as 
 the defendants were authorized to make the assessments by 
 vote of the town, they were mere servants or ministerial 
 officers, and ought not to be liable to an action for the per- 
 formance of an official duty. The court said that the assess- 
 ors were not obliged to assess an illegal tax ; that they were 
 at liberty to exercise their judgment on the subjects for 
 which the money appeared to be voted, and might refuse to 
 cause the collection to be enforced if they deemed the tax 
 illegal ; that if they were not liable to an action, it would be 
 difficult to find a remedy ; that the constable or collector was 
 not answerable, because he acted in obedience to a warrant 
 under the hands and seals of the assessors, who had jurisdic- 
 tion over the subject, and authority to assess a tax, and to 
 issue their warrant ; that if an action would lie against the 
 town, it could only be for the money actually received into 
 the treasury, which in most cases would be but a partial 
 remedy ; and that the assessors must be answerable, or there 
 would be a defect of justice. * 
 
 against the sheriff declare specially, alleging the wrong to have been committed 
 by the deputy (Walker v. Foxcroft, 3 Maine, 270; Walker v. Haskell, 11 Mass. 
 177; Nye V. Smith, lb. 188; Draper v. Arnold, 13 lb. 449; Train v. Wellington, 
 lb. 495 ; Campbell v. Phelps. 17 lb. 244). 
 
 ' Waterbury agst. Westervelt, 9 N. Y. 598. 
 
 * Agry V. Young, 11 Mass. 220; Inglee v. Bosworth, 5 Pick. 498. 
 ' 13 Mass. 273. 
 
 * In Stetson v. Kempton, svjwa., the tax was voted by the town to raise 
 money to repel a threatened invasion during the war between the United States 
 and Great Britain. At a meeting of the inhabitants of the town it was voted
 
 § 505. LIABILITY OF ASSESSORS OF TAXES. 495 
 
 § 505. The liability of assessors of taxes as trespassers 
 was held, in Massachusetts, to apply to a case where war- 
 rants were issued by assessors for several taxes, some of 
 which were illegal, and the officer siezed and sold more goods 
 than were required to pay the taxes which were legal.^ * In 
 
 unanimously to raise the tax; but the plaintiff was not present at the meeting. 
 Towns, in relation to their power to raise money and cause it to be assessed and 
 collected, are restricted by the statute of Massachusetts of 1785, ch. 75, to " pro- 
 viding for the poor, for schools, for the support of public worship, and other 
 necessary charges." The tax which was exacted of the plaintiff, must come 
 within the last clause, or it could not be supported. The Supreme Court, in 
 holding that the assessment was illegal, and the plaintiff therefore entitled to 
 recover, said: "The phrase '■■necessary charges^ is indeed general; but the very 
 generality of the expression shows that it must have a reasona)>le limitation. 
 For none will suppose that under this form of expression, every tax would be 
 legal which the town should choose to sanction. The proper construction of the 
 terms must be, 'that in addition to the money to be raised for the poor, schools,, 
 etc., towns might raise such suras as should be necessary to meet the ordinary 
 expenses of the year; such as the payment of such municipal officers as they 
 should be obliged to employ, the support and defense of such actions as they 
 might be parties to, and the expenses they would incur in performing such du- 
 ties as the laws imposed — as the erection of powder houses, providing ammuni- 
 tion, making and repairing highways and town roads, and other things of a like 
 nature ; which are necessary charges, because the effect of a legal discharge of 
 their corporate duty. The erection of public buildings for the accommodation 
 of the inhabitants, such as town houses to assemble in, and market houses for 
 the sale of provisions, may also be a proper town charge, and may come within 
 the fair meaning of the term necessary ; for these may be essential to the comfort 
 and convenience of the citizens. But it cannot be supposed that the building of 
 a theater, a circus, or any other place of mere amusement, at the expense of the 
 town, could be justified under the term necessary town charges. Nor could the 
 inhabitants be lawfully taxed for the purpose of raising a statue or a monument, 
 these being matters of taste and not of necessity ; unless in populous and wealthy 
 towns they should be thought suitable ornaments to buildings or squares, the 
 raising and maintenance of which are within the duty and care of the governors 
 or officers of such towns. With respect to the defense of any town against the 
 incursions of an enemy in time of war, it is difiicult to see any principle upon 
 which that can become a necessary town charge. It is not a corporate duty to 
 defend a town against an enemy. This is properly the duty of the State or gov- 
 ernment, and is the most essential consideration for the obligation of the citizen 
 to contribute to the general treasury. The government is to protect, and the 
 citizen is to pay. By the Constitution of the United States, this duty is devolved 
 upon the national government ; and although it may be impracticable, in so ex- 
 tensive a territory, to furnish competent security to every section or point, yet it 
 does not follow that corporations of limited powers like towns, can take upon 
 themselves the duty, and exact money of their citizens for the execution of it. 
 It cannot be pretended that a town could lawfully tax the inhabitants to raise 
 and maintain a military force for their protection against an enemy. Such a 
 protection, it is obvious, can only be lawfully given by the State, or ruling 
 power; and if that is not adecpiate, the voluntary exertions or contributions of 
 the inhabitants must supply the deficiency." 
 
 ' Libby v. Burnham, 15 Mass. 144. 
 
 * In tills case the court said: "If no more property had been taken than was 
 sufficient to satisfy the legal tax, then, perhaps, trespass would not lie, altliough 
 the warrants for the other taxes had been used at the same time in taking the
 
 494 TAKING PERSONAL PROPERTY BY OFFICER. § 505. 
 
 Stetson V. Kempton/j it was objected that as part of the 
 money composing the tax was raised for legal purposes, the 
 assessment must be considered so far legal as to support the 
 warrant issued by the defendants ; otherwise they would be 
 held to pay in damages for money which lawfully belonged 
 to the town. The court, however, remarked that when a 
 part of a tax was illegal, all the proceedings to collect it 
 must be void, as it was impossible to separate and distin- 
 guish, so that an act should be in part a trespass and in part 
 innocent; but that whether the damages might not be 
 diminished in proportion to the sum which should appear to 
 be a lawful subject of taxation, might be considered in the 
 inquiry which was still to be had by the jury. In Vermont, 
 where legal taxes were blended and incorporated with an 
 
 property. But here the property was avowedly taken as sufficient to satisfy all 
 the warrants, and it was sold under the authority of all. If there was no tres- 
 pass in the original taking, on account of the legal warrant, yet the proceeding 
 to sell under all was an abuse of authority, and renders those who commanded 
 the act liable, as trespassers, for the whole. If the property taken had been 
 an individual article, in its nature not separable, although of more value, per- 
 haps trespass could not have been maintained. But here two oxen were taken, 
 and they were palpably more than ought to have been taken to satisfy the legal 
 warrant. The collector must, therefore, have acted under a void authority in 
 seizing the oxen ; and the defendants, having commanded that act, are charge- 
 able in this action. When the property of a man is taken without lawful au- 
 thority, he has a right to the value of that property, at the least in damages. A 
 tax is no debt untitit is assessed and demanded; and if not legally assessed, it 
 is the same as if never assessed at all. So that to reduce the damages on the 
 ground that the plaintiff owed a part of the money claimed from him, would be 
 unauthorized by legal principles. What, then, is to be done when assessors 
 have neglected their duty or gone beyond their authority ? Is the whole tax to 
 be lost ? There is no need of this. The tax may be reassessed, or the town may 
 renew their vote to raise the money. And it is better that they should suffer 
 this inconvenience than that the property of the citizen should be taken from 
 him to satisfy arbitrary exactions, limited by no rule but the will of assessors." 
 Where the assessors of a religious society illegally assessed a tax on a person 
 who was not a member of the society, it was held that an action of trespass 
 might be maintained against them therefor (Gage v. Currier, 4 Pick. 399). 
 
 In Bangs v. Snow et al. 1 Mass. 181, a question arose as to the power of a 
 parish to raise by vote a sum of money, and assess it upon the inhabitants, for 
 the purpose of defraying the expense of procuring an act of incorporation. 
 The court were unanimously of the opinion that the parish had no such 
 authority, and refused to hear an argument, saying it was questioning first 
 principles ; for that a parish had power, by statute, to raise money only for the 
 purposes expressed by law, and for expenses incident to such purposes. The 
 same doctrine was recognized in a subsequent decision (5 Mass. 547), wherein 
 it was held that the power of raising money in towns and parishes was limited 
 by statute to the objects expressly provided for, and such expenses as are neces- 
 sarily incident. 
 
 ' 13 Mass. 272.
 
 § 506. LIABILITY OF ASSESSORS OF TAXES. 495 
 
 illegal tax assessed by the selectmen of a town, under a vote 
 of the town, it was held that the whole were uncollectable, 
 and that the selectmen were liable for the full value of the 
 property siezed and sold, without deduction for the legal 
 portion of the taxes. The court remarked that had the 
 illegal portion of the tax been laid and assessed as a distinct 
 tax, there would have been no difficulty in enforcing other 
 taxes lawfully laid. But the tax laid for an object not 
 within the corporate purposes or powers of the town, and 
 which the corporation could not legally impose, being blended 
 in the outset, by the vote creating it, with taxes for legiti- 
 mate purposes, and so assessed, it was impossible for the 
 court to discriminate between that portion of the tax which 
 could be legally laid and that which could not. Hence, the 
 whole proceeding was declared void, and the whole matter 
 rested where it would have done had no vote been taken 
 imposing a tax for any purpose.^ In New York, assessors 
 are within the protection accorded to those who act judi- 
 cially, and are not personally liable for errors or mistakes in 
 the assessment of property, when they have jurisdiction and 
 act within the scope of their authority. But their power, 
 which is limited and special, must be strictly pursued. 
 When they exceed it, they are civilly liable to any person 
 injured thereby. An assessment of a person over whom 
 they had no jurisdiction, or after their power as assessors 
 had ceased, would be a wrongful act, for which they would 
 be responsible in damages to the injured party.^ 
 
 § 506. By the statute of Massachusetts of 1823,^ towns 
 are made liable for illegal taxes assessed and collected by 
 their order. But this statute, which exempts assessors from 
 all responsibility for the assessment of any tax upon the 
 inhabitants of any city, town, district, parish, or other re- 
 ligious society, when thereto required by the constituted 
 
 ' Drew V. Davis, 10 Vt. 506. 
 
 ' Clark V. Norton, 49 N. Y. 343 ; s. c. 3 Lans, 484 ; Westfall v. Preston, 49 
 N. Y. 349. 
 
 ' Ch. 138.
 
 496 TAKING PERSONAL PROPERTY BY OFFICER. § 507. 
 
 authorities thereof, except only for their own integrity and 
 fidelity, does not embrace school districts.^ In Taft v. Met- 
 calf,^ whicli was an action of trespass against the clerk of a 
 school district, it was argued that the assessors were merely 
 ministerial officers, like the collector, and so w^ere bound to 
 assess the tax upon receiving the clerk's certificate. But the 
 court remarked that this ground was not tenable ; that as- 
 sessors were at liberty to exercise their own judgment upon 
 the legality and regularity of the proceedings, and were 
 therefore not obliged to assess an illegal tax."^ In Rhode 
 Island, trustees of a school district w^ere held to be trespass- 
 ers in illegally assessing a school tax w^hich, under their 
 warrant, was levied upon the property of the plaintiff.^ 
 And the same ^vas held in Xew Hampshire, in relation to a 
 militia caj^tain who issued a warrant for the collection of an 
 illegal fine.* f 
 
 § 507. In Connecticut, where the selectmen of a town 
 make out an illegal rate bill and cause a warrant to be issued 
 thereon, they are liable as trespassers to those whose prop- 
 erty is taken under the warrant. ^ And in New Hampshire, 
 where selectmen taxed an individual who had caused an in- 
 
 ' Little V. Merrill, 10 Pick. 543. " 11 Pick. 456. 
 
 ^ Crandall v. James, 6 R. I. 144. ^ Youug v. Hyde, 14 jS". Hamp. 35. 
 
 ^ Thames Manf. Co. v. Lathrop, 7 Conn. 550. 
 
 * The power given to towns by the statute (of Massachusetts of 1789, ch. 19, 
 § 2) to determine and define the limits of school districts can be executed only 
 by a geographical division of the town for that purpose, and where it is not done, 
 the assessment and collection of the school district tax will be unlawful, and the 
 assessor liable as a trespasser. In Withington v. Eveleth, 7 Pick. 106, the com- 
 mittee appointed by authority of the town to determine and define the limits of 
 the districts ran no lines and established no boundaries, but merely mentioned 
 and descriljed the persons of whom the district was composed. They probably 
 intended that the lands occupied by these persons should be included within the 
 district, but their intention was not matter of record, and according to the terms 
 of their report, their limitation was merely personal, and the district would fluc- 
 tuate with the change of residence of the persons mentioned. 
 
 t la Henry v. Sargeant, 13 N. Hamp. 321, the suit was brought against the de- 
 fendants as selectmen. It was an action on tlie case for the illegal assessment of 
 a tax, the plaintiff" having been arrested and imprisoned, and subsequently pay- 
 ing the tax. It was objected that the action should have been ti'espass, and 
 not case. It was held that the plaintiff had his election : that he might regard 
 the wrongful assessment as the cause of the injury, and declare in case ; or he 
 might treat the arrest by the collector as the act of the selectmen, and declare in 
 trespass.
 
 § 507. LIABILITY OF ASSESSORS OF TAXES. 497 
 
 voice to 1)6 duly given in, beyond the proportion he would 
 have Vjeen liable to pay upon the invoice, and the taxes were 
 collected Ijy distress, it -was held that he might maintain tres- 
 pass for the injury ; it being of the same character as if they 
 had assessed and collected upon him and others, a tax beyond 
 the amount authorized by law. ^ * In New York, the trust- 
 ees of a common school district are liable in trespass for 
 making an assessment and issuing a warrant for the collec- 
 tion of a tax voted at a district meetino- which is not author- 
 ized by law. ^f They are confined strictly to the authority 
 
 ' Walker v. Cochran, 8 N. Hamp. 166. - Baker v. Freeman, 9 Wend. 36. 
 
 * Where a collector of taxes Avas furnished a list of taxes which was not 
 properly and legally made, and the selectmen delivered to him a warrant under 
 their hands and seals, directing him to collect the sums mentioned in the list,, 
 and in pursuance of such direction the collector seized and carried away the 
 plaintiff's cattle, it was held that the selectmen were liable as trespassers (Chase' 
 V. Sparhawk et al. 2 Fost. 134; Woods, J.: "If the precept was unauthorized, 
 and void for want of a sufficient list accompanying it, still, the direction in it 
 was a command of the defendants, and the act which was performed was done- 
 in pursuance of it. The mere fact that the warrant in virtue of which the 
 attachment was made was void, and did not duly authorize the act and juslifj 
 the collector, and even that the collector was not bound to obey the direction in 
 the warrant, cannot protect the defendants against the consequences of the act 
 which they in fact directed to be done. The trespass being committed, both the 
 agent and the person directing it are liable. And, in fact, the defendants 
 should be liable rather than the collector. The. omission of duty being on their 
 part, rather than on the part of the collector, tlie consequences should attend 
 them also. The seizure of the property is properly treated as the ground of the 
 action, and being without legal authority, was a trespass in the collector, and so 
 also in the defendants, by whose order and direction it was made. The plaintiff 
 might well regard the act of the collector as the act of the defendants, as he has 
 done, and declare in trespass against them" (citing Batchelder v. Whitcher, 9 
 N. Hamp. 239; Henry v. Sargeant, 13 K Hamp. 321). 
 
 t In Baker v. Freeman, supra, the court said : " The powers and duties of 
 the trustees being so extensive and exclusive in the management of all the affairs 
 of the district, a correspondent vigilance and attention to the rights of the dis- 
 trict should be required from them ; and I perceive no greater hardship in hold- 
 ing them responsible for the execution of an illegal resolution or vote proceeding 
 from a district meeting, than in holding a party liable for the execution of pro- 
 cess issued by a court without authority. They are not bound to carry into effect 
 such illegal resolutions. The resolutions of such meetings are often passed by 
 the procurement of the trustees, and the trustees are generally looked to as the 
 advisers of all measures in whicli the interest of the district is concerned. They 
 can at any time call a special meeting of the inhabitants to revise and correct 
 any erroneous or illegal step. For these reasons, I am of opinion that trespass 
 lies against them, in a case like the present. Even if ^dewed in the character of 
 ministerial officers, I think they would be liable, on the ground that the resolu- 
 tion showed on its face, that it was passed without authority. It raised money 
 to purchase a site for a school house when the district already had one, and 
 which, of course, must have been known to the trustees ; and as before remarked, 
 if the trustees acted without authority in respect to one of the votes or resolu- 
 tions, the whole proceeding is vitiated and void." 
 
 Vol. L— 32
 
 498 TAKING PEKSONAL PROPERTY BY OFFICER. § 508. 
 
 conferred upon them by tlie statute. In issuing a warrant 
 for the collection of a tax, they act as ministerial officers ; and 
 where the statute prescribes the form and legal effect of the 
 process, they will be trespassers if they depart from it. The 
 warrant being the only authority of the collector, it will not 
 aid his case that he departed from it and proceeded in a way 
 Avhich would have been legal if the process delivered to him 
 had been in the proper form. When the warrant is void on 
 its face, both the collector and trustees, if they act under it, 
 will be trespassers. ^ Under a statute which required that 
 the trustees of a school district, in making out their tax list 
 should be guided by the last assessment roll of the assessors 
 of the town, after it had been reviewed and finally established, 
 an abstract was taken by the trustees from the assessment 
 roll before it was finally established. A tax list having been 
 made out in conformity therewith, a warrant issued for the 
 collection of the tax, and property sold, the assessment roll 
 was subsequently reduced. It was held that the trustees 
 were answerable as trespassers ; but that the tax collector 
 was not liable ; the trustees having jurisdiction, and their 
 warrant affording him protection. ^ * 
 
 10. lAahility of collector of taxes. 
 § 508. While courts should give no countenance to 
 
 ■ Clark V. Hallock, 16 Wend. 607. " Alexander v. Hoyt, 7 Wend. 89. 
 
 * There is no reqiuremeut of law that compels a person to apply for the 
 abatement of a tax that is assessed without authority (Osgood v. Blake, 1 Fost. 
 550). And where a person whose property has been sold for taxes under a void 
 warrant, or for an illegal tax, gives a receipt for the balance after payment of 
 the tax and expenses, he does not therebr waive the trespass (Westfall v. Pres- 
 ton, 49 N. Y. B49). Where persons acting as assessors have been duly chosen 
 and qualified to execute that office, and the sum assessed has been legally or- 
 dered to be assessed, if the assessment be made, and the warrant of collection be 
 issued by them, or a major part of them, in due form of law, and the poll and 
 estate of the party complaining of the assessment be legally taxable, he cannot 
 maintain an action against them as trespassers for any mistake or error in the 
 exercise of their discretion (Dillingham v. Snow, 5 Mass. 547 ; Little v. Green- 
 leaf, 7 lb. 236). In Sanford v. Dick (15 Conn. 447), which was an action of 
 trespass for taking certain personal property belonging to the plaintiS" for taxes, 
 exceptions taken to the validity of the rate bill proceeded upon the ground that 
 although the officers engaged in the levying of taxes had confined themselves 
 within the limits of their jurisdiction, yet that the taxes laid were all void on 
 account of omissions and mistakes. The court remarked that such a principle 
 was not admissible, and if recognized would make void all the taxes in the State.
 
 § 508. LIABILITY OF COLLECTOR OF TAXES. 499 
 
 frivolous objections on the part of the tax payer, and render 
 all proper aid in carrying out the law, they ought to see that the 
 rights of the citizen are not improperly invaded, or his prop- 
 erty taken without authority.^ * Where, in an action against 
 a tax collector for taking and carrying away the plaintiff's 
 cattle, there was no evidence that the defendant took the 
 oath of office as collector, it was held that, as he had no legal 
 authority to seize the plaintiff's goods for taxes, the action 
 must be sustained, though the plaintiff was not entitled to 
 recover the full value of the property taken, but only dam- 
 
 ' Osgood V. Blake, 1 Fost. 550. 
 
 * In Flanders v. Cross, 10 Cush. 514, the trespass alleged was the entry by 
 the defendant, into the plaintiff's building, under claim of right, as the pur- 
 chaser of it, at a collector's sale, for taxes. The defendant denied that trespass 
 lay in such a case, because he said that he purchased in good faith of a person 
 authorized to sell, and because he bought of an executive officer acting in pur- 
 suance of law. The building was erected by the plaintiff, with permission, on 
 the ground of another person, the plaintiff living in another 8tate. The prop- 
 erty was assessed to the plaintiff, by name, as the real estate of a non-resident, 
 and was advertised as such upon the tax not being paid. Afterward, however, 
 the collector changing his views proceeded to sell the building as personal prop- 
 erty, and thus it came into the hands of the defendant. It was held that, as the 
 building was sold as personal estate, though not assessed as such, and not sus- 
 ceptible of being so assessed to the plaintiff, the sale was without law and a nul- 
 lity ; that the entry of the defendant on the plaintiff was consequently tortious, 
 and there must be judgment against him for damages. The court said: '"Was 
 the property here to be considered as real estate, for the purpose of taxation, or 
 as personal? The language of the statute would seem to make it the former. 
 'Real estate,' it says, 'shall, for the purpose of taxation, be construed to include 
 all lands within the State, and all buildings and other things erected on, or af- 
 fixed to the same.' In the case of such property, if there be division of interests 
 as between landlord and tenant, the statute provides the remedy. But there 
 is no power in the collector to divide the property, to levy on the building severed 
 from the land, as divisible parts of the same piece of real estate. On the other 
 hand, certain it is, that such property is or may be personal estate, at least be- 
 tween the landlord and the ground tenant, if they so agree. However, this may be, 
 it was necessary for the town assessors, in the first place, to elect which of the 
 two constructions to adopt. They chose to consider it non-resident real estate, 
 and that election drew after it the necessary consequence of dealing with it as 
 real estate throughout all the process of the collection of the tax. Instead of 
 which, in the sale, the assumed premises of the tax were abandoned, and it was 
 put up as personal estate. If it was personal estate, then it was not taxable 
 in Lawrence. As personalty it was taxable in Manchester where the proprietor 
 of it resided. It is no answer to this to say that the proprietor lived in another 
 State. We tax a ship to the owner in Salem, although the ship never was at 
 Salem; and it cannot be pretended that the assessors of Boston may assess there 
 a ship which happens to be lying at the wharf, or oven a bale of goods in store, 
 when the ship or the goods are the property of a merchant of New York. The 
 only exception to the rule, is, where the foreign owner of goods hires or occujiiea 
 a store, shop, or wharf within tlie State. But this exception is of no pertinency 
 to the present case " (citing Rev. Sts. of Mass. ch. 7, sects. 2, 8, 10; Marcy v. 
 Darling, 8 Pick. 283; Iluckins v. City of Boston, 4 Cush. 543).
 
 500 TAKING PERSONAL PROPERTY BY OFFICER. § 509, 
 
 ages commensurate with tlie injury.^ And wliere the statute 
 did not expressly provide that any one should be eligible to 
 the office of collector of a school district except a resident of 
 the district, but there were provisions in the act on the sub- 
 ject from which the fact and propriety of such residence 
 seemed to be implied on the part of the legislature, it was 
 held, that if the electors of the district should confer the 
 appointment upon a non-resident, he would be an officer de 
 facto^ so that his official acts would not make him a trespasser, 
 although perhaps he might be ousted from his office.^ 
 
 § 509. The authority to assess and collect taxes being 
 wholly derived from the statute, the collector must act 
 strictly within its provisions, and there must have been a 
 legal tax to which the party taxed was liable.^ Without a 
 warrant, a tax collector becomes a trespasser as soon as he 
 meddles with the property of a tax payer. There must also 
 be a law authorizing the issuing of a warrant ; and some 
 person be appointed to issue it ; and it must conform to the 
 statute authorizing it, and be issued by the person designated 
 by law, or it is no protection to the collector.^ When the 
 warrant is good on its face, sufficient in point of form, and 
 the assessors have jurisdiction of the subject, the collector is 
 not liable for its due execution. But a warrant bad on its 
 face, furnishes no protection to him.^ Clark v. Bragdon ^ 
 was an action of trespass brought by Wm. Clark, Amos 
 Clark, and John Lamprey, against a collector of taxes for 
 taking and carrying away wood, belonging to the plaintiffs, 
 to satisfy a tax. The entiy uj^on the tax list, which the de- 
 fendant set forth in his plea, as that under which he took the 
 property, was Wm. Clark " et ally The names of Amos 
 Clark and John Lamprey were not on the list, nor was there 
 any description of them in the warrant, or on the list. The 
 court said : " The description of the plaintiffs on the list, 
 
 ^ Cavis V. Robertson, 9 jST. Hamp. 524, ■ Ring v. Grout, 7 Wend. 341. 
 
 ^ Cloutman t. Pike, 7 X. Hamp. 209. 
 
 * Pearce v. Torrence, 2 Grant, 82 ; Stephens v. Wilkins, 6 Barr. 260. 
 
 =■ Eames v. Johnson, 4 Allen, 383. " 87 N. Hamp. 562.
 
 § 510. LIABILITY OF COLLECTOR OF TAXES. 501 
 
 in this case, was entirely insufficient, and the warrant was 
 consequently illegal and void as to them. ' Et all ' may as 
 well mean any other persons as John Lamprey and Amos 
 Clark. Used as it was, it was unintelligible. It gave no 
 description whatever of the plaintiffs, and no authority to 
 take their property ; and the warrant afforded no protection 
 to the defendant. " 
 
 § 510. If a tax is illegal, for want of power in the town 
 to vote it, as if voted for a purpose wholly foreign to the 
 objects for which towns are created, or for a purpose other 
 than those for which towns are empowered by law to vote 
 and assess a tax, the collector cannot justify the taking of 
 property.^ And an action of trespass may be maintained 
 against a collector of military fines, who distrains for a fine 
 imposed by a court martial, in a case where it has no juris- 
 diction.^ * 
 
 ' Briggs V. Whipple, 7 Vt. 15. ' Wise v. Withers, 3 Cranch, 331. 
 
 * Suydam v. Keyes, 13 Johns. 444, was an action of trespass for taking four 
 barrels of flour from the mill of the plaintiff in the town of Munroe, Orange 
 county, New York. The defense was a justification by virtue of a warrant 
 under the hands and seals of the trustees of the school district (which included 
 the mills of the plaintiff) for collecting a tax which had been voted by the free- 
 holders and inhabitants of the district, for the purpose of building a school 
 house according to the provisions of the 8th section of the act of New York, 
 by which the freeholders and taxable inhabitants of the district were authorized 
 to vote a tax for that purpose, "(??i the resident inhabitants of such district," and 
 to choose three trustees, who were required to make a rate bill or tax list which 
 should raise the sum voted on all the taxable inhabitants of the district, agree- 
 ably to the levy on which the town tax was levied the preceding year, and annex 
 to sucli tax list or rate bill a warrant to the collector of the district to collect 
 the tax accordingly. In this case, the amount of the tax was regularly voted 
 by the freeholders and inhabitants of the district; and the trustees made out a 
 warrant to the defendant as collector, with a rate bill or tax list annexed, in 
 which the plaintiff was set down as an inhabitant of the district. It was ad- 
 mitted that the plaintiff was not a resident of the district, and the tax was 
 therefore illegally imposed. The main question in the case, was, whether the 
 collector, who executed the warrant, could claim protection under it. Piatt, J., 
 in delivering the opinion of the Supreme Court, said: "I incline to the opinion 
 that the collector (as well as the trustees) is a trespasser. The authority of the 
 trustees was special and limited, and in assuming a right to tax the plaintiff, 
 they exceeded the powers vested in them by law. The rule is wisely settled that 
 in such cases, the subordinate officer is bound to see that he acts within the scope 
 of the legal powers of those who command him. Experience has shown that 
 the safety of private rights will not admit of a relaxation of this rule, and the 
 uniform current of English authorities has supported it with jealous caution. 
 The principle is sometimes harsh in its application, but in order to be efficacious 
 .and certain, it is necessary that it should be uniform. Lawless jiower is never
 
 502 TAKING PERSONAL PROPERTY BY OFFICER. §511. 
 
 § 511. The question as to how far a collector of taxes is 
 protected by his warrant, has been decided differently in dif- 
 ferent States. In New York, in an action against the col- 
 lector of a school district, for seizing property for a tax under 
 a warrant regular on its face, the plaintiff was not allowed to 
 show that the forms prescribed by law, in organizing the 
 district, had not been observed.^ * In Massachusetts, some 
 of the cases have intimated that, if the collector has a regular 
 warrant he will be protected.^ In Upton v. Holden ^ it was 
 held that a warrant, legal on its face, issued by commission- 
 ers acting under the statute regulating " proceedings for im- 
 
 80 dangerous as when exerted by public oiBcers according to the forms of law. 
 The remedy for such abuses, ought to be direct and ample. It is, therefore, in- 
 sufficient to allow an action against the trustees only. They may be insolvent, 
 or beyond the reach of process, while the officer, who is the immediate trespasser, 
 is fully able to respond " (See Harrison v. Bulcock, 1 H. Black. 68 ; Mayor v. 
 Knowler, 4 Taunt. 635, cited in the foregoing as analogous). 
 
 Henderson v. Brown, 1 Caines, 92, is distinguishable from the foregoing. 
 That was an action of trespass against a collector for levying a distress for a 
 tax on a theater in New York, which had been assessed as a dwelling-house 
 when it ought to have been assessed as land with the theatre upon it.. There 
 was no want of jurisdiction or excess of jurisdiction. It was an erroneous and 
 not a void assessment, and therefore the collector was justified. 
 
 ^ Reynolds v. Moore, 9 Wend. 35 ; and see Henderson v. Brown, 1 Caines, 
 92; Suydam v. Keyes, 13 Johns. 444; Savacool v. Boughton, 5 Wend. 170; 
 Wilcox v. Smith, lb. 281 ; McCoy v. Curtice, 9 lb. 17. ' 
 
 = Martin v. Mansfield, 3 Mass. 419; Stetson v. Kempton, 13 lb. 272; Thaxter 
 V. Jones, 4 lb. 570; Wells v. Battelle, 11 lb. 477. 
 
 ' 5 Mete. 360. 
 
 * Henderson v. Brown, supra, was an action of trespass for making a distress 
 as collector for a tax. It appeared that the plaintiff was the owner of a theater 
 in the city of New York, and that it was assessed and valued as a dwelling- 
 house under the act of Congress to provide for the valuation of lands and 
 dwelling-houses, and was taxed as such in pursuance of the act to lay and collect 
 a direct tax within the United States. Defendant, for non-payment of the tax, 
 distrained in a regular manner. The theater was conceded not to be a dwelling- 
 house, within the intent of these acts of Congress, and it did not appear that it 
 was ever occupied as such. Held that, as the assessors had jurisdiction over 
 the subject-matter, and their mistake in considering a theater as a dwelling- 
 house was an error of judgment, an action would not lie against the collector 
 (Thompson, J. and Radclift', J., dissenting). 
 
 Where the limits or boundaries of a school district were not sufficiently de- 
 scribed in the written order given by a school commissioner to a person to notify 
 the inhabitants of the district of the time and place of holding a school meet- 
 ing, it was held that it did not render all the acts of the meeting void, so that 
 officers chosen thereat would be liable in an action of trespass for any of 
 their official acts (Ring v. Grout, 7 Wend. 341). 
 
 Trespass will not lie against a collector of internal revenue for the seizure of 
 goods which it afterward appears were not liable to seizure, if as such collector 
 he had good cause to believe and did believe that the property was forfeited to 
 the United States (Averill v. Smith, 17 Wal. 82).
 
 § 511. LIABILITY OF COLLECTOR OF TAXES. 503 
 
 proving meadows," wLicli directed a collector to collect as- 
 sessments made by them on tlie proprietors of meadows, 
 would protect the collector in seizing and selling the property 
 of such proprietors pursuant to his warrant, although the 
 commissioners were not authorized to make the assessments. 
 In Vermont, a collector of taxes cannot justify the taking of 
 property merely by showing a regular tax bill and warrant, 
 but must prove that all the previous proceedings were legal^ 
 It was held in an early case, in that State, that the collector 
 of a school district tax was liable in trespass for seizing 
 property by virtue of his warrant and rate bill, if the dis- 
 trict had no power to grant the tax, or there had been any 
 illegality in voting it, although the rate bill and warrant 
 were regular on their face.^ * The same ground had previously 
 been taken by Chipman, C. J., in Wilcox v. Sherwin ; ^ but 
 his associates on the bench did not coincide. His view was, 
 however, adopted in Bates v. Hazeltine,* where it was held 
 that the collector of a school district tax must not only show 
 his rate bill and warrant, but also the organization of the 
 district, the appointment of the committee, and the vote lay- 
 ing the tax ; and the court remarked that if the tax was not 
 
 ' Collamer v. Drary, 16 Vt. 574; Downing v. Roberts, 21 lb. 441. 
 
 " Waters v. Daines, 4 Vt. 601. =1 D. Chip. 72. 
 
 • - 1 Vt. 81. 
 
 * Waters v. Daines, si'pra, was an action for seizing and carrying away the 
 plaintiffs sheep for a school district tax. No objection was made to the warrant 
 and rate bill, on account of any irregularity apparent on their face. But it was 
 urged that the tax was illegal, and that, therefore, the collector was liable. The 
 court said : '' The position that a collector of taxes is accountable in an action 
 of trespass, when there is a want of power in the town or district granting the 
 tax, or where there is any illegality in voting the same, has been considered as 
 too well settled to be questioned at this time. Unless such action could be main- 
 tained, the person injured would be either without any remedy, or any but one 
 wholly inadequate. No action can be maintained against the corporation, ex- 
 cept to recover back the money wliich they have wrougfully received, and this, 
 it will be seen, would go but little way in compensating a person whose prop- 
 erty has been sacrificed by a public sale, or whose body has been imprisoned to 
 compel the payment of a sum of money illegally demanded of him. Every one 
 who is injured in this way, should be permitted to have recourse immediately to 
 the person who takes his property, or imprisons him against his will, to recover 
 such damages as he has sustained, leaving that person, if he fails to make out 
 a justification on account of the illegality of those who set liim to work, to ob- 
 tain his recompense of the community of which he is a member, and as whose 
 officer, and by whose direction, he committed the injury complained of."
 
 ."504 TAKING PERSONAL TROPERTY BY OFFICER. § 512. 
 
 legally imposed, the collector had no right to collect it. lu 
 New Hampshire, the collector of taxes may justify a seizure 
 of goods, or the arrest of the body under his warrant, witt- 
 «out regard to any defect in the previous proceedings of tlie 
 town or the selectmen. If his own acts are reo-ular, sucli 
 seizure or arrest must, as to him, be regarded as lawful. In 
 case of an illegal assessment, the remedy is against the select- 
 men who issue the warrant, and may take the form of tres- 
 pass for such arrest or seizure. By the statute, the officer is 
 put upon the footing of a sheriif acting under process from 
 a court of competent jurisdiction, which will be a justification, 
 though the process be erroneously issued.^ * 
 
 § 512. It is important to the rights of property, that reg- 
 ulations authorizing the seizure and sale of chattels without 
 the consent of the owner, should be strictly complied with. 
 The common law in no case permitted the immediate sale of 
 a distress ; but only after the goods had been kept a reason- 
 able time. What is to be deemed a reasonable time, is a 
 question of law. A distress ought also to be sold for the 
 best price it will bring. It may be sold at private sale, if the 
 full value can l)e obtained, unless a diiferent mode is pro- 
 vided by statute ; otherwise it should be sold at auction, due 
 notice of the time and place being first given. - f 
 
 ' Blanchard v. Goss, 2 N. Hamp. 401 ; State v. Weed, 21 lb. 262 ; Rice v. 
 Wadsworth, 27 lb. 104; Henry v. Sargeant, 13 lb. 321; Kelley v. Noyes, 43 lb. 
 209; but see Osgood v. Blake,' 1 Fost. 5o0. 
 
 - Blake v. Johnson, 1 N. Hamp. 91. 
 
 * In iMichigan, it has been held that, as the supervisor of taxes cannot notice 
 or except individual cases, but is compelled by law. when the roll has come to 
 him properly certified, to issue a general warrant, unless there be some defect 
 ■which renders the whole roll void, he cannot be made liable as a trespasser by 
 reason of any errors or defects in the description of real estate on the assessment 
 roll (Clark v. Axford, 5 Mich. 182). 
 
 t Where a collector of duties under an act of Congress made a distress and 
 sold the same at less than half the value at auction, in two hours after the seizure, 
 without giving public notice of the time and place of sale, it was held that he 
 had conducted so illegally as to make himself a trespasser ab initio (Blake v. 
 Johnson, siq>ra). In Massachusetts it has been held that if the collector sell 
 goods for taxes after the expiration of the time prescribed by the statute, he will 
 be a trespasser ah initio (Pierce v. Benjamin, 14 Pick. 356). But in New Hamp- 
 shire, the keeping of goods by a collector beyond the time designated by the 
 -statute for their sale, has been deemed a mere non-feasance, for which he will
 
 §§ 513, 514. LIABILITY OF COLLECTOR OF TAXES. 505 
 
 § 513. Where the collector purchases at his own sale, the 
 sale is not void, but only voidable at the election of the 
 owner of the goods. In Pierce v. Benjamin, ^ the defendant, 
 who was collector of taxes, justified the taking of the goods 
 in question under a warrant from the assessors of the town, 
 and a seizure and sale of the same for the payment of the 
 plaintiff's taxes. It appeared that the defendant was the 
 highest bidder and purchaser at his own auction. The court 
 remarked that this conduct of the defendant was clearly a 
 violation of his official duty ; that such a practice would lead 
 to fraud in the publication of notices and the selection of 
 places of sale ; that the respective duties of buyer and seller 
 were incompatible with each other, and no person, in what- 
 ever capacity he might undertake to act, could rightfully 
 sustain both characters ; but that a sale by an officer or 
 other trustee to himself was not absolutely void, the cestui que 
 trust having an option to affirm or avoid it, as he should 
 judge most advantageous to himself; and that as the plaintiff 
 had made no election to annul the sale by a demand of the 
 property, or otherwise, before the commencement of the 
 action, it might well be doubted whether uj)on this ground 
 he could recover. 
 
 § 514. Where the owner of personal property sold for 
 taxes, buys it in at the ailction sale himself, and appropriates 
 it to his own use, in an action of trespass brought by the 
 owner against the tax collector for the wrongful taking, the 
 plaintiff will be entitled to recover only what he was com- 
 pelled to pay for the property ; that being the extent of the 
 injury he has sustained in consequence of the act of the de- 
 
 not be lialjle, though he sell afterward (Factory v. McConihe, 7 N. Hamp, 309 ; 
 Ordway v. Ferrin, 3 lb. G9). Where the collector, having seized more goods 
 than sufficient to pay the tax and expenses of sale, after selling enough for that 
 purpose, proceeds further and sells all the rest, he will not thereby become a 
 trespasser rib initio, but only lial)le for so much as was sold in excess of the re- 
 quirements of law (Seekins v. Goodale, Gl Maine. 400. But see Williamson v. 
 Dow, 32 II). 559). 
 ' 14 Pick. 356.
 
 506 TAKING PERSONAL PROPERTY BY OFFICER. § 514. 
 
 fendant. ^ If lie disaffirm the sale, and treat the defendant 
 as a trespasser, he will be concluded by his election, and 
 cannot afterward affirm the proceedings for the purpose of 
 recovering the balance of the purchase money beyond the 
 amount of the tax. ^ 
 
 ' Hurlburt v. Green, 41 Vt. 490 ; Baker v. Freeman, 9 Wend. 36. 
 = Clark V. Hallock, 16 Wend. GOV.
 
 CHAPTER IV. 
 
 WHO MAY MAINTAIN THE ACTION. 
 
 1. General rule. 
 
 2. In case of goods taken from officer. 
 
 3. Where goods are taken from a servant. 
 
 4. In the case of a corporation. 
 
 5. Where the goods belonged to a person deceased. 
 
 6. Where property is mortgaged. 
 
 7. Where the owner has parted with his right of possession. 
 
 8. In case of bailment. 
 
 9. Where there has been a conditional sale. 
 
 10. In case of agency. 
 
 11. Tenants in common. 
 
 13. Where possession of goods is obtained by fraud. 
 
 1. General rule. 
 
 § 515. The possessor of personal property may maintain 
 trespass against a mere wrong-doer without showing the ex- 
 tent of his right ; possession itself being a sufficient title 
 against all the world except the true owner. ^ Therefore a 
 person who has the possession of goods under a void assign- 
 ment with the assent of the owner, may maintain an action 
 of trespass against one who takes them without right. ^ 
 Where in an action for taking and carrying away a chaise 
 and harness, it appeared that the property was obtained by 
 the plaintiffs, who were heirs at law^ of an estate, by giving 
 in exchange for it another chaise belonging to the estate, and 
 paying the difference in value between them in money of the 
 estate ; and that the defendant, a collector of taxes, sold the 
 chaise for a tax which was illegally assessed ; it was held 
 
 • Potter V. Washburn, 13 Vt. 558; Odiome v. Colley, 2 N. Hamp. 66; Out- 
 calt V. Burling, 1 Butcher, 443 ; Armory v. Belamirie, 1 Str. 505 ; Hoyt v. Gel- 
 ston. 13 Johns. 141, afif'd on error, lb. 561; Brown v. Ware, 25 Maine, 411; 
 Jones V. M'Neil, 2 Bailey, 466; Harrison v. Bavis, 2 Stew. 350; Bemick v. Chap- 
 man, 11 Johns. 132; Carson v. Prater, Cold. Tenn. 565. 
 
 ^ Barker v. Chase, 24 Maine, 230 ; Harrison v. Bavis, 2 Stew. 350.
 
 508 WHO MAY MAINTAIN THE ACTION. § 516. 
 
 that the plaintiffs were entitled to recover. As the tax was 
 illegally assessed, the act of the defendant in taking the prop- 
 erty out of the possession of the plaintiffs was wrongful. As 
 against him the possession of the plaintiffs was a sufficient 
 title ; and as lie had not shown any right to interfere, they 
 were not bound to go beyond the evidence of title which 
 their j)ossession furnished.^ Where a master in chancery, 
 without jurisdiction or authority, appointed a receiver of 
 goods, but tlie papers were regularly issued under the seal 
 of the court, it was held that the receiver might defend an 
 action of trespass for the goods. ^ In an action for shooting 
 and killing a mare, it appeared that the plaintiff' took up the 
 mare, which was straying, and kept and worked her a year 
 or more, and it was held that he was entitled to recover; 
 possession, and not title, being the basis of the action.^ A 
 similar decision was rendered in the case of sheep in the cus- 
 tody of a person as estrays. ^ In an action of trespass for 
 taking and carrying away personal property from the pos- 
 session of the plaintiff", he described himself as trustee of his 
 wife. It was held that the plaintift^'s possession was suffi- 
 cient to enable him to maintain the action, and that the alle- 
 gations that he was his wife's trustee, and that the property 
 was hers, might be rejected as sui'plusage. ^ * 
 
 § 516. When the property of a bankrupt has become 
 vested in his assignees they may maintain an action for its 
 injury.^ If an injury to the person of the bankrupt is the 
 consequence of the injury to the goods, the injury to the latter 
 is the primary and substantial cause of action, and such right 
 
 ^ Pickering v. Coleman, 12 N. Hamp. 148. 
 
 - Brush V. Blanchard, 19 111. 31. ' Boston v. Neat, 13 Mo. 135. 
 
 * Hendricks v. Decker, 35 Barb. 398. ' Limbert v. Fenn, 33 Conn. 158. 
 •^ Mitchell V. Hughes, 6 Bing. 689. 
 
 * Certain land having been sold by an administrator, the vendee took pos- 
 session and sowed it with wheat, but linding that he had no title to the land, 
 the contract was rescinded, and he left. The administrator then sold the land 
 to another person, who put a tenant on it. The first purchaser afterward cut the 
 wheat, and the second purchaser carried it away. It was held that the first pur- 
 chaser by cutting the wheat became possessed of it, and that he could maintain 
 trespass for taking it (Algood v. Hutchius, 3 Murph. 496).
 
 § 517. GENERAL RULE. 509 
 
 of action will pass to the assignees as part of tlie personal 
 estate.^ When there is a mixed case of injury to the person 
 and injury to the proi3erty, the bankrupt may maintain an 
 action for the personal injury sustained by him, and the as- 
 signees another action for the injury done to the property.^ 
 If the property remain in the custody of the bankrupt, he 
 may maintain an action for the wrongful taking of it, not- 
 mthstanding the assignment. Where a bankrupt allege^ in 
 his declaration that the defendant had seized his goods under 
 a false and pretended claim of right ; that he was thereby 
 much annoyed and prejudiced in his business, and believed 
 to be insolvent ; and that by means of the premises, certain 
 of his lodgers being induced to believe that he was in embar- 
 rassed circumstances, and that the defendants were entitled 
 to seize the goods for a debt, quitted the house, and the de- 
 claration then claimed special damages, it was held that a 
 plea of the bankruptcy of the plaintiff and of the transfer of 
 the causes of action to the assignees was no answer to the 
 plaintiff's claim.^ 
 
 § 517. The mere 2)ossessor of goods cannot, however, 
 maintain the action when a paramount right is shown in a 
 third person with whom the defendant connects himself.* 
 Hammond v. Plimpton ^ was an action of trespass for wood. 
 The plaintiff claimed title to the wood by purchase upon an 
 execution against one Parkhurst. The defendant claimed to 
 own tlie same wood by means of purchase of one Ingraham. 
 It appeared that Ingraham and Parkhurst entered into an 
 agreement for cutting and drawing a quantity of wood. In- 
 graham was to cut the Avood of a particular size, and Park- 
 hurst to pay him a given sum per cord for cutting and draw- 
 ing, and the contract provided that " Ingraham should own 
 and possess the wood until he was paid for cutting and draw- 
 ing." The wood having been cut and drawn by Ingraham 
 
 ' Drake v. Beckham, 11 M. & W. 315; Hodgson v. Sidney, L. R. 1 Exch. 
 313. 
 
 » Rogers v. Spence, 12 CI. & ^in. 700. = Brewer v. Dew, 11 M. & W. 625. 
 * Hutchinson v. Lord, 1 Wis. 286. ' 30 Vt. 333.
 
 510 WHO MAY MAINTAIN THE ACTION. § 518. 
 
 under the contract, and piled near Parkliurst's shop in the 
 highway, it was attached and sold on execution against Park- 
 hurst as his property, and purchased at the sheriffs sale by 
 the plaintiff. After the attachment, and before the sale, the 
 defendant bought the wood of Ingraham, then piled in the 
 highway, but did not remove any part of it until after the 
 sale on the execution, and after that he drew away some 
 twenty-three cords of it. It was held, that as Ingraham had 
 a special property in the wood under his agreement with 
 Parkhurst, and the defendant succeeded to the rights of In- 
 graham, the plaintiff could not recover. 
 
 § 518. Personal property taken under a valid writ of 
 attachment, being in the custody of the law, the owner can- 
 not maintain trespass de bonis asportatis either against the 
 creditor or the officer for attaching the same under a subse- 
 quent writ.* In an action of trespass it appeared that an 
 officer had previously taken the goods of the plaintiffs into 
 his custody on a writ of attachment sued out by a stranger 
 against the plaintiffs' assignors. In this the defendant had 
 taken no part, but finding the goods thus in the hands of the 
 officer, under color of right, he placed another writ of attach- 
 ment against the assignors in the officer's hands, and directed 
 him to hold the goods for the security of his own debt, to be 
 ascertained by judgment. It was held that the defendant, in 
 delivering the writ to the officer, had not inflicted any such 
 injury upon the plaintiffs, nor had the plaintiffs any such 
 possession of the goods as entitled them to maintain the ac- 
 tion.^ f 
 
 ' Hunt V. Pratt, 7 R. I. 283. 
 
 * It has been held that it makes no difference in such case whether the prop- 
 erty belongs to the debtor or a third person (Ginsberg v. Pohl, 35 Md. 505). 
 
 t In Hunt V. Pratt, supra^ the court said: "At that time the plaintiffs had 
 neither the actual nor constru»tive possession of their goods, since they were in 
 the hands of the officer, held by him adversely to them, wrongfully, it is true, 
 but under a claim of right. The general property in goods draws to it the 
 possession of them, when unpossessed by others, or possessed by others in right 
 of the general owner. But how in any sense can the owner of goods be said to 
 possess them, when they are actually in the possession of another, who holds 
 them adversely to him under a claim of right ? The cases cited to this point by
 
 § 519. GENERAL RULE. 511 
 
 § 519. An averment of property in the plaintiff will be 
 maintained by evidence of actual possession coupled v^ith an 
 interest, though the absolute property is in a third party. ^ 
 In an action of trespass against a deputy sheriff for attaching 
 certain machinery and cloths as the property of a woolen 
 manufacturing company, it appeared that the plaintiff had 
 loaned to the company a large sum of money, and that by 
 mutual agreement between the company and the plaintiff', 
 the latter, in order to secure himeelf for his advances, had 
 taken possession of and operated the factory, carrying on the 
 same business and with the same workmen ; it being agreed 
 that he should run the factory at the risk and on account of 
 the corporation, until he was paid. It was held, that the 
 
 the plaintiffs found themselves upon the text of Chitty, who in his work on 
 pleading, p. 171, says: ' If a second trespasser takes goods out of the custody of 
 the first trespasser, the owner may support trespass against such second trespasser, 
 his act not being excusable.' The reason given by Chitty is certainly a good one 
 why the owner should maintain an action against the second trespasser, but none 
 whatever why he should maintain trespass. The authority cited by him is 
 Siderfln, 438, which contains one of many reports of the well known case of 
 Wilbraham v. Snow, 2 Saund. 47. Now the only point decided, or even men- 
 tioned by the Court of King's Bench in that case, is, that a sheriff has such a 
 property in goods seized by him in execution, that he may maintain trespass or 
 trover against one who takes and carries them away, and converts them to his 
 own use. Siderfin's note, indeed, is: 'If A. takes my goods, and then B. takes 
 them from A., I may have trespass or trover against the one or the other, at my 
 election, although the opinion in Croke is that I cannot have trespass against B.' 
 This might well be the opinion in Croke, since the law was precisely so settled, 
 as appears by the digests and reports used in those days. But however this may 
 be, in the case at bar the defendant did not stand in the plight of a trespasser 
 upon the oiBcer, nor did he take the goods at all, but simply by delivering his 
 writ to the officer directed him to hold the goods already taken by the officer 
 upon the writ of another for his (the defendant's) security, and this the officer 
 did. Now, if the sheriff, considered as having obtained the goods by trespass, 
 had actually delivered them to the defendant, it is old law, from the Year Books 
 downward, that the receiving of the goods from him by the defendant could not 
 subject the latter to trespass at the suit of the general owner. If the actual re- 
 ceiving of the goods by the defendant from the sheriff, when he knew that the 
 sheriff had obtained them by trespass, would not constitute the defendant a tres- 
 passer, provided the trespass was not originally committed to his use, or for his 
 benefit, how much less will the act of the defendant, who finding the officer in 
 the quiet, and as he supposed, lawful possession of the plaintiff's goods, merely* 
 directed him, by a writ of attachment, to detain them for the security of his 
 debt against another whose goods he was advised they were. It would be new 
 law indeed if the mere unlawful detainer of goods, or particijiation in such an act, 
 amounted to that forcible invasion of the owner's possession of them which the 
 law denominates a trespass " (citing Brooke Abr. Trespass, pi. 358; Rolle's Abr. 
 Trespass, p. 556; 4 Inst. 317; 6 Com. Dig. Trespass, G; Wilson v. Barker, i 
 Barn. & Adolph. 614; Wright v. Woolen, 7 Law Times R. N. S. 73). 
 ' Outcalt V. Duriiug, 1 Dutcher, 443.
 
 512 WHO MAY MAINTAIN THE ACTION. § 520. 
 
 possession of tlie plaintiff was coupled with an interest of 
 wliich he could not be deprived either by the company or 
 any other person, except on the terms expressed in the agree- 
 ment between him and the company, to wit, the payment of 
 his claim ; and that therefore he was entitled to recover.^ A. 
 having sold to B. 43,000 bricks, to be taken out of an un- 
 finished kiln containing a larger quantity, delivered posses- 
 sion of the brick yard to B., and agreed with him to burn 
 the kiln, which he accordingly did, and then executed to C. 
 a bill of sale of all the bricks in the kiln. It was held, that 
 B. had a right to take the 43,000 bricks, although they were 
 not separated from the residue, and that C. could not main- 
 tain trespass against him for such taking. While the actual 
 possession was in B., it did not appear that any possession 
 w^hatever had been delivered to C. ; neither had C. the abso- 
 lute property in any of the brick until B. had exercised his 
 right of selection.^ 
 
 § 520. The person who has the general property in a per- 
 sonal chattel may maintain trespass for the taking of it by a 
 stranger, although he never had the possession in fact ; a 
 general property drawing to it a possession,^ In Bulkley v. 
 Dolbeare,^ A. owned a farm, which he leased for years to B. ; 
 and C, while A. w^as out of the actual possession, "without 
 license, cut down trees, and some time after the severance of 
 them from the soil, carried them away. It was held, that 
 trespass de honis asportatis might be maintained by A. 
 against C. The case involved a single proposition, and that 
 was, that the plaintiff having the general property in the 
 trees, which were not in the actual possession of any one at 
 the time of the trespass, the law invested him with a con- 
 structive possession, and with the right of maintaining the 
 
 ' Howe V. Keeler, 27 Conn. 538. ■ Crofoot v. Bennett, 2 N. Y. 258. 
 
 ' Bro. Abr. Tit. Trespass, pi. 30.3, 341 ; Bac. Abr. Trespass, C, 2, 3 ; Stark. 
 Ev. 1439 ; Smith v. Mills, 1 Term R. 475 ; W^ard v. Macauley, 4 lb. 489 ; Gorden 
 T. Harper, 7 lb. 9. 
 
 ^ 7 Conn. 232.
 
 § 521. GENERAL RULE. 513 
 
 action.* So where A. mortgages to B. a shop standing on 
 the land of C, B. may maintain trespass against D., who 
 pulls down the shop and carries it away, although it is un- 
 occupied at the time, and B. never took actual possession.^ 
 
 § 521. The rule is well settled, however, that in order to 
 maintain trespass de bonis asportatis^ it is essential that the 
 plaintiff have had at the time of the commission of the in- 
 jury the actual or constructive possession of the goods, or a 
 general or special property in them, and a right to the imme- 
 diate possession.^ This point first came under consideration 
 in New York, in Putnam v. Wyley,^ in which the Supreme 
 Court of that State, approving Ward v. Macauley,* said : 
 " That case was no more than a recognition of the settled 
 principle that a plaintiff cannot bring trespass for taking a 
 chattel, unless he has the actual or constructive possession at 
 the time. He must have such a right as to be entitled to re- 
 duce the goods to actual possession when he pleases." In 
 Ward V. Macauley, Lord Kenyon said that the distinction 
 between trespass and trover was w^ell settled ; the former 
 being founded on possession, the latter on property ; and he 
 
 ' Woodruflf V. Halsey, 8 Pick. 333. 
 
 "^ Hume V. Tufts, 6 Blackf. 136 ; Canuon v. Kinney, 3 Scam. 9 ; ]^['Farlaud v. 
 Smith, Walker, 173; Bell v. Monahan, Dudley, S. C. 38; Codman v. Freeman, 3 
 Cush. 306; Boise v. Knox, 10 Mete. 40; Thurston v. Blanchard, 22 Pick. 18; 
 Woodruff V. Halsey, 8 Pick. 333 ; Perkins v. Weston, 3 Cush. 549 ; Bird v. Clark, 
 3 Day, 272; Crenshaw v. Moore, 10 Geo. 384; Bulkley v. Dolbeare, 7 Conn. 32; 
 Freeman v, Rankins, 21 Maine, 446 ; Staples v. Smith, 48 Maine, 470 ; Walcot 
 V. Pomeroy, 2 Pick. 121; Lunt v. Brown, 1 Shepl. 236; Brown v. Thomas, 26 
 Miss. 33o; Clark v. Carlton, 1 N. Hamp. 110; Hanmer v. Wilsey, 17 Wend. 91; 
 Dallam v. Fitler, 6 Watts & Serg. 323; Heath v. West, 8 Fost. 101; Maggridge 
 V, Eveleth, 9 Mete. 233. 
 
 = 8 Johns. 432; and see Wilson v. Mackreth, 8 Burr. 1824 ; Smith v. Milles, 
 1 T. R. 480. 
 
 * 4 Term R. 489; but see Gordon v. Harper, 7 lb. 11. 
 
 * Possession and ownership of land from which rails and logs have been 
 wrongfully taken, is prima facie evidence of title to them (Dorcey v. Patterson, 
 7 Clarke, Iowa R. 430). A claimant on public land who has left rails piled 
 thereon, when it is entered may sue a person who has taken them by permission 
 of the owner of the land (Robertson v. Phillips, 3 Iowa, 330). 
 
 Two persons claiming a field, but without either a title or actual possession, 
 raised thereon corn. One of them afterward cut the corn, piled it in heaps, and 
 left it for a week. It was held that he had not thereby such an exclusive pos- 
 session of the corn as to empower him to maintain an action against tiie other 
 for removing it (McGahey v. Moore, 3 Iredell, 35). 
 Vol. I.— 33
 
 514 WHO MAY MAINTAIN THE ACTION. § 521. 
 
 held that as the plaintiff had no possession of the chattels 
 when the supposed trespass was done, his remedy was by 
 action of trover founded on his property in the goods.* In 
 an action against an officer for wrongfully attaching the 
 goods of the plaintiff', it w^as objected that the instruction to 
 the jury, that to entitle the plaintiff to recover, he must 
 show that at the time of the alleged trespass he held a title 
 to the property, or to some part of it, was incorrect and 
 might mislead the jury, the word title having an indefinite 
 signification. But it w^as held that there was no ground for 
 such an exception ; that a party might have a title to prop- 
 erty, although he was not the absolute owner ; that if he had 
 the actual or constructive possession of property, or the right 
 of possession, he had a title thereto, notwithstanding an- 
 other party might be the owner ; but that if the plaintiff 
 had not the possession, nor the right of possession, nor the 
 right of property, he certainly could not maintain his ac- 
 tion.^ f H. bought what is termed " timber leave," that is 
 * 
 
 ^ Roberts v. Wentworth, 5 Cush. 192. 
 
 * Demand and refusal constitute no foundation for an action of trespass which 
 is a tortious invasion of the possession of another (Imlay v. Sage, 5 Conn. 489, 
 per Peters, J.). 
 
 In Eoot V. Chandler, 10 Wend. 110, the plaintiflf lent two horses to Messrs. 
 Rice and. Goss, to go east as far as Clarence,hut no further. Goss, however, took 
 the horses to Batavia, where they were seized by a constable on an execution 
 against Rice. Shortly afterwards the creditors of Rice, of whom the defendant 
 was one, held a meeting and directed the constable to detain the horses, they 
 agreeing to indemnify him. The constable kept the horses secreted about a week 
 to avoid a replevy, which was threatened by some person other than the plaintiff, 
 and then sold them. It was held that the plaiutilf had sufficient possession to 
 maintain trespass, and that the defendant was liable. 
 
 In an action against an officer for wrongfully seizing and selling the plaintiff's 
 property under an execution, the person who owned the property at the time of 
 the trespass is properly made plaintiff, though he sold the property before the 
 action was brought (Boynton v. Willard, 10 Pick. 166). 
 
 Where, after the goods of A. were attached in a suit against B., A. sold them 
 to C, it was held that A. might maintain an action of trespass against the attach- 
 ing officer for the benefit of'^C. (Holly v. Huggeford, 8 Pick. 73). Parker, C. J. : 
 •'the property at the time of the assignment was in the custody of the law under 
 an attachment. The plaintiff's right was in action only, and he could not sell so 
 as to enable the vendee to sustain an action. He had a right to carry on the suit 
 in his own name for the benefit of his vendee, and the defendant cannot object 
 to his want of title on- this ground.'' 
 
 t Winship et al. v. Neale, 10 Gray, 382, was an action for taking and carrying 
 awav the plaintifis' goods. At the'trial, in the Superior Court, it was claimed, 
 in behalf of the defendant, that "the plaintiffs had not, at the time of taking by 
 the defendant, the possession of the articles sued for, nor the right to immediate
 
 § 521. GENERAL RULE. 515 
 
 tlie riglit to cut timber and manufacture it into staves, the 
 staves not to be removed from the land until they were paid 
 for. After making the staves, he sold the right to D. No 
 actual delivery of possession hj H. to D. was necessary to 
 make the transfer good as against H.'s creditors. All that 
 passed to D., however, was the right, upon payment of the 
 timber leave, to take the staves. The staves having been 
 levied on by the sheriff as the property of H., it was held 
 that as D. had not paid for them, he had neither the pos- 
 session nor right of possession, and could not maintain 
 trespass for taking them.^ The owner of lost goods has not 
 such possession as will enable him to maintain trespass for 
 them.^ And where a wagon has been made for a person by 
 
 possession, and could not therefore maintain the action.'' The judge, however, 
 charged the jury, that '"although such was the law previous to the new practice 
 act, it was not so then ; and that it was not necessary for the plaintiflfs to have 
 actual possession, or the right to immediate possession, if the jury were satisfied 
 that they were the owners at the time of the taking." A verdict having been 
 found for the jjlaintiffs, the Supreme Court, in setting it aside, said : " The cause 
 of action set out in the declaration was either in the nature of trespass for wrong- 
 fully taking goods belonging to the jilaintifts, or of trover for converting them. 
 In either case it was necessary to show possession, or a right to immediate pos- 
 session, otherwise the evidence would fail to support the essential allegations in 
 the declaration. The practice act makes no change in the rules of evidence 
 applicable to the various causes of action comprehended under the general 
 designation of actions of tort. The ruling of the court would have been 
 correct if the declaration had been for the wrongful act of the defendant in 
 depriving the plaintifts of their reversionary right or ownership in the property, 
 subject to the special right or interest therein; but it was erroneous as applied 
 to the cause of action set out in the declaration " (citing Robinson v. Austin, 3 
 Gray, 5G4). 
 
 Where lumber is left by a lessee upon the demised premises at the expiration 
 of his term, he cannot maintain trespass against a subsequent purchaser of the 
 land who is in possession for taking the lumber (Weitzel v. Marr, 46 Penn. St. R. 
 463). 
 
 Where land sold or leased remains in the actual possession of the vendor or 
 lessor, no constructive possession of the personal property on it can be raised 
 for the aid of the vendee or lessee against such actual possession, for this would 
 make the constructive possession more potential than the actual and apparent one 
 (Flanagan v. Wood, 33 Vt. 333). 
 
 So, where the vendor and vendee, or the lessor and lessee remain in the joint 
 po3.session of the land, the same rule as to change of possession of jicrsoualty 
 applies as in the joint jiossession of personal property alone, viz. : that if the 
 possession of the vendee or lessee is apparently that of a joint owner, and 
 there is no actual and exclusive possession of the personal property by the 
 vendee, the personal property on the land will be deemed to be in their joint pos- 
 session, and a sale or attachment of it, without removal, will be void (lb. citing 
 Stephenson v. Clark, 30 Vt. 634; Mills v. Warner, 19 Vt. 609; Stiles v. Sliumway, 
 16 Vt. 435; Parker v. Kendrick, 39 Vt. 388). 
 
 ' Creps V. Dunham, 69 Penn. St. R. 456. ' Wright v. The State, 5 Yerg. 154,
 
 516 WHO MAY MAINTAIN THE ACTION, § 522. 
 
 agreement, lie lias not such a title to it as will support an 
 action of tresjDass until there has been an express or implied 
 delivery and acceptance of the wagon.^ ■^* 
 
 § 522. The owner's possession of personal property is 
 
 ' Ledbetter v. Blassingame, 31 Ala. 495. 
 
 * But where, in an actiop of trespass for taking and carrying av/ay a desk 
 belonging to the plaintiff, which was being made for him by one Brown, it ap- 
 peared that the plaintiff furnished part of the materials, and Brown the residue, 
 and that the desk was attached ijy the defendant, as deputy sheriff, on process 
 against Brown, and taken from Brown's shop when partly constructed, it was 
 held that the property and right to immediate possession being in the plaintiff", 
 he was entitled to a verdict. 
 
 Where, in an action of trespass for a quantity of starch, the possession of 
 which the plaintiff claimed by reason of having attached it in the barn of a 
 third person, it appeared that, at the time of the attachment, the plaintiff did 
 not move or take possession of tlie starch, except by notifj'ing said third person ; 
 it was held that the plaintiff liad not such property in the starch as to enable 
 him to maintain trespass therefor against one who afterward attached and took 
 possession of the same on other writs of attachment (Blake v. Hatch, 25 Vt. 
 555). 
 
 Carter v. Simpson. 7 Johns. 535, was an action of trespass for destroying a 
 stack of hay belonging to the plaintiff, and tearing down and carrying away the 
 fence around the stack. The plaintiff was allowed to prove his ownership of the 
 hay in a stack on the land of the defendant, by purchase at a constable's sale on 
 execution against one Jarvis, without the production of the execution and judg- 
 ment under which the sale was made; and the defendant was not allowed to 
 prove that the execution had expired at the time of the sale. The Supreme 
 Court, in reversing the judgment, said: " As the plaintiff below never had pos- 
 session of the hay, which was on the defendant's ground at the time of the al- 
 leged injury, he was bound at least to show a right of property. The proof of a 
 purchase at auction, at a constable's sale, without showing the authority under 
 which the constable acted, was not enough. If the constable had no authority 
 to sell the hay, the vendee had no title. The books have gone so far as to saj' 
 that a vendee under a lawful judgment and execution shall not lose his property 
 upon a reversal of the judgment by writ of error. But no case admits a title in 
 the purchaser when the sheriff acted without authority " (see 3 Hill, 557 ; 1 
 Keruan, 71). 
 
 Where the wife's personal property in possession vests absolutely in the hus- 
 band upon the marriage, for an injury done to it subsequently, she cannot join. 
 In Rawlins v. Rounds, 27 Vt. 17, the declaration averred that the property be- 
 longed to the wife, without any averments as to the time of the trespass with 
 reference to the marriage. It was objected, on demurrer, that tliere was no suffi- 
 cient allegation of either title or possession in the plaintiffs at the time of the 
 injury. The court, in sustaining the demurrer, said: "In order to render it 
 proper for the wife to join in this action, we must presume this property was 
 the wife's, and taken from her before marriage, nothing of which appears in the 
 declaration. For if the wife earned the property after marriage, and so was, in 
 some sense, the meritorious cause of action, as the books term it, this will not 
 enable her to have a separate property in things personal reduced to possession ; 
 but both the property and possession become that of the husband. And a mar- 
 riage settlement, to enable the wife to hold separate personal property in posses- 
 sion, could only be created by the intervention of trustees, and the legal 
 possession would be in them for her benefit; so that it seems to us altogether 
 impossible to get over this first difficulty, which seems fatal on general de- 
 murrer."
 
 § 522. GENERAL RULE. 517 
 
 constructive, when it is either in the actual custody of no 
 one, but rightfully belongs to himself, or when it is in the 
 care and custody of his servant, agent, or overseer, or in the 
 hands of a bailee for custody, carriage, or other care or serv- 
 ice, as a depositary, mandatary, carrier, borrower, or the 
 like, where the bailee or actual possessor has no vested inter- 
 est or right to the beneficial use or enjoyment of the property ;, 
 or to retain it in his possession, but the owner may take it 
 into his own hands at pleasure.* Where goods are locked 
 up in a vacant house, of which the owner of the goods is 
 lessee, the owner, although at a distance, is constructively in 
 possession.^ Standing timber, when sold by the owner of 
 the land and severed from the ^oil by the vendee, becomes, 
 the personal property of the latter, and he may maintain 
 
 ' Briihl V. Parker, 3 Brevard, 406. 
 
 * Of course, where the plaintiff relies upon constructive possession arising by 
 implication of law from the alleged fact that the legal title is in him, unless he 
 can establish his title, he is left without possession, either actual or constructive, 
 and, consequently, without a basis for his action to rest upon. Howe v. Farrar 
 (44 Maine, 233) was an action of trespass against a sheriff for attaching certain 
 personal property belonging to the plaintiff on a writ against one Foster. The 
 plaintiff, to prove his title, introduced a mortgage from Foster. The defendant 
 contended that he obtained no title, and, consequently, no constructive posses- 
 sion, by virtue of that mortgage, for the reason that Foster had, before the exe- 
 cution thereof, divested himself" of his title to the property by mortgaging it ta 
 one Brown; and to show that fact, he offered the Brown mortgage in evidence, 
 which was excluded. The Supreme Court, in granting a new trial, on account 
 of this ruling, said: "How the fact would have turned out had the evidence 
 offered been admitted, we cannot determine. Further investigation might have 
 shown that the Brown mortgage had been paid, or in some way canceled or dis- 
 charged; in which event, the plaintift''s title and his constructive possession 
 would apparently have been established; or it might have turned out that the 
 mortgage had been foreclosed, and that tlie title of Brown had become absolute. 
 This would have wholly defeated the plaintiff's riglit of action, in which event, 
 the defendant could not have been called upon by him to justify his taking. 
 The Brown mortgage was competent testimony tending directly to establish this 
 proposition. Whether it was sufficient, or could have been made sufficient, with 
 other testimony in the power of the defendant to introduce, we cannot determine. 
 It certainly would constitute an important link in a chain of evidence having 
 that legitimate tendency, and for that purpose should have been admitted." In 
 Howe v. Farrar, supra, it was objected that the defendant could not avail him- 
 self of the Brown mortgage to justify his taking by showing title in some party 
 other than the plaintiff, unless lie coaid connect himself with such outstanding 
 title. To wliicii it was answered tliat this was undoubtedly true, if the object 
 of such evidence was to justify the taking of the property from the possession of 
 the plaintiff; but that the defendant denied that the possession was in the plaintiff 
 at the time of the alleged taking.
 
 518 WHO MAY MAINTAIN THE ACTION. § 523. 
 
 trespass against a wrong-doer for its removal.^ A., who 
 owned land, sold to B. tlie riglit to cut and remove wood 
 therefrom ; and B., having cut the wood, left it on the land. 
 Subsequently, C, under a habere facias possessionem^ issued 
 upon a judgment in ejectment, obtained by default against 
 A., went on the land, and took and carried away the wood 
 cut by B. ; and A. afterward established his title to the land 
 and regained possession. It was held that B. was entitled to 
 recover iu trespass against C. for the wood taken by him.^ 
 But the lien of an execution before levy gives the sheriff no 
 right to maintain trespass for its removal. The sheriff has 
 by his writ only a right to levy, not possession. He is not 
 an owner, but armed merely with a power, and, therefore, 
 before levy, can maintain no action founded upon an injuiy 
 done to the possession.^ So, likewise, an auctioneer, put into 
 possession of fixtures attached to the freehold, for the purpose 
 of selling them, the purchaser being bound to detach and re- 
 move them, has not such a possession as will support trespass 
 for their wronoful removal.* 
 
 § 523. The mere delivery of goods to another to keep, 
 with right to resume the possession at any time, will not de- 
 feat the action.^ A. delivered to B. o-oods to be sold on com- 
 mission or returned on demand. C. attached the goods as 
 the property of B. It -s^-as held that, as the general property 
 in the goods unsold and the right to their immediate posses- 
 sion remained in A., he could maintain trespass for them.*^ * 
 
 ' Gambling v. Prince, 2 N. & M. ] 38. But see Waggoner v. Corlew, Cooke, 
 216. 
 
 = King V. Baker, 25 Penn. St. R. 186. 
 
 = Cluley V. Lockhart, 59 Penn. St. R. 376. 
 
 ^ Davis v. Banks, 3 Exch. 435; 18 L. J. 213. 
 
 'Hart V. Hyde, 5 Vt. 338; ThoiiD v. Burling, 11 Johns. 285; Walker v. 
 Wilkinson, 35 Ala. 725. 
 
 *■■ Shloss v. Cooper, 27 Vt. 623. 
 
 * Hay ward Rubber Co. v. Duncklee (30 Vt. 29) was an action of trespass for 
 rubber shoes, which had been consigned by the plaintiffs to B. & T., to be sold 
 by them on commission, and which the defendant, a constable, had attached as 
 the property of B. & T. It was proved by one Holton that he was the traveling 
 agent of the plaintiff, and as such agent he had agreed Avith B. & T. that the 
 rubbers in question should be consigned to them to be sold on a specified com-
 
 § 523. GENERAL RULE. 519 
 
 'The receiptor of property attached who delivers it to another, 
 may maintain trespass against one who takes it away, the re- 
 ceiptor having the constructive possession of it, and being 
 answerable for it to the person from whom he received it.^ " 
 So, likewise, one who has goods in the hands of an auctioneer 
 for sale, with the right to resume possession at any time, may 
 maintain an action of trespass against an officer who, with 
 
 mission; that the company approved of the arrangement, and the rubbers were 
 sent by him to B. & T., pursuant thereto. Tlie court, before which the trial was 
 had, instructed the jury tliat, if it appeared that, at the time of the attach- 
 ment, the plaintiffs were indebted to B. & T. for commissions, B. & T. would 
 have a lien on the rubbers, so that the plaintiffs would not have such a right to 
 possession of the rubbers as to enable them to maintain trespass. But that, if B. 
 & T. had the rubbers under the contract testified to by Holton, and B. & T. had no 
 claim for commissions, and they had not paid the plaintiffs anything for the rub- 
 bers which the plaintiffs sent them, the plaintiffs had such a right to the posses- 
 sion of the property in question that trespass was the proper remedy ; it being 
 conceded that B. & T. became insolvent a few days before the property was at- 
 tached by the defendant. The Supreme Court said: "In regard to the plaintiffs' 
 right to maintain trespass, we think the charge was right. The plaintiffs had 
 the general ownership of the goods, and B. & T. had no lien upon them for com- 
 missions ; and though they had the possession of them imder the bailment, with 
 a power of sale, yet, upon the insolvency of B. & T., there was a right in the 
 plaintiffs to imniediate and actual possession, and this general right would give 
 a constructive possession " (citing Chaffee v. Sherman, 26 Vt. 237). The case of 
 Skiff V. Solace (23 Vt. 279) is not analogous to the foregoing. There the plaintiff" 
 was not the general owner of the chattels, and of course could not, by means of 
 a special property, have a constructive possession (Bennett, J., in Hayward Rub- 
 ber Co. V. Duncklee, supra). 
 
 ' Burrows v. Stoddard, 3 Conn. 160, 431. 
 
 * Where, in an action of trespass for taking and carrying away cattle, it ap- 
 peared that the plaintiff, who was a deputy sheriff, havingattached them, re- 
 moved them into the State of Rhode Island, where he placed them in charge of 
 two persons, taking their receipt, and they delivered them for safe keeping to 
 one P., who lived in Rhode Island, and he kept them until they were taken by 
 the defendants, who had notice of the attachment, it was held that the plaintiff 
 was entitled to recover (Brownell v. Manchester, 1 Pick. 232). Parker, C. J. : 
 "The inquiry is, whether the special property of the plaintiff was determined on 
 the goods being carried into the State of Rhode IsUmd ; and there is no pretense 
 for this, for the officer had the contract of his bailee to redeliver them when they 
 should be wanted ; and if they were brought to him when he should want them 
 to satisfy the execution, they would l)e considered as holden from the time of the 
 attachment. There seems to be no difference, as to the authority of the officer 
 over the goods, between carrying them just over the line of an adjoining State, 
 and carrying them into an adjoining county; for he has as much authority in the 
 one place as the other. Then, supposing them to be in the custody and posses- 
 sion of the plaintiff when taken Ijy the defendants, as they may be legally held 
 to be, the taking was a trespass for whicli the defendants must be answerable in 
 damages." 
 
 Where goods whicli have been levied upon and left in the custody of the 
 owner are wrongfully taken away, either the slieriff or the owner may maintain 
 trespass therefor; but a recovery by one will bar an action by the other (Brown- 
 ing v. Skillman, 4 Zabr. 351).
 
 520 WHO MAY MAINTAIN THE ACTION. § 524, 
 
 knowledge of the facts, levies upon the goods as the property 
 of a third person.^ Williams agst. Lewis ^ was an action of 
 trespass for tin ware w^hich the plaintiff had delivered to one 
 Warner, a pedlar, to carry to Farmington, but which Warner 
 took to a different place and sold to the defendant. The 
 court said: "The question of fact in this case is, whether 
 there was a sale of the property by the plaintiff to Warner 
 before it was disposed of to the defendant. If the plaintiff 
 did not sell the property to Warner, the possession of Warner 
 is to be considered the possession of the 2:)laintiff, and is suf- 
 ficient to enable him to maintain the action."'^ A. commis- 
 sioned her brother to buy a cow for her, which he did a fort- 
 night afterward. But, before the cow had either come to A.'s 
 hands or she had assented to the purchase, the cow was taken 
 by the defendant. It was held that A. had such a property 
 in the cow as would enable her to maintain trespass.^ 
 
 § 524. Within the rule under consideration, when the 
 owner of a chattel gratuitously permits another person to use 
 it, the owner may maintain trespass for the taking of it while 
 it is being so used.^ Accordingly, where a father permitted 
 his daughter to have the use of cows, which, or their increase, 
 ■continued in her possession several years, it was held, that 
 the father might maintain trespass for taking them, or their 
 young, from the daughter's possession.^ f And the same 
 
 ' Gauche v. Mayer, 27 111. 134. '' 3 Day, 498. 
 
 ' Thomas v. Pliillips, 7 Car. & P. 573. 
 
 ' Lotan V. Cross, 2 Camp. 464; Root v. Chandler, 10 Wend. 110. 
 
 * Orser v. Storms, 9 Covven, 687. 
 
 * Chaffee v. Sherman (26 Vt. 237) was an action of trespass for certain goods 
 taken on a writ of attachment against one Lampson. It appeared that the goods 
 were furnished by the phdutiii to Lampson to peddle on commission, the plaintiff 
 reserving the right to retake the goods at any time, and Lampson to return them 
 when he pleased. A sum of money equal in amount to the goods taken by Lamp- 
 son the first time was deposited by him with the phiintitt" as collateral security. 
 After Lampson had sold part of the goods, the plaintiff let him have more goods 
 on the same terms, for which he paid thirty-nine dollars, which only lacked a 
 few dollars of being all that was due for the goods taken at tliis time. These- 
 
 -were the goods which were the subject of the present action. It was held that 
 the plaintiff was entitled to recover the balance unpaid on the second bill of 
 goods, after deducting the thirty-nine dollars and interest. 
 
 t Where a father let his daughter have a cow in payment for her work
 
 § 624. GENERAL RULE. 521 
 
 was held in an action by the owner of a horse taken on an 
 execution against the person to whom the owner lent the 
 horse.-' Walcot v. Pomeroy^ was an action of trespass for 
 taking and carrying away household furniture, which was 
 lent by the plaintiff to one Richardson, his brother-in-law. 
 Nothing was agreed to be paid for the use of the furniture^ 
 thousfh Richardson testified on the trial that he calculated to 
 pay what was reasonable. The furniture was seized under 
 an attachment sued out by the defendant against Richardson. 
 A verdict was found for the plaintiff in the court below, sub- 
 ject to the opinion of the Supreme Court, which held, that he 
 
 family, she being of age. but kept the cow, and afterward, with her consent, 
 sold it and delivered to her the avails of the sale, with which, by her direction, 
 he bought another cow ; it was held, that in the absence of fraud in fact, the 
 cow last purchased was not liable to attachment for the debts of the father, 
 though he bought the cow in his own name and, apparently, on his own account, 
 and it had always been in his possession (Ridout v. Burton, 27 Vt. 388). 
 
 Where a son purchases a farm in order to provide a home for an indigent 
 father, and buys stock and farming implements for it, knd the father lives and 
 labors on the farm, the products thereof are not liable to seizure for the father's 
 debts. In Brown v. Scott, 7 Vt. 57, it was urged in behalf of the defendant 
 that the father was a tenant to the son, and so became the owner of all the crops 
 on the place, and that the same were subject to be taken for the father's debts. 
 CoUamer, J. : " The court will be slow to give to a lonajide support furnished 
 by a son to a father such artificial names and technical character as shall, in 
 effect, discourage and frustrate such praiseworthy objects. To create a tenancy 
 there must be some parting with the possession, so as to give exclusive occupancy 
 to the tenant, at least for the time being. Nothing of this kind was shown in 
 this case. The father was suffered to reside there. Now, to hold this a tenancy, 
 and make the crops there the property of the father, would be forcing upon the 
 affair a character never designed by the parties, and evidently at war with their 
 legitimate design. The true object is obvious, and the legal character should 
 be holden by the courts to correspond ; that is, the plaintifi" is the owner of the 
 farm, stock, tools and crops, and has never parted with j)ossession. He is, by 
 his father, in constructive possession, with the right of taking personal and 
 actual possession at any time. This entitles him to maintain trespass. It ap- 
 pears the plaintiff had said, if more could be raised than was necessary for the 
 father's support, he was willing it should go on his debts. This did not vest 
 the title in tiie father, or subject it to attachment as his. It does not appear 
 that even enough for the support was raised. Nor do the facts offered by the 
 defendant seem to alter the case, had tlie proof been admitted. He offered to 
 show that the father had sold off the crops, and had purchased stock on to the 
 farm, forwiiich the son gave his note. This only tended to prove him the agent 
 of the plaintiff, not owner of the property. Had any testimony been offered 
 tending to prove that the purchase money had, in whole or in part, belonged to 
 the father, or that lie had been for a long time in exclusive possession, and by 
 valual)le labor added greatly to the farm and stock, and was secreting his prop- 
 erty from his creditors with his son's assistance, it would have deserved a differ- 
 ent consideration and course of proceeding; but the case is destitute of all 
 circumstances of that character." 
 
 ' Long v. Bledsoe, 3 J. J. Marsh. 307. ' 2 Pick. 121.
 
 522 WHO MAY MAINTAIN THE ACTION. § 524. 
 
 had sufficient possession of the articles to entitle him to main- 
 tain the action.* Staples v. Smith ^ was an action of trespass 
 for taking a horse alleged to be the property of the plaintiff. 
 It was proved that one Knox sold and delivered the horse to 
 the plaintiff, and at the same time gave him a ])ill of sale 
 containing these words : '• Said Staples, agreeing to let the 
 horse remain in Wm. N. Knox's hands till called for." The 
 defendant justified as an officer under a writ against Knox. 
 It appearing that the horse had not been " called for," it was 
 urged in defense that for that cause this action could not be 
 maintained. But a verdict having been found for the 
 plaintiff', a new trial was refused. Phillips v. Willard^ was 
 an action against a sheriff for seizing a paper making machine 
 belonging to the plaintiffs. It appeared that the plaintiffs, 
 who lived in Connecticut, had contracted with one Burbank, 
 residing in Worcester, Massachusetts, to construct for him a 
 machine, to 1)e paid for if it worked to Burbank's satisfaction ; 
 otherwise, to be taken back. The machine weighed several 
 tons, and it was carted in different parts by Burbank to 
 Worcester, according to agreement. It was set up by the 
 plaintiffs in Burbank's mill, and put in operation for experi- 
 ment before all the parts had arrived, but it did not work 
 well, and it was immediately thereafter attached by the de- 
 fendant as the property of Burbank. It was held, that the 
 plaintiff' 's possession was sufficient to maintain the action.f 
 
 ' 48 Maine, 470. = 16 Pick. 29. 
 
 * In Walcot V. Pomeroy, supra, the ^"pi'eiiie Court said: "This action may 
 be sustained unless the plaintiff had parted with his right to reclaim the furni- 
 ture; and it does not appear tliat he had. If it had been leased to Richardson, 
 so that the plaintiff could not claim it and take possession when he pleased, tres- 
 pass would not lie for him against the officer or any one else, because he would 
 then have parted with the actual possession, and would not have had a construc- 
 tive possession. But there does not appear to have been any lease here. There 
 was nothing more than an indulgence; so that if the plaintiff had at any time 
 taken the furniture, Richardson could have maintained no action against him. 
 It is true, Richardson testified that .he expected to make the plaintiff a compen- 
 sation for the use of the furniture. But there was no agreement between them 
 to that effect, and it docs not appear that the plaintiff expected to receive any 
 compensation. The plaintiff had a right to the possession, without any demand 
 on Richardson." 
 
 t In Phillips V. Willarc], supra, the court said: "The first and most import- 
 ant question in the case relates to the property in the machine. It was a struc-
 
 § 525. GENERAL RULE. 523 
 
 § 525. Where a borrower deposits with a lender personal 
 property as security for a loan, the lender having the right 
 
 ture of great weight, and could not be finished at their own building, but must 
 have been in the same local situation before as after delivery; and, when com- 
 pleted, no actual, and perliaps no symbolical delivery, would liave been neces- 
 sary. The parts were to be removed by Burbank to his works, but the possession 
 for'that purpose was not a delivery. The plaintifi's workmen were to follow the 
 machine to Burbank's land and there complete it, and they accordingly did so, 
 and nearly finished it before the attachment. It was put in operation as an ex- 
 periment, and operated to some extent, but important parts were wanting to 
 make it work advantageously. The plaintiffs would not have been justified la 
 oflering it to Burbank as finished ; and if they had refused to complete it, Bur- 
 bank could not have maintained trover for it, but his remedy would have been 
 on his contract. On the whole, we are all satisfied that the evidence did not 
 show a transfer of the property to Burbank. The other question is, whether an 
 action of trespass will lie for the plaintiffs. The objection on the part of the 
 defendant is, that they had not such possession as will enable them to maintain 
 the action. We havenot deemed this point so clear as the main point. The 
 machine was in the building of Burbank, which was in his possession. Accord- 
 ing to his agreement, however, the plaintifl"s had a right to go there to finish 
 the machine, and he could not maintain trespass quare clausum against them. 
 We think it was so far within the control and in the possession of the plaintiffs 
 under their contract and the permission of Burbank, that the action will lie. If 
 a watchmaker puts up a clock in a house, under an agreement that if it shall 
 keep good time the owner of the house will purchase it, we think that until the 
 trial is made the watchmaker remains in possession, so as to be able to maintain 
 trespass." 
 
 The following cases sustain the principle referred to in the text : In an action 
 of trespass against a deputy sherift" for taking, by virtue of an execution, the 
 plaintiff's only cow, which was exempt from seizure under the statute, it ap- 
 peared that the cow had been loaned by the plaintiff to one Whitney for the 
 term of a year, and that the defendant, after levying upon the cow, left her in 
 the possession of Wliitney until the end of the year, and then drove her away 
 and sold her. It was held, that the asportation of the cow was a fresh trespass, 
 for which the action might well be maintained by the plaintiff, he being then in 
 the constructive possession of the cow (Keyes v. Howe, 18 Yt. 411). Whitcomb 
 V. Tower, 12 Mete. 487, was an action of trespass against a constable for attach- 
 ing wool and lambs, the property of the plaintiff, on a writ against Hix and 
 Stafford. It appeared that the plaintift" leased to the latter his farm for one year, 
 and also " certain personal property, to wit, sixty -two sheep, the same sheep to 
 be returned if living, or enough to make the number good, at the end of the 
 year; the wool now growing on the sheep, and the lambs, if any, which the 
 sheep may have this spring, I shall claim to remain my property until the 
 worth of it and them is paid me in money towards the use of the place." The 
 wool and lambs w ere taken by the defendant before any part of the rent reserved 
 in the lease had been paid. The judge ruled that the plaintiff was entitled to 
 recover the value of the wool and lambs, and the jury, having found accordingly, 
 the Supreme Court refused to disturb the verdict. The court said : '• The arti- 
 cles of agreement made between the ])laintiff and Hix and Stafford clearly 
 enough indicate the intention of the parties as to the property, and the wool and 
 lambs vesting in the plaintitT until the jjayment of the rent. The only question 
 is. whether such agreement can legally have the eflect intended to be given to it 
 by the jtarties thereto. We think tiie present not like the case of Butterfield v. 
 Baker, /) Pick. 523, where an agreement that the future crops should be subject 
 to be taken by tlie lessor at all times for the payment of any rent that might be 
 inarrear, was held, not to give priority over an attaching creditor; the lessor not 
 having entered upon the premises, and taken possession of the produce under
 
 524 WHO MAY MAINTAIN THE ACTION. § 525. 
 
 to sell the property, and after deducting the amount of the 
 loan, to pay the balance to the borrower, and the lender ex- 
 changes the property for other property, such other property 
 does not as of course belong to the lender so*as to be subject 
 to attachment for his debts, tlie borrower having an option 
 within a reasonable time to ratify or ]'epudiate the exchange. 
 If the borrower, within a reasonable time, bring an action for 
 the taking of sucli other property against one W'ho has at- 
 tached it as the property of the lender, that will be deemed a 
 ratification of the exchange.^ * 
 
 the stipulation that he might do so for rent in arrear. Such entry and taking- 
 possession "were there necessarj' to vest the property in the lessor. The present 
 case falls more properly within the princiijles of the cases of Lewis v. Lyman, 
 22 Pick. 437, and Barrett v. Pritchard, 2 Pick. 512. In this case, as in those, 
 the property in the articles in controversy remained in the lessor until the pay- 
 ment of the rent. Under the form of the lease, it required no further act of the 
 lessor to vest in him the property in these articles, and he may therefore hold 
 them, as against an attaching creditor. He had the right of property, and the 
 constructive possession, and may therefore well maintain this action for the wool 
 and lambs " (citing Smith v. Atkins, 18 Vt. 461). 
 
 ' Strong V. Adams, 30 Vt. 221. 
 
 * This was an action of trespass for a wagon which was attached as the prop- 
 erty of one Kimball. The plaintiff had pledged a horse and harness to Kimball 
 for the security of twenty-one dollars and fifty cents advanced by him, with the 
 right to sell the property and pay over the balance of the price to the plaintiff. 
 Kimball exchanged the property for a wagon and two dollars and fifty cents in 
 money. The court below held, as matter of law, that this vested the title of the 
 Avagon in Kimball, and that it was immediately attachable as his property. 
 Judgment having accordingly been rendered for the defendant, the Supreme 
 Court, in setting it aside, said: "If Kimball exceeded his authority in making- 
 the exchange, which, as the facts are stated, would seem to be the case, unless 
 there was something in the evidence or course of dealing to show that Kimball 
 had a larger discretion than an ordinary factor, then it would be optional with 
 the plaintiff cither to adopt or repudiate Kimball's act in making the exchange. 
 And his bringing the action is regarded as a sufficient ratification of the act 
 ordinarily, as if he had brought suit to recover his onginal property it would 
 liave been a repudiation of the exchange. What other facts may be put in the 
 case hereafter we cannot anticipate. It will, no doubt, be competent to show, 
 by other evidence, that the plaintiff did repudiate the act of Kimball in making 
 the exchange, or that he did not ratify it in a reasonable time, perhaps. But as 
 there is nothing in this case to show any delay, or that any time intervened be- 
 tween the exchange and the attachment, and as the decision of the court goes 
 upon the ground that the plaintiff had no rights, either absolute or contingent, 
 in the property obtained by the exchange, we think there should be a new trial."' 
 
 A son has no authority as such to lend his father's property, and there is no 
 presumption that such authority has been given to a son. It may be shown that 
 authority to lend tools and the like has been given to a son exjoressly, or such aa 
 authority may be inferred from the conduct of the father, tending to show that 
 he reposed such confidence and intrusted such discretion in the son, as by show- 
 ing that on other occasions the son had lent the father's property of a similar 
 kind, and the father, upon the facts coming to his knowledge, approved of what 
 
 I
 
 § 526. GENERAL KULE. 525 
 
 § 526. The purchaser of goods by bill of sale may main- 
 tain an action against the vendor for appropriating them, 
 though they were not delivered. Edwards v. Edwards ^ was 
 an action of trespass for a hog. The plaintiff introduced in 
 evidence a bill of sale to him of the hog in question, signed 
 by the defendant. It was admitted that at the time of ex- 
 ecuting the bill of sale the defendant was the owner of the 
 animal, and that he executed and delivered the bill of sale 
 upon sufficient consideration, but did not deliver the hog, 
 and that he soon after killed it for his own use. The only 
 question raised was, whether the bill of sale, without delivery 
 of the hog, vested sufficient title in the plaintiff' to enable 
 him under the circumstances to maintain the action. The 
 plaintiff' having recovered in the County Court, the judgment 
 was affirmed by the Supreme Court. Where goods are pur- 
 chased by two persons, it is not necessary to enable them 
 to join in an action of trespass for taking and carrying away 
 the goods that the bill of sale should have been made out to 
 both. If made to one who agreed to purchase for both, both 
 will take, and by bringing the action they show their intent 
 to treat the goods as joint property.'^ 
 
 he had done. But without such proof, the son stands in the same position as a 
 stranger (Jolmson v. Stone, 40 N. Hamp. 107). 
 
 ' 11 Vt. 587. 
 
 * In BuUer's Nisi Prius, 258, there are two cases cited — Baker v. Loj-d. before 
 Ch. J. Holt, and Cowell v. Lane, before Bailer, ,J. — in which it was held that if 
 a man make a bill of sale to one creditor, and afterwards to another creditor, of 
 the same property, and deliver possession to neither at the time, and afterwards 
 the creditor who has the second bill of sale gets the possession, and the creditor 
 having the first bill of sale subsequently takes the property from him, the latter 
 can maintain no action against the former. The reason given is, that though 
 both bills of sale are fraudulent against creditors, yet both bind the vendor, and 
 the elder title shall prevail. 
 
 Kittredge et al. v. Sumner, 11 Pick. 50, was an action of trespass against an 
 oflScer for wrongfully attacliing certain mats, the property of the plaintiffs. It 
 appeared that the plaintiffs and Hodges & Co. purchased 20,000 mats, which 
 Hodges & Co. agreed to store for six mouths free of expense to the plaintiffs, 
 they agreeing to pay their proportion of the cost of removing the mats into 
 Hodges & Co.'s loft, and the mats were accordinglj"^ removed. A few months 
 afterwards a new arrangement was made, and a bill of sale given to the i^laintifis 
 of the wiiole of tlie 20,000 mats, they agreeing to pay for their storage until they 
 were fully paid for. At the time of the last contract, and previously, the plaint- 
 iifs paid to Hodges & Co. various sums amounting to $1,104 50, which was in- 
 dorsed on the last bill of sale. The last arrangement was made by Hodges & Co. 
 to prevent the mats from being attached by their creditors, but the plaintifls
 
 52G WHO MAY MAINTAIN THE ACTION. § 527. 
 
 § 527. When goods sold are not present at the time, so 
 as to be actually delivered, and there is no symbolical de- 
 livery, and a stranger, or one without legal right, takes the 
 property before the vendee, by exercising ordinary care and 
 diligence, can obtain actual possession of it, the law will pro- 
 tect it for the vendee, and by reasonable intendment will 
 consider the possession to be constructively in the vendee as 
 against such stranger. Accordingly, w^here in an action of 
 trespass for taking personal property, it appeared that the 
 plaintiff w^as the hona fide purchaser of it on Saturday, and 
 that on Sunday a creditor of the vendor, without any legal 
 right, seized and carried the property away, and so prevented 
 the plaintiff from taking possession of it, it was held that 
 such creditor was a trespasser, and could not purge the orig- 
 inal wrong by a subsequent attachment of the property, and 
 that the measure of damages should be the value of the prop- 
 erty taken/ '"" Certain goods were consigned to a commis- 
 
 had no knowledge of tliis intent. It was held, that no new delivery was neces- 
 sary on the second sale, the plaintiffs having at the time an actual or constructive 
 possession of the mats, and that they were entitled to recover. Held, further, 
 that Hodges & Co. had not an attachable interest that could be set up by the 
 officer in defense of the action, citing Holly v. Huggeford, 8 Pick. 73. 
 
 In an action of trespass for a quantity of hay which the plaintift', as deputy 
 sheriff, had attached as tlie property of one Woodman, it appeared that the de- 
 fendant had purchased a bay of hay in the barn of Woodman, and removed part, 
 and left the residue in the bay in charge of Woodman's hired man. It was 
 held that the plaintifi' was entitled to recover, tliere not having been a sufficient 
 change of possession of the hay to ])rotect it from the attachment (Sleeper v. 
 Pollard, 28 Vt. 709). 
 
 A, rented his farm and stock to B. by a written agreement, B. to occupy two 
 years, and by way of rent to deliver to A. on the farm one-half of all the crops 
 except such as should be fed to the stock on the place, the crops to be divided 
 by weight and measure. Before any portion of the crops was delivered to A., 
 B. and C. carried them away and consumed them. It was held that A. had not 
 such a title to the crops in the absence of delivery as to enable him to maintain 
 trespass against B. and C. for the taking (Ilurd v. Darling, 16 Vt. 377). 
 
 Where a permit to cut timber is assigned, the assignee may maintain trespass 
 against an officer for attaching the timber after it is cut (Sawyer v. Wilson, 61 
 Maine, 529). 
 
 ' Parsons v. Dickinson, 11 Pick. 352. 
 
 * Parsons v. Dickinson, supra, was an action of trespass for taking and carry- 
 ing away a chaise and harness. It appeared that one Edwards, being in embar- 
 rassed circumstances and about to leave the State, abovit eleven o'clock on 
 Saturday night called the plaintiff from his bed and sold him the chaise and 
 harness; that the following afternoon or evening the plaintiff went to Edwards' 
 house to get the property, but found it gone; that William Dickinson, one of tlie 
 defendants, took it away Sunday afternoon, and that on Monday morning it was
 
 § 528. GENERAL RULE. . 527 
 
 sion merchant for sale, and he, after selling them, bought 
 them on his own account, and afterward discoverino- 
 that they were defective, the original owner was notified of 
 the fact and asrreed to take them back. The factor accord- 
 ingly charged the original owner with them on his books, 
 but the goods remained in the factor's possession. It was 
 held that this was suflicient to revest the property in the 
 -original owner, the possession of the factor being the posses- 
 sion of his principal, and that the latter might maintain tres- 
 pass against a wrong-doer for taking them.^ 
 
 § 528. Where goods are assigned as security for advances 
 of money, upon trust to permit the assignor to remain in 230s- 
 session of them until default in payment at the time stipu- 
 lated, and upon further trust to sell them upon such default 
 being made, the assignee has a sufficient possession to enable 
 him to maintain tresj)ass against a wrong-doer, such an assign- 
 ment, though void as against creditors, being good as between 
 the parties, and as between either party and a stranger. So 
 likewise, one who holds personal property under a valid 
 assi2:nment for the benefit of certain creditors of the assiajnor, 
 may maintain an action of trespass against a creditor not in- 
 cluded in the assignment who takes the property away. 
 
 attached by Zebiua Dickinson, a deputy sheriff, on a writ in favor of William 
 Dickinson, who was a creditor of Edwards. On the foregoing facts, it was held 
 that the plaintiff had sufficient possession of the property to entitle him to main- 
 tain the action. The court said: "If this should be considered as a question 
 between a lona fide vendee and an attaching creditor, it would be clear for the 
 latter, for the creditor attached the goods before the vendee had perfected his 
 title by having an actual delivery of them to him. The case cited of Lanfear v. 
 Sumner, 17 Mass. 110, would be conclusive upon the matter. The defendant, 
 William Dickinson, claims in virtue of an attachment made for him by the other 
 defendant, Zebina Dickinson, and they contend that the attachment was made 
 on Monday after tlie sale to the plaintiflF on Saturday, and before the vendee ob- 
 tained the actual possession of the projierty. But the plaintiff contends that the 
 defendants are not in a situation to avail themselves of the rule laid down in the 
 case of Lanfear v. Sumner, because the creditor took the property on Sunday, 
 after the sale, without any legal right, and removed and secreted it from the 
 place where the vendee was to have received it. And the action is brought to 
 recover damages for that trespass. The officer cauuot be considered to be in a 
 more favorable situation than the creditor in whose favor, and by wliose direc- 
 tion, the attachment was made, immediately after the expiration of the Sun- 
 day. Now it is very clear, that the sale as between the vendor and vendee was 
 good before the delivery.'' 
 
 ' Holly V. Huggerford, 8 Pick. 73.
 
 528 WHO MAY MAINTAIN THE ACTION. § 529. 
 
 The owner of two horses agreed with certain of his creditors 
 that a third person, who then had the custody of the horses, 
 should keep them till a certain day in the following week, 
 and then sell them at auction for the benefit of said credit- 
 ors, the avails to be applied first to extinguish a certain 
 demand and the balance to be paid to the other creditors 
 according to the order of their attachments. The person 
 who had charge of the horses was notified of the ai'range- 
 ment, and agreed to execute it on his part. He employed 
 one of said creditors to keep the horses for him till the day 
 of sale ; but previous thereto, another creditor attached them 
 and took them away. _It was held that the contract under 
 which said third person was appointed to sell the horses was 
 in substance an assignment of the property for the satisfac- 
 tion of particular debts ; and being founded on a legal and 
 sufficient consideration, and accompanied with actual posses- 
 sion, was entitled to protection against the interference of 
 other creditors ; and that, therefore, he might maintain tres- 
 pass for such attachment.^ 
 
 2. In case of goods talceii from officer. 
 
 § 529. An officer after levying upon goods and chattels, 
 has a sufficient property in them to enable him to maintain 
 trespass against any person who takes them away ; ^ but 
 not if the process under which he claims to hold the goods 
 is void;^ nor where he has consented to their removal;^ nor 
 if, after seizing the goods, he has abandoned them, thereby 
 losing his lien.^ But the officer's neglect to sell the property 
 pursuant to his advertisement, will not defeat his right of 
 action against a stranger for the disturbance of his posses- 
 sion; ^ nor the fact that the execution has not been returned, 
 the property being taken from the officer's possession before 
 
 ' Mason v. Hidden, 6 Vt. 600. 
 
 "- Lockwood V. Bull, 1 Cowcn, 323; Ca?her v. Peterson, 1 South, 317. 
 
 ' Earl V. Camp, 16 Wend. 563. * Ibid. 
 
 '' Tain tor v. Williams, 7 Conn. 371. ' Earl v. Camp, supra.
 
 § 529. IN CASE OF GOODS TAKEN FROM OFFICER. 529 
 
 the return day ; ^ nor that the property attached has been 
 assigned by the debtor to the creditor in discharge of the 
 judgment, the officer's liability for the property still con- 
 tinuing ; ^ nor that the creditor agreed with the officer who 
 was about to attach the property, that he would protect him 
 from all liability.^ * The defendant cannot be admitted to 
 prove that the goods were mortgaged previous to the levy 
 or that they belonged to a third person, unless he connects 
 himself with the outstanding title ; nor can he be allowed to 
 show that the goods were exempt, such an objection being 
 proper only for the defendant in the process/ But an officer 
 cannot maintain an action founded on a right acquired after 
 a return of the execution by which he has by order of the 
 plaintiff formally released the levy. This being an official 
 act, must be held to have subverted all the rights of the 
 officer acquired by the levy thus explicitly and absolutely 
 abandoned, as well as the rights of the plaintiff which grew 
 out of the levy.^ f 
 
 ' Sewell V. Harrington, 11 Vt. 141. ^ Fletcher v. Cole, 26 Vt. 170. 
 
 ' Huntley v. Bacon, 15 Conn. 367. * Gibbs v. Chase, 10 Mass. 125. 
 
 ' Marsh v. White, 3 Barb. 518. , 
 
 * In Huntley v. Bacon, supra, which was an action of trespass de lonis 
 asportatis, brought by an officer for the taking away of property which he held 
 under attachment, the defendants claimed that they had proved that the attach- 
 ing creditors or some of them for whom the officer had attached the property in 
 question had agreed to save him harmless for not removing the property at- 
 tached ; and they urged that the interest of the plaintiff in the cause of action 
 was thereby extinguished. The court said: "The claim is a novel one. If 
 sanctioned, it goes to the extent of holding that an officer can in no case recover 
 for a trespass committed upon, or even for the destruction of property attached 
 by him, if the circumstances of the case show that he is not liable to the attach- 
 ing creditor. This doctrine cannot be supported by principle nor by authority. 
 An officer is never liable if he has followed the law and has been guilty of no 
 culpable negligence ; and it will not do to say that in all cases where the officer 
 is justified by the law, a stranger — a wrong-doer — may invade his possession and 
 take aw-ay or destroy the property thus in his legal custody. The gist of the 
 action of trespass is the force and injury to the lawful possession of the 
 plaintiff"; and the wrongful act of a trespasser is not in any wdj modified, ex- 
 tenuated, or excused by reason of any agreement which such plaintiff, if an 
 officer, may have made with attaching creditors." 
 
 t In all cases in which a deputy sheriff has legally done his duty, and the 
 law visits on him a continued and ultimate liability, the same law must sustain 
 him in an action necessary to his protection. Therefore, if a deputy sheriff 
 attach property and take it into his possession, and it is unlawfully taken from 
 him, he must have an action in his own name, as he is ultimately answerable 
 (Stanton v. Hodges, 6 Vt. G4). But in New York it was held that he could not 
 
 Vol. I.— 34
 
 530 WHO MAY MAINTAIN THE ACTION. §§ 530, 531. 
 
 § 530. In such action it is enough for the officer to show, 
 as against strangers, the seizure under the execution, without 
 producing the judgment ; possession of the goods thus ac- 
 quired by the officer being sufficient to enable him to main- 
 tain trespass against a third party for taking them away 
 without right.^ But if the action is brought by the officer 
 for the benefit of the phiintiff in an attachment, the judgment 
 must be proved.^ And the same must be done where the 
 officer has a mere constructive possession created by the 
 levy of an execution in an action for the benefit of the exe- 
 cution creditor.'^ 
 
 3. Wliere goods are taken from a servant. 
 
 § 531. When chattels are taken from a servant, they are 
 taken from the legal possession of his master, who alone can 
 maintain trespass and recover damages against the taker.* 
 
 maintain an action in his own name against persons who wrongfully took prop- 
 erty from him which he had seized by virtue of an execution (Terwilliger v. 
 Wheeler, 35 Barb. 620). 
 
 Although the absolute owner of property, or an officer who has levied on it, 
 and is therefore a special owner, may maintain an action of trespass for an un- 
 lawful intermeddling with such property by a stranger — and it is no defense in 
 the latter case that there may be property enough remaining to satisfy the ex- 
 ecution — yet it is otherwise when the suit is brought not for a direct injury to 
 the property itself, but to recover the consequential damages sustained by a 
 judgment and execution creditor, occasioned by the removal of property upon 
 which he had acquired a lien by the levy of his execution. " For example, if a 
 sheriff levy upon property to the value of $300 to satisfy an execution of $100, 
 and a stranger should seize and convert a part of it worth $50, it cannot be 
 doubted that the oflicer might recover the value of the property thus wrongfully 
 taken in trespass or trover. But if the plaintiff in the execution should sue an 
 individual to whom the general owner (the defendant in the execution) had 
 transferred a part of the property subsequent to the levy, for removing it he 
 must prove that he necessarily suffered damage by the act complained of; that 
 is, that there was not property enough left to satisfy liis execution. Thus in 
 the case of Lane and Wife v. Hitchcock, 14 Johns. 213, it was held that a mort- 
 gagee could not recover against one who had diminished the lien of his mort- 
 gage by removing a building from the premises bound by the mortgage, unless 
 he could show that he suffered damages as a necessary consequence of the act. 
 And he was required to show, not only that the removal of the building left the 
 premises a scanty security, l)ut that the mortgagor, who was personally bound, 
 was insolvent. In the progress of this opinion, the court comment upon the 
 case of Yates v. Joyce, 11 Johns. 140, and say that in that case the injury was 
 shown to have been the occasion of inevitable damage to the plaintiff, and thus 
 distinguish it from the one then under consideration" (Gridley, J., in Marsh v. 
 White, 3 Barb. 518). 
 
 ' Smith V. Burtis, 6 Johns. 197. " Earl v. Camp, 16 Wend. 563. 
 
 ^ 15 Conn. 267. ■• Brownell v. Manchester, 1 Pick. 232.
 
 § 532. IN THE CASE OF A CORPORATION. 531 
 
 Where the owner of goods requested a cartman to carry 
 them to his own house to keep for him until the next day, 
 it was held that, as the cartman had no interest or claim to hold 
 the goods coupled with his possession, the rule of law ap- 
 plied that the general property drew after it the possession, 
 and that the owner of the goods might therefore maintain an 
 action of trespass against a third person for taking them 
 away.^ * 
 
 4. In the case of a covporation. 
 
 § 582. The possession of an officer of a corporation is the 
 possession of the corporation, and when chattels belonging 
 to the corporation are taken from him, the corporation is 
 alone entitled to sue for and recover damages for the taking, 
 unless the officer is authorized by statute to sue in his own 
 name.^ f So on the other hand, trespass will lie against a 
 corporation for seizing goods and appropriating them;^ 
 
 ' Thorp V. Burling, 11 Johns. 285. " Perkins v. Weston, 3 Cusb. 549. 
 
 = MaiincI V. Monmouthshire Canal Co. 2 Dowl. N. S. 113; 1 Car. & M. 606. 
 
 * Stanley v. Gaylord, 1 Cush. 536, was an action of trespass for taking and 
 driving away a cow. The cow belonged to the plaintiff's intestate, and was in 
 the possession of one Franklin, without any authority in him as against the in- 
 testate, to retain or dispose of her. The defendant took the cow, claiming her 
 under a mortgage made to him by Franklin. No evidence seems to have been 
 given of a delivery by Franklin, or any question made at the trial concerning 
 it. The court said: " If Franklin was the bailee of the plaintiff's intestate, the 
 taking by the defendant, without delivery, subjected him to an action of tres- 
 pass by the intestate; and if Franklin was the mere servant of the intestate, the 
 defendant became a trespasser by taking the cow, even though Franklin had 
 delivered her to him.. The question is whetlier the plaintiff could maintain trover 
 in this instance, without first demanding a return of the cow. If he could, then 
 he may maintain trespass; for whenever the taking of goods is wrongful, the 
 taking is a conversion, and trespass, replevin, and trover without a demand, are 
 concurrent remedies for the owner, if lie has the right of immediate possession." 
 Wilde, J., dissenting, said: " I am of opinion that the defendant is not liable in 
 this form of action; nor would he be liable in an action of trover, for he has 
 not been guilty of a conversion of the, property. The conversion was by Frank- 
 lin, against whom an action of trover might be well maintained; and if he is 
 not able to respond in damages, the loss ought to be borne by the plaintiff, who 
 confided tlie property to his custody, rather than by the defendant who has been 
 guilty of no wrong. But no loss need be sustained by the plaintiff", for after a 
 demand of the defendant and his refusal to restore the property, an action of 
 replevin in the detinet would well lie." 
 
 For liability of master for wrongful acts of servant, see ante^ §§ 42, et seg. 
 
 t Perkins v. Weston, supi-a, was an action of trespass for taking and carrying 
 away school registers. At the trial in the Common Pleas, it appeared that the 
 defendants claiming to be the school committee took the registers from the
 
 532 WHO MAY MAINTAIN THE ACTION. § 533^ 
 
 5. Where the goods belonged to a jperson deceased. 
 
 § 533. Where personal property which belonged to the 
 testator at the time of his death is afterward tortiously taken 
 or injured, as it vests on the death of the testator in his per- 
 sonal representative, the wrong is done to him, and he can 
 sue in his own name without calling himself executor.^ * So 
 
 plaintiffs. The defendants insisted that the registers were the property of the 
 town, and that plaintiffs had no such property in them as entitled them to main- 
 tain the action. The judge so held, and a verdict was found for the defendants. 
 The Supreme Court said: " We are of opinion that the ruling was right. The 
 school committee has no property general, or qualified, in the school registers, 
 and no such possession thereof, distinct from the possession of the town, as is 
 required by law in order to enable them to maintain this action and recover dam- 
 ages to their own use, but only the custody or charge of the registers as ofiicers 
 and servants of the town." The law in Massachusetts, when the foregoing ac- 
 tion was brought, was as follows : By the St. of 1838, ch. 105, the board of 
 education were directed to prescribe a blank form of a register to be kept in 
 schools, and the secretary of the State was directed to forward copies of the 
 same to the school committees who were directed to cause registers to be faith- 
 fully kept, according to the form prescribed. By St. 1845, ch. 100, the secretary 
 of the State was directed to cause blank school returns and registers to be for- 
 warded to the sheriffs of the several counties, who were directed to forward them 
 to the town clerks of the several towns; and by St. 1845, ch. 157, the said secre- 
 tary was directed to transmit register books sufficient to last for five years or 
 more, instead of the single sheets for registers which were previously transmitted ; 
 and it was also enacted that no school teacher should be entitled to receive pay- 
 ment for his services, until the register for his school, properly filled up and com- 
 pleted, should be deposited with the school committee, or with some other per- 
 son designated by them to receive it. 
 
 ' Patchen v. Wilson, 4 Hill, 57. 
 
 * But this is not the case where the executor sues on a contract made with 
 the testator. There he must necessarily sue in his representative character; and 
 this is so, although the time for payment or performance had not arrived when 
 the testator died. In the case of a chattel, the representative may sue in lii& 
 own name, and then use the letters testamentary as a part of his claim of title. 
 But except upon a note payable to bearer, the representative cannot sue on a 
 contract made with his testator without calling himself executor. 
 
 In Keniston v. Little, 10 Fost. 318, the defendant, a deputy sheriff, seized 
 the cattle of the plaintifi' upon an execution against him, and sold them and 
 applied the proceeds in discharge of the execution. The question was, whether 
 the officer could justify the taking. It was contended by the plaintiff that, as 
 the judgment recited in the execution was "against Benjamin C. Keniston, of, 
 &c., administrator of the estate of James ^I. Knowltcu, late of, &c., deceased," 
 it was a judgment against the plaintiff in his capacity of administrator, and the 
 precept to cause the sum recovered '• to be levied of the goods, chattels, or 
 lands of said debtor," was limited to the goods, chattels, or lands of the debtor as 
 administi'ator of Kuowlton. If this view was correct, it was clear that the officer 
 could not justify a levy upon the private estate of the administrator, because 
 his precept gave him no authority to levy upon anything except the estate of the 
 intestate. It was held that the execution was to be regarded as running against 
 the plaintifi" in his individual character, and his own goods and estate were 
 liable to be levied upon under it. The court said: ''It is contended that an 
 execution for costs against an administrator, should run not against the goods 
 of the administrator himself, but asjainst the goods of the deceased in his hands
 
 § 533. WHERE GOODS BELONGED TO A PERSON DECEASED. 533 
 
 likewise, an administrator may maintain an action of tres- 
 pass for a wrongful seizure of the intestate's goods made be- 
 tween the death of the intestate and the grant of letters of 
 administration ; and a demand is not necessary prior to the 
 commencement of the action.^ In England, previous to the 
 statute of 4 Edw. Ill, no action ex delicto would survive to 
 the personal representative. That statute authorized an ex- 
 ecutor to maintain an action of trespass for chattels taken 
 and carried away in the life-time of his testator ; and the 
 principle by an equitable and somewhat liberal construction 
 of the statute extended to all cases of injury to personal 
 property. So on the other hand, whenever the property 
 taken by the testator or intestate was converted to his own 
 use, so as to become a part of his assets, an action in some 
 form would lie against his personal representative.- * Where 
 
 to be administered. If this is a proposition universally true, and without any 
 exception, it might furnish ground for aji argument that the execution must 
 have been issued in this case, either erroneously or irregularly. If there is any 
 case in which an execution may properly issue against the proper goods of an 
 administrator, then the execution here is well enough so far as the officer is con- 
 cerned. He is not bound to look beyond the face of the execution, and if there 
 is nothing there which shows it to have issued improperly, he is not bound to 
 inquire further. Where the cause of action is alleged to have arisen after the 
 death of the testator or intestate, and the executor or administrator might sue 
 in his own right, without describing himself as such, judgment may well be 
 entered against him de bonis jjropriis ; the allegation that he was executor or ad- 
 ministrator being considered in such case as a descriptio personce, so that upon 
 the face of the execution there was nothing that indicated any error or irregu- 
 larity. If the process here did issue either erroneously or irregularly, the court 
 having jurisdiction, it is not void, but is at most voidable. If erroneous, a party 
 even may justify under it whatever was done by virtue of it while it was in 
 force; and if irregular, it is a justification for the party until set aside. Much 
 more must it be so, in the case of an officer " (citing Blanchard v. Goss, 3 N. 
 Hamp. 491 ; Pilsbury v. Hubbard, 10 lb. 224). 
 
 ' Hutchins v. Adams, 3 Maine, 161; 1 Chitty's PI. 166; Tharpe v. Stallwood, 
 5 Man. & G. 760. 
 
 * Hambly v. Trott, Cowp. .37 1 ; Mellen v. Baldwin, 4 Mass. 480; Cravath v. 
 Plympton, 13 lb. 454; Holmes v. Moore, 5 Pick. 257; Towle v. Lovet, 6 Mass. 
 394. 
 
 * By 25 Edw. 3, c. 5, the benefit of the statute is extended to executors of 
 executors. 
 
 The New York statute (Rev. Sts. 5th ed. p. 202, § 4), provides that execu- 
 tors and administrators shall have actions of trespass against any person who 
 shall have wasted, destroyed, taken or carried away, or converted to his own 
 use, the goods of their testator or intestate in his life-time. They may also 
 maintain actions for trespass committed on the real estate of the deceased in his 
 life-time. This New York statute was borrowed from 4 Edw. 3d, ch. 7, which 
 had made a similar provision, by the equity and liberal construction of whicli it
 
 534 WHO MAY MAINTAIN THE ACTION. § 534. 
 
 an administrator refuses or neglects, upon request made, to 
 allo^v property to be appraised and set apart for the widow, 
 she cannot maintain trespass against him, the widow having 
 neither a general or special property in any particular goods 
 until after the election and appraisement.^ Although the 
 goods of a testator in the hands of an executor cannot be 
 seized under an execution against the executor to satisfy a 
 judgment debt due from the executor in his own right ; yet 
 if the executor has committed a devastavit, and the goods 
 have been converted to his own use, the executor cannot 
 justify his own misconduct by saying that the goods do not 
 belong to him, but to his testator.^ 
 
 0. Whe?'e propetiy is 'mortgaged. 
 
 § 534. By 'the general rules of law, a mortgage of goods 
 is a transfer defeasible, indeed, on a condition subsequent, 
 still a transfer which vests the general property in the mort- 
 gagee. When there is no express stipulation to the contrary, 
 the right of possession follows the right of property, and the 
 mortgagee may maintain an action of trespass against one 
 who wrongfully takes it away, without giving notice to the 
 
 ■was extended to almost every injury done to the personal estate of the testator 
 before his death. 
 
 The New York statute further provides that "any person, or his personal 
 representatives, shall have actions of trespass against the executor or adminis- 
 trator of any testator or intestate who in his life-time shall have wasted, de- 
 stroyed, taken or carried away, or converted to his own use, the goods or chat- 
 tels of any such person, or committed any trespass on the real estate of any such 
 person. The executors and administrators of every person who as executor 
 either of right or in his own wrong, or as administrator, shall have wasted or 
 converted to his own use any goods, chattels or estate of any deceased person, 
 shall be chargeable in the same manner as their testator or intestate would have 
 been, if living " (Rev. Sts. of N. Y. 6th ed. p. 202, §§ 5 and 6). "For wrongs 
 done to the property, rights, or interests of another, for which an action might 
 be maintained against the wrong-doer, such action may be brought by the per- 
 son injured, or after his death by his executors or administrators against such 
 wrong-doer, and after his death against his executors or administrators, in the 
 same manner and with the like effect in all respects as actions founded upon 
 contracts. But the preceding section shall not extend to actions for slander, for 
 libel, or to actions for assault and battery, or false imprisonment, nor to actions 
 on the case for injuries to the person of the plaintiff or to the person of the tes- 
 tator or intestate of any executor or administrator" (Ibid. p. 746, §§ 1, 2). 
 
 ' Neely v. McCormick, 25 Penn. St. R. 255. 
 
 ^ Farr v. Newman, 4 T. R. G21 ; Gaskell v. Marshall, 1 Vi. & Rob. 132; Fen- 
 wick V. Laycock, 2 Q. B. 110; Quick v. Staines, 1 B. & P. 293.
 
 § 535. WHERE PROPERTY IS MORTGAGED. 535 
 
 mortgagor or person in possession of his intention to foreclose 
 the mortgage ; ^ and such action may be brought, even though 
 the debt for which the mortgage was given has not become 
 due.*^ In Kentucky, the equity of redemption in a slave hav- 
 ing been sold under execution, and the slave delivered by the 
 sheriff to the purchaser, the agent of the mortgagee seized the 
 slave. In an action of trespass therefor by the purchaser 
 against the agent, it was held that, in the absence of proof of 
 a right of possession by agreement in the mortgagor, the 
 plaintiff was not entitled to recover.^ In a case in New 
 York, a mortgage of personal property provided that the 
 mortgagee might take possession and sell whenever he 
 deemed himself insecure. It was lield that the mortgagor 
 was a mere tenant at sufferance, and that a sheriff who seized 
 the property, by virtue of an execution, with notice of the 
 mortgage, and after demand of the property by the mort- 
 gagee, rendered himself liable to damages in an action against 
 him by the mortgagee.* 
 
 § 535. Althougb the mortgage be payable on demand, 
 yet, as between the mortgagee and a wrong-doer, no demand 
 is necessary, unless required by the statute.^ * And if it be 
 
 ' Brackett v. Bullard, 12 Mete. 308. 
 
 ' Woodruff V. Halsey, 8 Pick. 333 ; Foster v. Perkins, 42 Maine, 168. 
 
 = Swigert v. Thomas, 7 Dana, 220. * Farrell v. Hildreth, 38 Barb. 178. 
 
 " Brown v. Cook, 3 E. D. Smith, 123 : Cassedy v. Hunt, N. Y. Common Pleas, 
 June 8th, 1844; Delano v. Thurnell, lb. Feb. 1842. 
 
 * Where goods ■which were mortgaged were seized under an attachment 
 against the mortgagor, and the demand and notice required l>y the statute were 
 given by the mortgagee, and the attachment was afterwards dissolved by pro- 
 ceedings in insolvency against the mortgagor, but the otRcer proceeded notwith- 
 standing to sell, it was held, in an action of trespass by the mortgagee against 
 the officer, that the plaintiff was entitled to damages to the value of the property 
 at the time of the taldng, whether it had been claimed by the assignee in insolv- 
 ency or not (Codman v. Freeman, 3 Cush. 306). Shaw, C. J. : "The case stands 
 thus: By force of the mortgage, the plaintiffs became owners of the property as 
 against the mortgagor, with a right of present possession, by a defeasible title, 
 indeed, still by a title which made tlicm owners until defeated. The sheriflF 
 takes them under claim of a right to attach them in behalf of creditors; but that 
 attachment is dissolved, and then the plaintiffs have the same right against the 
 officer as they would liave against any other stranger; and upon recovering dam- 
 ages, they are entitled to the full value. We are strongly inclined to think that, 
 independently of this dissolution of the attachment by insolvency, the result 
 ■would have been the same; because, from and after the plaintiffs' notice of their 
 mortgage and demand on the officer — neither the officers nor the attaching cred-
 
 536 WHO MAY MAINTAIN THE ACTION. § 535. 
 
 agreed between the mortgagor and mortgagee that, upon de- 
 fault made in payment, the goods shall, on demand, be deliv- 
 ered to the latter, an action of trespass may be maintained 
 by the mortgagee against a person who, after the expiration 
 of the time of payment, removes the goods, without a previ- 
 ous demand on him for them. In an action of trespass for 
 taking goods, the plaintiff claimed title to them under a 
 mortgage from one Clark, dated in February, made to secure 
 a note payable one year from the first of the following April. 
 The defendant claimed the goods under a bill of sale of them, 
 given to him subsequent to the execution of the mortgage, for 
 a debt which Clark OAved him, " to have and to hold the same 
 to him, and their use and benefit forever ; said property to 
 remain in my (Clark's) possession until called for by said 
 Knox, and then to be delivered up to him free of expense." 
 It was proved that, on the 13th of March, about a week after 
 the delivery of the foregoing bill of sale, the plaintiff and 
 Clark agreed, by an indorsement made on the mortgage and 
 note, that the note should be paid on the first day of the 
 next May, and in case the note was not then paid, that Clark 
 would deliver the goods to the plaintiff on that day, or at 
 any subsequent j^eriod when the plaintiff should see fit to 
 demand the same. It "was further proved that, shortly after 
 the expiration of the time last above mentioned, the defend- 
 ant took said goods and conveyed them in the night into the 
 State of Connecticut, in order to secrete the same from the 
 plaintiff and defeat his lien. All of the papers, excepting the 
 note, were duly recorded in the ofiice of the clerk of the town 
 where Clark resided. It was held that the action would lie 
 without proving a demand on the defendant for the prop- 
 erty.^ ^ 
 
 itors having made anj' tender — the holding was Tprongful, and the plaintiffs be- 
 came entitled to the full value, as a substitute for the goods which, by relation, 
 were thus unlawfully taken from them. But, as the fact of the dissolution of the 
 attachment makes the case clear of difHculty, we have preferred putting our de- 
 cision on that ground" (citing Pomeroy v. Smith, 17 Pick. 85). 
 
 ' Boise V. Knox, 10 Mete. 40. 
 
 * In Boise V. Knox, sujira, the court said: "The mortgage was an actual, 
 though conditional, transfer and conveyance of the cattle and goods, by which
 
 § 536. WHERE PROPERTY IS MORTGAGED. 537 
 
 § 536. If it be agreed between the mortgagor and mort- 
 gagee that the former shall retain possession of the goods, 
 but in case they are attached by another creditor, that then 
 the mortgagee shall have the right to immediate possession, 
 an oiScer who removes them, under an attachment against 
 the mortgagor, will be liable as a trespasser. In Welch v. 
 Whittemore,^ the plaintiff, in support of the action, relied 
 upon a mortgage of the goods in question from Wm. F. 
 Welch to him, to secure the payment of a promissory note, 
 w^hich had not arrived at maturity at the time of the alleged 
 taking by the defendant. The mortgage provided that, until 
 default of the mortgagor to ])aj the note according to its 
 tenor, he might retain possession of the property and use and 
 enjoy the same ; " but if the same or any part thereof shall 
 be attached at any time before payment, <fec., by any other 
 creditor or creditors of the said Wm. F. Welch, then it shall 
 be lawful for the said John Welch, his executors, tfec, to take 
 immediate possession of the w^hole of said granted property 
 to his and their own use." The defendant justified the tak- 
 ing as a deputy sheriff under an attachment in favor of a 
 creditor of Wm. F. Welch against him. A verdict having 
 been found for the plaintiff in the court below, it w^as sus- 
 tained by the Supreme Court.* 
 
 the property vested immediately in the mortgagee, defeasible on a condition sub- 
 sequent; and there being no stipulation that the jjossession should remain with 
 the mortgagor, the right of possession followed as incident to the right of prop- 
 erty, and the possession of the mortgagor was that of the mortgagee. And it 
 made no difference, as to the property and the possession and the legal rights of 
 the mortgagee therein, whether the debt for which they were hypothecated was 
 due or not. The defendant took nothing by his subsequent bill of sale from 
 Clark but a right of redemption. The agreement between Clark and the plaintiff 
 to accelerate the payment of the note could not be injurious to the defendant, 
 because it did not affect tlie right of possession that was in the plaintiff before, 
 nor the right of redemption, which, as against the defendant, he could not fore- 
 close until after the time originally fixed by the mortgage" (and see Woodruff 
 V. Halsey, 8 Pick. 333; Thurston v. Blanchard, 22 lb. 20). 
 
 An action of trespass de bonis asportatis for timber cut from mortgaged prem- 
 ises, may be I)rought by the executor of the mortgagee of the premises (Brooks 
 V. Goss, 01 Maine, 307). 
 
 ' 25 Maine, 86. And see Paul v. Hayford, 22 lb. 234; Rev. Sts. of Maine, 
 ch. 117, § 38, and amendment to same of 1842, ch. 31, § 12. 
 
 * In the above case, the Supreme Court, in overruling exceptions to the ver- 
 dict, said: "The mortgage being bo)ia Jide, the evident object of tlie parties
 
 538 WHO MAY MAINTAIN THE ACTION. § 537. 
 
 § 537. If the mortgagee be iu possession of the goods, he 
 may maintain an action of trespass against a person who 
 
 thereto was to give to the plaintiif security for his debt, without depriving the 
 debtor of the use of the property ; but the ordinary right of a mortgagee to take 
 possession of the property at pleasure, was not intended to be abridged by the 
 interference of any other creditor. As it was the privilege of the parties to stipu- 
 late that the plaintiff should have entire control, till the redemiition of the goods, 
 they could make such restrictions as they pleased. If the mortgage was silent 
 on the subject of possession, the defendants would, on every principle, be liable 
 to an action of trespass. Can thev be less so, when it was specially provided 
 that such an attachment at the time it should be made should give the right to 
 the plaintiff to take immediate possession? The attachment and this right were 
 to be simultaneous. The law will not say that the attachment is legal, when it 
 can give no right to the officer who makes it to hold possession of the property, 
 and can create no lien for the security of the debt of the creditor. By the con- 
 struction to be put upon the instrument, the taking by the defendant was an in- 
 jury to the possession of the plaintifl" secured to him therein." 
 
 Where the mortgagee of personal property has left it in the custody of the 
 mortgagor, he may lawfully take possession of it, notwithstanding the mortgagor 
 may have transferred it, subsequent to the mortgage, to a creditor to secure a debt, 
 and the creditor and mortgagor have joint possession of it. Coty v. Barnes (30 
 Vt. 78) was trespass for taking a cow. One Landue had been the owner of the 
 cow, and had mortgaged her to the defendant as security for rent. The cow still 
 remained in the possession of Lardue ; and he afterward sold her to the plaintiff, 
 as security for a debt he owed him. The plaintiif had the cow for four or five 
 days, and she then went back into the custody of Landue and the plaintiff, and 
 remained in that situation until the defendant took possession of her, under his 
 mortgage. Judgment having been rendered for the defendant in the county court, 
 the Supreme Court, in affirming it, said : ' ■ Both the defendant's and the plaintiff's 
 title to the cow was incomplete against the creditors of Landue and subsequent 
 bona fide purchasers from him. There was no sufficient change in the possession 
 of the cow. The fact that the plaintiff had the exclusive possession only four or 
 five days can be of no avail. But the title of each is good against Landue — no 
 changein the possession being necessary as to him; and it has been frequently de- 
 cided in this State that, if two officers attach the same property, each leaving it 
 in the possession of the debtor, either of them may, at any time, complete his 
 title by taking possession, not only against third persons, but also against the 
 other officer. The reason is, that the use or trust, in which the fraud consisted, 
 is determined when the possession is taken ; and it being simply what is termed 
 a fraud in law, the title is purged of such objection when a substantial and visi- 
 ble change in the possession is effected. The axiom, ' He who is first in time, 
 is first in right,' well applies in such case. The defendant has not only the elder 
 title as against Landue, but he is first in time in taking an exclusive possession, . 
 not only against Landue, but also against the plaintiff, who claims under a junior 
 title from Landue. If we then apply the same principle to purchasers that has 
 been applied between attaching creditors, the defendant might well take the pos- 
 session, so long as the plaintift''s title was incomplete. But it is said, the plaintiff 
 had, in fact, the possession of the cow when the defendant drove her away, and 
 consequently, the superior right; but it was a joint possession with Landue, and 
 the plaintiff's title was then incomplete, except as against Landue. The credit- 
 ors of Landue miglit have well attached the property, and thereby have acquired 
 a right paramount to the plaintiff. The plaintiff should not stand in any better 
 situation, as against this defendant, than he would against attaching creditors. 
 Both the plaintiff's and the defendant's title was incomplete until the defendant 
 took the possession of the cow. He then purged the transaction of the fraud in 
 law in relation to his own title, leaving it in full operation as to the plaintiff's 
 title. It is difficult to see bow it can be claimed that, as between these parties,
 
 § 538. WHERE PROPEKTY IS MORTGAGED. 539 
 
 seizes them, althoiigli the mortgage be afterwards adjudged 
 void. Perry v. Chandler ^ was an action of trespass against 
 a sheriff for taking and carrying away dry goods. The goods 
 belonged to one Maynard, who mortgaged them to the 
 plaintiff to secure a debt, the plaintiff taking them into his 
 possession. The defendant seized them by virtue of an at- 
 tachment in favor of the creditors of Maynard, who was 
 afterwards adjudged a bankrupt, and the attaching officer 
 appointed his assignee. The goods were finally sold by the 
 assignee, the avails distributed among the creditors of May- 
 nard, and the mortgage declared by the District Court null 
 and void, and ordered to be delivered up to be canceled. 
 It was held that the action might be maintained, it having 
 been instituted as-ainst the defendant at a time when the 
 plaintiff had a right to the prof)erty, subject only to the con- 
 tingency that at a future day his title might be defeated by 
 proceedings against his mortgagor in bankruptcy. 
 
 § 538. A second mortgagee in possession of personal 
 property, the first mortgage remaining unsatisfied, may re- 
 cover in trespass against a stranger, for the wrongful taking 
 of the property, its value with interest from the time of the 
 taking.^ * And a person who has paid money due upon a 
 mortgage may, for the purpose of effecting substantial jus- 
 tice, be substituted in the place of the incumbrancer, and 
 
 the plaintiff has the superior title. If the defendant were a stranger to all title, 
 the plaintiff might well stand upon his concurrent possession with Landue. We 
 think, while the plaintiff's title 'continued incomplete against creditors, for want 
 of a sufficient change in the possession, the defendant had the same right to 
 complete his title that he would have had if the sole possession had remained in 
 Landue." 
 
 ' 2 Cush. 237. 
 
 ^ White V. Webb, 15 Conn. 302. 
 
 * An oflScer in order to justify the taking of goods from the possession of a 
 bailee of the mortgagee, under a writ against the mortgagor, must flrst pay or 
 tender the amount due upon the mortgage (Barker v. Chase, 24 Maine, 230). 
 
 Where goods in the hands of the mortgagee are seized and sold under execu- 
 tion as the property of the mortgagor, an action of trespass may be maintained 
 by the mortgagee against both the sheriff and the plaintiff in the execution 
 (Sanders v. Vance, 7 Monr. 209).
 
 540 WHO MAY MAINTAIN THE ACTION. § 358. 
 
 treated as the assignee of the mortgage, although the mort- 
 gage itself has been discharged.^ * 
 
 ' Heath v. West, 6 Fost. 191 ; Robinson v. Leavitt, 7 N. Hamp. 90. 
 
 * Heath v. West, supra, was an action of trespass for taking and carrying 
 away the plaintiff's horse. Heath, the plaintiff, bought the horse of one Den- 
 nison, and executed a mortgage to him to secure a part of the purchase money. 
 Dennison, failing to get his pay, called on Heath either to pay the money or 
 give up the horse. There was talk between Heath and one Hall as to Hall's 
 paying for and owning one-half of the horse ; and it was agreed that Hall should 
 sign a note for $75, to raise money to pay Dennison, and should keep the horse 
 until spring, and then pay for and own half of him, if he elected to do so. Be- 
 fore this, Dennison had seen the defendant West, and told Heath and Hall that 
 West would advance the money on their note and a mortgage of the horse. 
 Dennison offered to assign his mortgage to West, but West said he did not want 
 an assignment, but a new mortgage. Heath and Hall made their note and 
 mortgage to West, and Dennison destroyed the note he held and canceled his 
 mortgage, and delivered it to West. The horse was taken and sold by the de- 
 fendant on the mortgage. At the date of the above mentioned transactions, as 
 well as at the time of the taking, the plaintiff was under age. Had the contro- 
 versy arisen between Heath and Dennison, the case would have been clear. If 
 Dennison had in terms assigned his mortgage to West, the case would have been 
 equally clear between Heath and West. The transaction not being in form an 
 assignment of the mortgage, the question was, whether consistently with recog- 
 nized legal principles, it could be regarded as so far in substance an assignment 
 as to give West the benefit of it. The court said : "It seems apparent that the 
 debt to Dennison was substantially paid by West, and that substantial justice 
 will be promoted by regarding West as substituted in Dennison's place, and 
 treating him as assignee of Dennison's mortgage. The object of all parties was 
 to give to West a valid security upon this horse for the money he advanced to 
 pay Dennison, and it is just to all parties to regard the Dennison mortgage as 
 not discharged, but still subsisting for the benefit of West. It was clearly the 
 interest of West to take an assignment of Dennison's mortgage, because that 
 could not be avoided without also avoiding Dennison's sale. It was a case 
 whei'e the parties acted under a mistake, the obvious effect of what they did 
 being to destroy a good and effectual security, and to give a writing in its stead 
 which was without any binding effect. We are of opinion that West should be 
 regarded as the assignee of Dennison's interest in this animal, and entitled to 
 take and sell the creature by virtue of the mortgage, and if that is considered as 
 avoided, then the sale to Heath being at the same time avoided, West had a 
 right to take and dispose of the animal under Dennison's original title." 
 
 Taggart v. Packard, 39 Vt. 628, was an action of trespass for a quantity of 
 hay. It appeared that the defendant and one Russell contracted with one Ray- 
 mond for the use of certain premises owned by Raymond, by which it was 
 agreed that Russell should cut the hay and put it in the barn on the place; but 
 that if Russell should pay Raymond on or before the 1st of October then next 
 the sum of $12, then the hay was to belong to Russell. The $12 w^ere not paid 
 by the 1st of October, but on the 14th of October Russell paid $6 on account. 
 On the 14th of November, the balance not having been paid, Raymond sold the 
 hay to one Adams for $6, and assigned the contract to him. Adams had mean- 
 while bought of Russell his half of the hay as between him and the defendant, 
 with full knowledge of the arrangement between Raymond, Russell, and the de- 
 fendant. Subsequently, Adams sold his interest in the hay to the plaintiff and 
 assigned to hira the aforesaid contract. Afterward the defendant tendered lo 
 the plaintiff the balance due, and claimed half of the hay, which the plaintiff 
 refusing, the defendant took half of the hay away, and it was for that act that 
 this suit was brought. It was held that the effect of the several tranfers was to 
 put the phaiutifl'in the place of Raymond, and to vest in him the same right to
 
 § 539. WHERE PROPERTY IS MORTGAGED. 541 
 
 § 539. At common law, a mortgage or sale of future 
 acquired chattels, the mortgagor neither having the goods 
 nor the agent of their production at the time of making the 
 contract, creates no valid subsisting title. It was accordingly- 
 held that a clause in a mortgage of goods in a store convey- 
 ing not only those then in the store, but whatever might be 
 therein at any time in the course of the mortgagor's business, 
 was, as to subsequently acquired goods, inoperative for the 
 purpose of enabling the mortgagee to maintain an action at 
 law against the party seizing them.^ * But if the future 
 acquired chattels are necessary for the preservation and 
 utility of the thing mortgaged — or are the product of present 
 property in the mortgagor, as the wool growing on sheep, or 
 the produce of a dairy or farm, or anything of that character 
 — the mortgage w^ill take effect upon the property as soon 
 as it comes into existence, and be binding at law\^ Where 
 after the^ mortgage of a vessel, the mortgagor substitutes new 
 sails for the old ones, which are nearly worn out, and the 
 
 the hay that Raymond would have had if he had retained his interest in it; that 
 the transaction could only be regarded as a pledge of the hay to Raymond as 
 security of the rent of $12, to be redeemed by the payment of that sum on or 
 before the first day of October then next ; that the rent not having been paid by 
 the first of October, Raymond had the right to compel the defendant to redeem 
 the pledge or be foreclosed of all his rights therein, but that until he did so, the 
 defendant had the right to redeem ; and that as the defendant tendered to the 
 plaintiff the balance due before he took the hay, and took it peaceably, he was 
 not a trespasser. 
 
 ' Hamilton v. Rogers, 8 Md. 301 ; Lunn v. Thornton, 1 Man. Gr. & Scott, 
 379 ; but see Tapfield v. Hillman, 6 Man. & Gr. 245 ; Hanuon's Exrs. v. The 
 State use of Robey, 9 Gill, 440 ; Hudson v. Warner, 2 Har. & Gill, 428 ; Preston 
 V. Leighton, 6 Md. 98. 
 
 ' Van Hoozer v. Corv, 34 Barb. 9 ; Otis v. Sill, 8 lb. 102 ; Holroyd v. Mar- 
 shall, 9 Jur. N. S. 218. 
 
 * Rowley v. Rice, 11 Mete. 337, was an action of trespass against a sheriff 
 for entering the plaintiff's store and attaching his goods upon a writ sued out 
 against one Tingley. The plaintiff claimed the goods by virtue of a prior mort- 
 gage of them by Tingley to him, given to secure the payment of certain notes; 
 and the mortgage purported to include not only the goods then in Tiugley's 
 store, but such as he might afterward purchase. It appeared that by an arrange- 
 ment made between the plaintiff and Tingley, the plaintiff took possession of all 
 the goods, as well those after purchased as those existing at the time of the 
 mortgage, under an agreement ti)at he should sell the same, pay his own notes 
 out of the proceeds, and account to Tingley for the surplus. It was held that 
 the officer was justified in taking and holding the goods, because the attaching 
 creditor must pay the amount for which they were hypotiiecated, unless the 
 officer kept po.ssession of the store an unreasonable length of time, in which case 
 he might become a trespasser ab initio.
 
 542 WHO MAY MAINTAIN THE ACTION. § 540. 
 
 mortgagee then takes possession of the vessel and sells it at 
 auction under the mortgage, he becoming the purchaser, the 
 new sails will belong to him as part of the vessel.^ * When 
 during the term of a mortgage upon a printing establish- 
 ment, the type and other materials belonging to it are re- 
 moved and new ones substituted, if the new type and mate- 
 rials were procured for the purpose of replenishing the estab- 
 lishment mortgaged, and of supplying the place of articles 
 belonging to it which had been lost or destroyed by use, 
 and were attached to and incorporated with it, they become 
 a part of the establishment, and by right of accession belong 
 to the owners of it. They form an incident to, and follow 
 the title of the printing establishment to which they are at- 
 tached, which is the principal thing. So, if the borrower of 
 a watch replace its crystal, or of a musical instrument one of 
 its strings, keys, or pipes which has been lost, destroyed, or 
 become useless in his service, it belongs to the lender.^ 
 
 § 540. Where the mortgagee causes the property to be 
 sold under a judgment and execution for the mortgage debt, 
 he thereby waives all claim under the mortgage. A. mort- 
 gaged certain goods to B. to indemnify him for signing a note 
 to S. as A.'s surety, and B. assigned the mortgage to S. A. 
 then mortgaged the same goods to C. S. brought an action 
 
 ' Soiithworth v. Isham, 3 Sandf. 448. " Holly v. Brown, 14 Conn. 266. 
 
 * In Southworth v. Isham, supra, the court remarked that if it were even 
 conceded that the mortgagor could have removed the new sails before actual 
 possession by the mortgagee under the mortgage, still after such possession the 
 mortgagor's claim was gone. Conderman v. Smith, 41 Barb. 404, was an action 
 by the lessor and purchaser against a creditor of the lessee who had taken and 
 sold the products of the farm and dairy upon execution. It was held tliat it did 
 not fall within the rule which prohibits the selling or mortgaging property not 
 in existence or not owned at the time by the vendor or mortgagor. It was the 
 product of property which the vendor owned at the time, and was potentially 
 his, and therefore the subject of sale. This is an old and well settled doctrine, 
 and is fully examined in Van Hoozer v. Cory, supra. The case is distinguish- 
 able from that of a sale or mortgage of property to which the seller or mort- 
 gagor has no right at the time of the sale or the mortgage, either actual or 
 potential, but in which he expects he shall acquire some title or right at a 
 future day. 
 
 A verbal sale of all the personal property the vendor then had, and all that 
 he miglit thereafter acquire and die possessed of, will not pass the legal title to 
 the subsequently acquired property, so as to enable the vendee to maintain tres- 
 pass for its removal (Wilson v. Wilson, 37 Md. 1).
 
 § 540. WHERE PROPERTY IS MORTGAGED. 543 
 
 against A. and B. on their said note, and attached the goods, 
 and, having obtained judgment, caused the goods to be sold 
 under an execution. It was held, that 8., by causing the 
 goods to be sold by virtue of the execution, must be deemed 
 to have waived all claims under the mortgage ; that C. might 
 maintain trespass against S. and the officer who sold the 
 goods, and that the measure of damages was the value of C.'s 
 right to redeem the goods.^ * If the mortgagee, the condi- 
 
 ' Kimball v. Marshall, 8 N. Hamp. 291. 
 
 * In this case, the court said that it would be grossly unjust to let S. set up 
 the mortgage after he had voluntarily caused the goods to be sold, and put it out 
 of his power to restore them upon performance of the condition of the mortgage 
 by C, and that the wrong to C. was the same that it would have been had S. 
 taken the goods without an execution and sold them, giving the plaintiff no op- 
 portunity to redeem. "The plaintiff," continued the court, "has never had 
 possession of the goods, and can be held to account with the mortgagor only for 
 the amount he may recover in this case. The only loss he has sustained tlirough 
 the injurious acts of the defendants is the loss of the privilege of redeeming the 
 goods. And we are of the opinion, that the value of that privilege is the meas- 
 ure of the damages to which the plaintiff is entitled." 
 
 In an action of trespass de bonis asportatis against a deputy sheriff, it appeared 
 that the goods in question were held by the plaintiff under a mortgage from one 
 Case, the former owner, and that the defendant attached them as the goods of 
 Case. The goods were mortgaged by Case to the plaintiff, to secure him as ac- 
 commodation indorser of a note which afterward became the property of a bank. 
 After the seizure of the goods by the defendant, the plaintiff caused a suit to be 
 brought on the note in the name of the bank against Case by writ of attachment, 
 which the plaintiff put into the hands of the defendant, directing him to attach 
 the same goods sul)ject to the former attachment. It was held, that the tres- 
 pass of the defendant in taking the goods out of the possession of the plaintiff, 
 was not waived by reason of the plaintiff's acts in relation to the subsequent 
 attachment in favor of the bank ; but that the conduct of the plaintiff, in relation 
 to that suit, was a proper subject for the jury to consider in determining the 
 validity of his mortgage title (Dyer v. Cady, 20 Conn, 563). 
 
 Frothingham v. McKusick, 24 Maine, 403, was an action of trover by the 
 assignees of the mortgage of certain land for a quantity of logs and boards, with 
 counts in trespass de bonis asportatis for the same. Tiie defendant admitted that 
 he sawed and manufactured into boards six hundred and fifty thousand feet of 
 the timber. He attempted to excuse himself upon the ground that he acted as 
 the hired servant of those who cut it. But it appeared that he furnished sup- 
 plies and aided, by paying the workmen under his employer, in cutting and 
 hauling the timber, until his claim therefor, and for sawing, amounted to $3,000, 
 for which he was reimbursed nearly to the whole amount from the proceeds of 
 the timber, a number of thousand feet of which he sold himself. The defense 
 was, that the person under whom the defendant acted was licensed, by the mort- 
 gagor to cut the timber and to manufacture it into boards upon certain terms 
 and conditions. But the license was granted long after the conveyance in mort- 
 gage to the plaintiffs. It appeared that the plaintiffs took an assignment of the 
 rights of the mortgagor arising under the license. This, however, was not done 
 until the timber in question iiad been cut, hauled, and nearly all manufactured 
 and disposed of by the defendant and the person under whom he pretended to 
 act. The defendant contended that the taking of the assignment of the license
 
 544 WHO MAY MAINTAIN THE ACTION. § 541 ► 
 
 tion being broken, sell otherwise than in the manner directed 
 by the statute, he will not, by so doing, become a trespasser 
 ah initio^ the title of the mortgagee not being forfeited by 
 such sale, as that of a mere bailee might have been.^ 
 
 § 541. Where the parties have stipulated in the mort- 
 gage that the mortgagor shall keep possession until condition 
 broken, or for a certain time, or until the occurrence of some 
 future contingency, the right of the mortgagee will be thereby 
 suspended until the right of possession of the mortgagor has 
 ceased.^ A mortgagor of chattels remaining in possession 
 before default, under a clause entitling him to such posses- 
 sion, has an interest in the property which is subject to levy 
 and sale on execution ao-ainst him. Althouo-h the interest 
 which passes to the purchaser at such sale is only such an 
 interest as the mortgagor had, yet the sheriff, and the parties 
 promoting the sale, are not trespassers if the sale is in general 
 terms, without any notice being taken of the existence of the 
 mortgage. These points were involved in Hull v, Carnley,^ 
 which was argued in the New York Court of Appeals, and 
 settled, after mature deliberation.* But after default in the 
 
 was a ratification of the authority of the mortgagor to grant the permit, and a 
 •waiver of the rights of the plaintiffs under the mortgage. The court held, that 
 as the right of action against the defendant as a tort-feasor had long before be- 
 come fixed in the plaintiffs, and could not be removed but by a release, or accord 
 and satisfaction, they were entitled to recover. 
 
 ' Leach v. Kimball, 34 N. Hamp. 568. 
 
 ^4 Kent. Com. 138; Story on Bailm. 287; Hoyt v. Remick, 11 N. Hamp. 
 285; Smith v. Moore. lb. 55; Asb v. Savage, 5 lb. 545 ; Libby v. Cushman, 16 
 Shepl. 429; Brackett v. BuUard, 12 Mete. 308; Russell v. Butterfield, 21 Wend. 
 300; Welch v. Whittemore, 13 Shepl. 86; Redman v. Hendricks, 1 Sandf. 32; 
 Skiff V. Solace, 8 Wash. 279 ; Leach v. Kimball, Supra. 
 
 ' 17 N. y. 202; s. c. 11 Bx 501 ; 2 Duer, 99. And see Marsh v. Lawrence, 4 
 Cowen, 461 ; Otis v. Wood, 3 Wend. 498 ; Bailey v. Barton. 8 lb. 339 ; Mattison 
 V. Baucus, 1 Comst. 295 ; Livor v. Orser, 5 Duer, 501 ; Goulet v. Asseler, 22 N. 
 Y. 225 ; Manning v. Monaghan, 28 lb. 585. 
 
 * It has been held, in Vermont, that when machinery in a factory is mort- 
 gaged, either with or without the land, and left in the possession of the mort- 
 gagor, it may be attached as his property. Sturgis v. Warren. 11 Yt. 433. was 
 an action of trespass against a deputy sherifi'for attaching and taking away wool, 
 cloth, machinery, a factory bell, &c. It appeared that a certain manufacturing- 
 company mortgaged to W. and B. their factory and the machinery therein on 
 the 6th day of Jan.. 1837. The company, still remaining in possession of the 
 property mortgaged, the defendant attached it as their property on the 22d day 
 of the following April. On the loth of May next thereafter, W. and B. assigned
 
 § 542. WHERE TROPERTY 1& MORTGAGED. 545 
 
 mortgage and possession by the mortgagee for the purpose 
 of foreclosure, and knowledge thereof by the parties, if they 
 take and sell the entire property, and not merely the interest 
 of the mortgagor, they become trespassers.^ 
 
 § 542, One's right in his property is not divested or 
 changed as against strangers, by reason of his having mort- 
 gaged it for another's debt. As against all persons but the 
 mortgagee and those claiming under him, the mortgagor has 
 the right of property and of possession, and can maintain 
 trespass for its removal.^ Cram v. Bailey^ was an action 
 against an officer for wrongfully attaching the goods of the 
 plaintiff. It appeared that the property was mortgaged by 
 
 tlieir mortgage to the plaintiflF, but the assignment was not witnessed, acknowl- 
 edged and recorded, until the 23d day of January, 1838. In July, 1837, the 
 plaintiff took possession of the factcry. Afterward judgments were obtained on 
 the attachments, and in January the defendant sold the machinery in question, 
 on the executions. The machinery and bell were secured to the building in the 
 usual manner. Judgment having been rendei-ed for the defendant by the County 
 Court, the Supi'eme Court said: "Some doubt has perhaps been expressed when 
 personal property is mortgaged witli real estate, and the statute gives the use of 
 the real estate to the mortgagor until the pay day, and the use of the personal 
 property with the realty constituted its main value, wdiether such case ought not 
 to constitute an exception to the general rule that the possession bf personal 
 property must always accompany and follow the sale or mortgage, to protect it 
 from attachment. We find it, however, extremely difficult to adopt any such 
 exception, from the impossibility of ascribing to it any distinct limitations. It 
 might be made to cover a store with its goods, or a farm with its stock, as well 
 as a factory with its macliinery." 
 
 By indenture of sale, A. assigned all of his household goods, &c., to secure a 
 debt due from him to the assignees, subject to a proviso that the deed should 
 become void ujion payment of the said sum on a certain day, or on some earlier 
 day, to 1)e ajjpointed by the assignees \)j a notice in writing, to be served on A. 
 twenty-four hours before the day of payment so appointed, interest to be paid in 
 the mean time. It was also agreed by the deed, that after default made in pay- 
 ment contrary to the said proviso, it should be lawful for the assignees to enter and 
 take possession of the goods, and to sell them and reimburse themselves out of 
 the proceeds, accounting to A. for any surplus; and that until such default, it 
 should be lawful for A. to hold, use, and possess the said goods without hin- 
 drance from the assignees. The assignees served A. with a notice to pay on a 
 day earlier than that named in the deed, and afterwards entered and took and 
 sold the goods assigned; but the notice was bad, having been served less than 
 twenty-four hours before the day of payment appointed by the assignees. It was 
 held, that A. had, under the deed, the right of jiossession of the goods, defeas- 
 ible only by default in payment after due notice; and that he might, therefore, 
 sue the assignees in trespass for having wrongfully entered and sold (Brierly v. 
 Kendall, 17 Adol. & El. N. S. 937). 
 
 ' Gelhaar v. Ross, 1 Hilton, 117. 
 
 " Hanmer v. Wilsey, 17 Wend. 91 ; Carnrick v. Myers, 14 Barb. 9. 
 
 ' 10 Gray, 87. And see Ullman v. Barnard, 7 lb. 558. 
 Vol. I. — 35
 
 546 ^vno MAT mai:n"tai]v: the action. § 543. 
 
 the plaintiff and her daughter to one Chase, to secure the in- 
 debtedness of the daughter to him, and that Chase, when he 
 received the mortgage, and the defendant, when he attached 
 the property, knew that it belonged to the plaintiff. At the 
 trial in the Common Pleas, the defendant offered to prove 
 that Chase had released the defendant and the attaching 
 creditors from all claim for dainages. But the evidence was 
 rejected. The defendant contended that the plaintiff, by 
 uniting with her daughter in mortgaging her propert}^, ren- 
 dered it liable to attachment as the daughter's, and that the 
 plaintiff coukl at all events only recover the value of the 
 right of redeeming the property from the mortgage. The 
 jury having, under the instructions of the judge, found a ver- 
 dict for the plaintiff' for the full value of the proj^erty, the 
 Supreme Court refused to disturb it.* 
 
 § 543. Where property is sold, and a mortgage given 
 back to secure the purchase money, it is, in law, one transac- 
 tion ; and one part cannot be disaffirmed or rescinded with- 
 out the other being disaffirmed or rescinded also. A persou 
 cannot apply to his own use that part of the transaction 
 which may bring to him a benefit, and repudiate the other 
 which it may not be for his interest to fulhl. Thus, it has 
 been held, that an infant cannot avoid a mortgage and affirm 
 a deed when both are made at one and the same time, relate 
 to the same property, and go to make up one transaction. 
 If the mortgage be avoided under the plea of infancy, the 
 deed becomes of no effect. Where, therefore, an infant, hav- 
 ing bought a horse, gave back a mortgage for the balance of 
 the purchase money, it was held, that he could not repudiate 
 
 * In Cram v. Bailey supra, the court said : " Tiie plaintiff's right in her prop- 
 erty was not divested or changed as against strangers, by reason of her having 
 mortgaged it for her daugliter's debt. As against all persons but the mortgagee 
 and tiiose claiming under him, she had the right of property and of possession, 
 and can maintain this action. The measure of damages to the plaintiff was the 
 value of the property at tiie time it was taken. The fact that a third person had 
 a claim upon it did not diminish the plaintiff's claim for damages. Tlie settle- 
 ment made by the attaching creditors with the mortgagee, without the plaintiff's 
 knowledge or consent, did not affect the plaintiff 's chiim for damages. It did 
 not appear but that the daughter would pay the whole debt."
 
 § 544. OWNER PARTING WITH RIGHT OF POSSESSION. 547 
 
 the mortgage and keep the horse, or maintain trespass 
 asrainst the morto-ao^ee for taldns; the horse by virtue of the 
 mortgage.^ 
 
 7. Where the owner has parted with his right of possession. 
 
 § 544. The general owner may so part with his right to 
 the possession of his property as not to be able to maintain 
 trespass for an unlawful taking of it, though his general title 
 remains unimpaired. The law gives him au action for the 
 injury thus done him ; but he cannot maintain trespass, 
 which w^e have seen lies only for an injury to the possession.^ * 
 If A. permit his goods to remain w^ith B. for his own use, 
 and B. deliver them to C. to carry to another place, trespass 
 does not lie by A. against C, for the reason that B. had the 
 goods by delivery from the owner. Again, if a man hire 
 a horse to use two days, and he continue to use him the third 
 day, trespass will not lie, although such use is unlawful, and 
 although the owner is entitled to the immediate possession ; 
 yet being the general owner, and, as such, having a construc- 
 tive possession, he might maintain trespass against a stranger 
 
 ' Heath v. West, 8 Fost. 101; Roberts v. Vv'iggiu, 1 N. Hamp. 73; Richard- 
 son V. Boright, 9 Vt. 368. 
 
 ■ Hurd V. Fleming, 34 Vt. 1G9; Wilson v. Martin, 40 N. Hamp. 88 ; Clark v. 
 Carlton, 1 lb. 110 ; Poole v. Symouds, lb. 2R9 ; Heath v. West, 28 lb. 101 ; Moul- 
 ton V. Robinson, 27 lb. ooO; Marshall v. Davis. 1 Wend. 109; isash v. Mosher. 19 
 lb. 431; Newhall V. Dunlap, 2 Shepl. 180; Gavv. f^mith, 38 N. Hamp. 171; 1 
 Chitty's PI. 7th ed. 188-195; 2Greenlf. Ev. §§ 613, 614, 616. 
 
 * Where an infant prevails upon another to sign a note for him, and in order 
 to get him to do so, turns out to him furniture, with liberty to take it when he 
 pleases, the infant cannot afterward maintain trespass against the other for taking 
 the furniture away. In Iloyt v. (;hapin, 6 Vt. 42, the defendant, on the trial in 
 the court below, proved that the plaintifi" procured the defendant to sign with and 
 for the plaintifi" a note, and to induce him to do so, turned out to him. among 
 otiier property, a stove. The defendant did not at that time take the stove away, 
 but it was then agreed that he might do so wtienever he pleased. The note not 
 having l)(!en paid, the defendant took the stove away. It was'held that the fore- 
 going facts v.cre sutficient evidence of a license. The plaintift" then offered to 
 prove tliat when tlie agreement was entered into he was an infant, which was 
 held inadmissible. The Supreme Court said: "This property was turned out to 
 Chapin, and the license granted to take it away, on a valuable consideration. It 
 lay not in grant, but in livery. It was not void. Without now deciding 
 how much the j)l;iintiff must have done in order to revoke or avoid this 
 contract, or any part thereof, or what effect it would have had. on Chapin or the 
 note, we are of the opinion tliat it must luive been avoided by some clear and sul*- 
 stantial act before the taking complained of, and such revocation been specially 
 replied in order to have been admitted."
 
 548 WHO MAY MAINTAIN THE ACTION. § 545. 
 
 who should presume to use the horse on the third day.^ Lunt 
 V. Brown ^ was an action of trespass against a deputy sheriff 
 for taking the pLaintiff's mare, on an attachment against one 
 Winn. It appeared that the plaintiff had previously pur- 
 chased the mare of Winn, but that it was at the same time 
 agreed that Winn should keep the mare until grazing time, 
 and if, at any time before then, Winn should pay the plaintiff 
 fifteen dollars and interest, the plaintiff would resell the mare 
 to him. It was held that, as the plaintiff had neither pos- 
 session, nor the right of possession, at the time of the alleged 
 trespass, the action could not be maintained.* 
 
 8. In case of haihnent. 
 § 545. One who has a s|)ecial property in a chattel may 
 maintain trespass against the person who deprives him of 
 the possession, and recover according to his interest ; ^ and an 
 interest will be presumed in the absence of proof to the con- 
 trary.^ Where a parcel of undressed skins was delivered to 
 a morocco manufacturer, to be manufactured into morocco, 
 and while the skins were in an unfinished state, the owners 
 turned them out to their creditor, who caused them to be at- 
 tached and carried away, it was held that the bailee might 
 have legally detained them until the price stipulated for 
 finishing them was paid, and that he might maintain trespass 
 against the persons taking them. But it would have been 
 otherwise, if a particular time or mode of payment for dress- 
 ing the skins had been agreed on, or if, at the time of taking 
 them, the bailors had offered and aOTeed to allow the bailee 
 the full price for dressing tliem out of moneys actually in the 
 bailee's hands.^ f Where a sheriff seizes goods under an at- 
 
 ' Bradley v. Davis, 14 Maine, 44. M3 Maine, 236. 
 
 = Cowing V, Snow, 11 Mass. 415 ; Gilson v. Wood, 20 111. 37 ; Bradley v. Davis, 
 14 Maine, 44. 
 
 * Howe V. Keeler, 27 Conn, 538. ° Burdict v. Murray, 3 Vt. S02. 
 
 * In Wyman v. Dorr, 3 Maine, 183, the cattle, for the taking of which trespass 
 was brought, had been leased for a term of years, to be taken back by the owner 
 within the term if he should deem them unsafe in the hands of the lessee. As 
 llie term had not expired, and as no notice had been given, the action was not 
 sustained. 
 
 t In Cowing v. Snow, supra, Snow brought an action against Cowing, in the
 
 § 545. IN CASE OF BAILMENT. 549 
 
 tachment against the property of tlie consignor, as a non- 
 resident debtor, wLicli are in the possession of a consignee 
 who has made advances on them, he is liable as a trespasser 
 in an action therefor brought against him by the con- 
 
 court below, for taking and carrying away a barrsl of flour. The flour had been 
 purchased for Cowing in New York, by one Barstow, the master of a sloop, of 
 which Snow was pra-t owner, and agent for the other owners. The defendant 
 had advanced eight dollars with which to buy the flour, Barstow agreeing to 
 make up tlie deficiency should it cost more. On the return of the sloop from 
 New York, the flour, which was marked with the initials of the defendant's 
 name, was placed in a public warehouse, with directions from Barstow to Snow 
 not to deliver it until the freight and balance due him on the purchase were paid, 
 and of this the defendant was informed. The defendant, notwithstanding, took 
 the flour away without the knowledge of Snow; but he called on another of the 
 owners and inquired for Snow, observing that he would pay what was due as 
 soon as a bill was presented. The balance due Barstow was one dollar and 
 eighty-five cents, which Snow had paid to Barstow before he brought the present 
 action. After the action was brought, the defendant offered to pay Barstow, but 
 he refused to take the money, and referred him to Snow. Subsequently the de- 
 fendant left with anotlier of the owners one dollar and seventy-five cents, re- 
 questing him to settle the bill, and agreeing to make up any deficiency, but 
 Barstow would not take it. Judgment having been rendered for the plaintifl:"in 
 the court below, the Supreme Court, in affirming it, said: " It is very clear that 
 Barstow, the master of the vessel, had a lien upon the barrel of flour for the 
 freight and for the balance of its price due to him. And admitting the general 
 property to have been in Cowing, he could not legally take it out of the hands 
 of Barstou- until he had paid or tendered the sum due. The act of taking, 
 therefore, was a trespass, for v.-hich Cowing was liable in damages. The only 
 question is, to whom was he liable ? And upon this question we are inclined to 
 think, as it was delivered into the special custody of Suow, with directions not 
 to deliver it until the freight, ccc, was paid, he had such a special property as 
 would entitle him to the action. The tender after action commenced cannot 
 afiect this question.*' 
 
 "We understand the law to be well settled^ that in cases of bailment, unless 
 the bailee has the absolute right to retain possession of the property for a 
 definite time, the action of trespass against a wrong-doer may be brought either 
 in the name of the bailor or bailee" (Redfield, C. J., in Strong v. Adams, 30 
 Vt. 221 ; Brownell v. Manchester, 1 Pick. 232 ; and see Neff v. Thompson, 8 
 Barb. 213). 
 
 Where cattle were delivered by A. to B. under an agreement that the latter 
 should keep them for one year, and have all that they sold for over the first cost 
 and interest, it was held that B. had such a qualified property in them wliile 
 they were in his possession as might be attached by his creditors, but not after 
 their redelivery to A. B.'s right to payment for the year's keeping becoming 
 tben a personal riglit only, unaccompanied by any lien, possession, or right of 
 control to give him property in the cattle (Megee v. Beirne, 39 Penn. St. R. 50). 
 
 ' Brownell v. Carnley, 3 Duer, 9. 
 
 * In Brownell v. Carnley, supra, the court said: "We are all of opinion that 
 there must be judgment for the plaintifl'. Tlie legal title of the goods at tlie 
 time of their arrival was vested in him, not merely by tlie terms of the bill of 
 lading, but ])y virtue of his antecedent advances. He had then an absolute 
 right to sell tiiem, and to perfect the sale by a delivery to the purchaser; and 
 this not only for the purpose of reimbursing his advances, but vv-ith a view to his 
 commissions upon the sale, since, according to the known custom of merchants.
 
 550 WHO MAY MAINTAIN THE ACTION. § 546. 
 
 § 546. If the bailee of goods have a right to them for a 
 given time, trespass will not lie by the general owner against 
 a third person who takes them away before the expiration of 
 the bailee's term.^ " Where a person allowed another to 
 take a number of cows and sheep, which the other agreed to 
 return to the owner within one year, w^itli the increase, and 
 to be answerable for suck as might be lost, destroyed, or not 
 redelivered within the year, with interest on the value, it 
 was held to be a hiring for a valuable consideration, and not 
 a naked bailment, and that the owner of the animals could 
 not maintain trespass against a person who took them away 
 from the person who had the custody of them under the 
 aforesaid agreement,'^ In an action of trespass for taking a 
 pair of. oxen and a yoke, it appeared tkat the plaintiff w^as 
 the owner of the property ; that he had hired it to one Clark 
 for a given time, w^hich had not expired W'hen it was taken 
 l)y the defendant, but that the same was then in the actual 
 custody of Clark. It was urged that the possession of the 
 property by Clark under the agreement was for (3very pur- 
 pose, except the use, the possession of the plaintiff. The 
 answer to this was, that if the use had been merely by the 
 gratuitous permission of the plaintiff, he might have main- 
 tained the action as being in the constructive possession; 
 
 it vv-as doubtless to secure these commissions tliat his advances were made. The 
 seizure of the goods by the defendant was, therefore, a plain viohition of his 
 legal rights. It not merely prevented tlieir exercise, and deprived him of the 
 beneiits he meant to secure, but, if continued, might have resulted in an actual 
 loss of the moneys he had advanced. A decision more at variance -with the 
 understanding, and more liostile to the interests of merchants, could not well be 
 made, than to hold that the prior rights of a consignee, having a title and a lien, 
 are liable to be thus sacrificed, at the instance of a general creditor of the con- 
 signor. * =^ * ^ Even had the plaintiff in this case been only an ordinary 
 pledgee, having no title to the goods, and no power of immediate sale, but 
 merely the right of retaining the possession for his ultimate security, we must 
 still have held that the conduct of the defendant in depriving him of this 
 possession was unlawful, and not justified by the process under which he 
 acted." 
 
 ' Neff V. Thompson, 8 Barb. 213; but see Gibson v. Chillicothe Bank, 11 Ohio. 
 N. S. 311. 
 
 = Putnam v. Wiley, 8 Johns. 433. 
 
 * One having a special property in chattels forfeits his interest by putting 
 them to a different use from tliat w^hieh the contract allows (Briggs v. Oaks, 26 
 Vt. 138 ; Swift v. Moseley, 10 Yt. ^OBJ.
 
 g 540. IN CASE OF BAILMENT. 551 
 
 l)ut that where, to enable the bailee to have the use, he must 
 liave the actual custody for a certain time, and he has paid a 
 consideration therefor, then the possession is in the bailee 
 exclusive of the owner ; and that, in the present case, while 
 the contract was in force, the plaintiff would have been 
 guilty of a wrong to Clark had he attempted to control or 
 use the property let to him.^ And in tres2:>ass for taking a 
 horse let to hire from the custody of the hirer, it was held 
 that as the plaintiff, at the time the horse was taken, had 
 neither the possession, nor the right of possession, the action 
 would not lie, but that the remedy was trover.^ ^^ 
 
 ' Soper V. Sumner, 5 Vt. 274 ; Ward v. Macauley, 4 T. R. 489 ; Hall v. Pickard. 
 3 Camp. 187; 2 lb. 464. 
 
 ' Clark V. Carlton, 1 N. Harop. 110. 
 
 * Wilson V. Martin, 40 N. II. 88, was an action of trespass against a deputy 
 sherifl' for attaching two harnesses belonging to the plaintiff, upon, a writ against 
 one Morrison, as the property of Morrison. It appeared that tlie plaintiff had 
 left the liarnesses with one Page to be cleaned and oiled, which had been done, 
 and that Page refusing to give them up until he was paid for his labor, it was 
 arranged between him and the defendant that they should remain in Page'a pos- 
 session until his claim for labor was paid, the defendant agreeing that if it be- 
 came necessary, or if he should desire to take them away, that he would first 
 pay to Page the amount of Page's claim. The action was brought within two 
 days after this arrangement, the plaintiff having first demanded the harnesses of 
 {he defendant, and he having refused to give them up. It was urged in argu- 
 ment that, although not liable for the original attachment, the defendant became 
 liable by the subsequent demand of the plaintiff for the harnesses and his refusal 
 to surrender them. The court said: "If we are correct in the view that the lien 
 of Page having been asserted, gave him a vested right to retain the possession 
 of the harnesses until that lieu was satisfied, or the possession parted with, and 
 the lien liad not been satisfied or the possession parted with by Page, as the case 
 distinctly finds, then the plaintiff, at the time of the demand, had no right to the 
 possession of the harnesses, and, of course, could not be injured by the refusal 
 of the defendant to yield to h:m what he was not entitled to have. The plaint- 
 iff not having, at the time of the alleged injury to the harnesses by the defend- 
 ant, either the actual or constructive possession of them, but the same being 
 then and still in the hands of his bailee, who had, and still has, a vested right 
 to retain tiiem until the satisfaction of his lien thereon, there must be judgment 
 on the verdict, properly taken in the court below, for the defendant." 
 
 Muggridge v. Eveleth, 9 Mete. 233, was an action of trespass against a sher- 
 iff for attaching a schooner on process against one Davidson. It was proved that 
 the schooner formerly belonged to Davidson, but that he sold and delivered her 
 to the plaintiff', and that the latter immediately let her by parol to one Gerrish, 
 who, at the time of the attachment, was in possession of the schocmer, claiming 
 to be hirer and master, and exercising over her the whole control. It was held 
 that as the plaintiff had neitlier the actual nor constructive possession of the 
 .schooner at the time of the alleged trespass, or at the commencement of the ac- 
 tion, he was not entitled to recover. Hubbard, J. : " Suppose, in this case, that 
 the plaintiff, instead of commencing an action of trespass, had brought replevin 
 against the sheriff, and had been put in possession of the schooner, he could not 
 retain it as against Gerrish; and if he should refuse to deliver it to him, Gerrish
 
 552 WHO MAY MAINTAIN THE ACTION. § 547. 
 
 § 547. Althougli au agister has no lien for tlie keeping of 
 animals, unless it is so expressly agreed, yet he may maintain 
 trespass against a stranger for taking them away. Bass v. 
 Pierce* was an action for breaking and entering the plaintiff's 
 close and carrying away a cow in the plaintiff's keeping. 
 The evidence showed that the plaintiff was hired by one 
 Gould to pasture the cow, and that while she was so pastured, 
 Gould had the use of her for his family, and drove her from 
 the pasture to his house at night to be milked, and back to 
 the pasture in the morning. The defendant took the cow 
 from the plaintiff's field after she had been put in by Gould. 
 
 being guilty of no laclies, could maintain an action against the plaintiff for 
 damages for not delivering it; or he might, perhaps, maintain replevin. 
 Two persons claiming a chattel under distinct titles, cannot lawfully be enti- 
 tled to the possession at the same time. The right of possession of one must be 
 paramount, and he only can maintain trespass in case of a wrongful taking of it 
 by a third person. In the present case, Gerrish was lawfully entitled to the pos- 
 session of the schooner at the time of the attachment, and he, therefore, and not 
 the plaintiff, can maintain an action of trespass for the taking." 
 
 In the foregoing case, the jilaintiff's counsel argued that it did not stand ou 
 the same ground with ordinary actions of trespass, because the suit was against 
 an officer, who claimed to hold the schooner as the property of a third person. 
 But the court said that they did not know of any such legal distinction. The 
 action was for a tort alleged to have been committed against the plaintiff. It 
 was, therefore, incumbent upon him to prove in himself a right to the possession 
 of the property taken, otherwise he had not sustained the injury of which he 
 complained. And if he did not prove it, though the defendant might be a 
 wrong-doer in consequence of taking the property, still for such wrongful act he 
 would be responsible, not to the plaintiff, but to the person who was unlawfully 
 dispossessed of his pi'operty. It was not, then, sufficient for the plaintiff to 
 show that the defendant was a wrong-doer, but he must show that the wrong 
 was done to himself. In the same case it was said by the plaintiff's counsel that 
 the defendant's act was the destruction of the entire thing, and that, therefore, 
 the plaintiff' could recover, because the general property was in him. To this 
 the court replied that the seizure of the property was neither an actual destruc- 
 tion of it, nor was it to be so implied. That if it were, then replevin would not 
 lie, because the thing itself could not be replevied. But that here the schooner 
 could be replevied by a person wrongfully dispossessed, and his writ would be 
 sustained. It was also contended that by the taking of the schooner the charter 
 was determined, and so the plaintiff had a right to resume the possession of her, 
 and consequently had a constructive possession, and might therefore maintain 
 the action. But the court said that the parol letting of the schooner to Gerrish 
 being valid, the contract of letting was not determined by the unlawful act of 
 the defendant; that in a suit by the present plaintiff against Gerrish on the con- 
 tract of charter, proof that the schooner had been unlawfully taken out of Ger- 
 rish's possession, without the act or co-operation of the plaintiff, would be no bar 
 to a recovery; that such a disposition was no determination of the contract ; and 
 that the party who was dispossessed unlawfully must repossess himself of the 
 2>roperty or obtain its value ^citing as to the validity of the parol letting of the 
 schooner, Taggard v. Loring, 16 Mass. 336 ; Thompson v. Hamilton, 12 Pick. 438; 
 Vinal V. Burri'll, 16 Pick. 406; Bixby v. Franklin Ins. Co. 8 Pick. 86). 
 
 • 16 Barb. 595. See Grinnell v. Cook, 3 Hill, 485.
 
 §§ 548, 549. IN CASE OF BAILMENT. 553 
 
 It was held that the plaintiff was an agister of the cow while 
 she was in his pasture, and entitled to maintain the action. '^^ 
 
 § 548. The general owner of personal property cannot 
 maintain trespass against one who has wrongfully taken the 
 property from the possession of a pledgee, because the former 
 is not entitled to the possession.^ Every pledgee has, at 
 common law, an absolute right to retain the possession of the 
 property pledged, not only against the pledgor, but against 
 every person not showing a paramount title, until the condi- 
 tions of the pledge have been fulfilled. To authorize an in- 
 terference with his possession, in any other case, an express 
 statutory provision changing the rule of the common law is 
 necessary.f 
 
 § 549. Persons who have only a special property in goods 
 may maintain an action for their injury — such as a carrier, a 
 
 • Gay V. Smith, 38 N. Hamp. 171. 
 
 * lu Bass V. Pierce, supra, the defendant's counsel contended thnt the fact of 
 Gould's taking and keeping the cow at night, was conclusive evidence that the 
 plaintiff was not bailee. The court replied, that it was true he was not bailee while 
 Gould had possession, but that he was such when the cow was in his pasture, un- 
 der the agreement. 
 
 t A pledge, though like a mortgage, a security for a debt, is a mere bailment 
 — a delivery of articles to be kept until the debt is paid; and it passes to the 
 pledgee a special property only, while the general property remains in the pledgor. 
 There i.s, consequently, a marked difference between these two kinds of securi- 
 ties. Possession is essential to a pledge, but not to a mortgage. The mortgage 
 is valid if duly recorded, though the mortgagor keeps possession of the property, 
 either by agreement or by the permission of the mortgagee. 
 
 In New York, it is enacted (2 Rev. Sts. 366, § 120) that, "when goods or 
 chattels shall be pledged for the payment of money, or the performance of any 
 contract or agreement, the right and interest in such goods of the person making 
 such pledge may be sold on execution against him, and the purchaser shall ac- 
 quire all the right and interest of the defendant, and shall be entitled to the pos- 
 session of such goods and chattels, on complying with the terms and conditions 
 of the pledge." It has been held, under the foregoing statute, that where prop- 
 erty is pledged for debt, and in the possession of the pledgee, a sheriff, having 
 an execution against the pledgor, may, by virtue thereof, take the said property 
 out of the hands of the pledgee into his own possession, and remove it and sell the 
 right and interest of the pledgor therein; the New York Court of Appeals being 
 equally divided on the question. But, in such case, the pledgee has a right to 
 tlie possession of the property until the ])urchaser redeems it (Stief v. Hart, 1 N. 
 Y. R. 20). But the New York statute, by its express words, is confined to a sale 
 under an execution ; and thus, a sale not of the goods themscls'es, but merely of 
 the interest of the pledgor — that is, his right to redeem them upon j)ayment of 
 the debt for which they are pledged. The reasons upon which the statute is. 
 founded are not applicable to a seizure of goods under an attachment (Browneil 
 V. Carulcy, 3 Duer, 9, per Oakley, Ch. J.).
 
 554 "WHO MAY MAINTAIN THE ACTION. § 550. 
 
 meclianic, to wliom they have been sent to be repaired, a 
 warehouse keeper, auctioneer, shopkeeper, or the master of a 
 vessel; ^ the test being tliat the plaintiff must have had actual 
 possession, or the right to take actual possession, at the time 
 the act complained of was committed.^ The captain of a fly- 
 boat, who was hired by a canal company at weekly wages, 
 was accordingly held competent to maintain trespass for cut- 
 ting a rope fastened to the vessel by which it was towed 
 ;dong an inland navigation, although the vessel and the rope 
 were the property of the company.^ Where a person hired 
 a slave to another, it was held that the owner of the slave 
 could not maintain trespass for an injury inflicted upon the 
 slave during the unexpired term for which the slave Avas 
 hired.* And where a slave w^as given to a person in trust 
 for another, who was a married woman, and the former, by 
 the terms of the trust, had possession of the slave, it was held 
 that the trustee was the proper person to bring an action for 
 an injury to the slave resulting in his death.^ But an instru- 
 ment under seal, executed by A. and wife only, releasing to 
 B. their claim to certain chattels, with a reservation that they 
 shall be held by C. & D., as trustees, for special uses, is not 
 sufficient evidence of property or possession in C. & D. to 
 enable them to maintain an action for the injuiy of such 
 chattels.^ * 
 
 9. W7ie?'e there has heen a conditional sale. 
 
 § 550. When personal property has been sold and deliv- 
 ered upon condition that the vendee make j)ayment within a 
 specified time, and it is attached in the possession of the 
 
 ■Williams v. Millington, 1 H. Blk. 81; Colwill v. Reeves, 2 Canipb. 57G: 
 Pitts V. Gaince, 1 Salk. 10; Martini v. Coles, 1 M. & S. 140. 
 
 = Lewis V. Carsaw, 15 Penu. St. R. 31 ; Corlield v. Coryell, 4 Wash. C. C. R. 
 ;571. 
 
 ' Moore v. Robinson, 2 B. & Adol. 817. " MTarlaud v. Smith, Walker, 172. 
 " McRaeny v. Jolmson, 3 Florida R. 520. 
 •= Kennedy v. Waller, 2 Hen. & Munf. 415. 
 
 * Trespass for an injury to personal property is triuisitory (Brice v. Vaudcr- 
 heyden, 9 Wend. 472;.
 
 § 551. WHERE THERE HAS BEEN A CONDITIONAL SALE. 555 
 
 vendee by one of his creditors, as the vendor has not the 
 right of present possession, he cannot maintain trespass for 
 the property against the attaching creditor of the vendee.-^ * 
 It has, however, been hekl that, if the condition has not been 
 fulfilled, the vendor may maintain an action against the 
 Avrong-doer who has the goods in his possession and refuses 
 to surrender them, notwithstanding the conditional vendee 
 has previously recovered damages for the taking.^ f 
 
 § 551. The conditional vendee of personal property has 
 
 ' Hind V. Fleming, 34 Vt. 109. '' Hasbrouck v. Lounsbury, 26 N. Y. 598. 
 
 * In Bigelow v. Huntley (8 Vt. 151), the plaintiff was a conditional vendor, 
 and it was conceded that the vendee was, by the contract, entitled to possession 
 till the time of payment expired, and the property was attached before the time 
 aiTived. The court were divided. A majority held that the plaintiff was enti- 
 tled to recover. But the judgment was put principally on the ground that the 
 property had been previously attached by another creditor, and the plaintiff had 
 receipted it to the officer, and could recover against the last officer, upon his title 
 as receiptor to the first. The action in that case was trover. 
 
 t In Hasbrouck v. Lounsbury, supra, the plaintiff agreed with one Vauder- 
 raark to sell him a horse for $65, which was to be -paid, with interest, nine 
 months thereafter. Vaudermark was to have the possession of the horse, but the 
 horse was to remain the property of the plaintiff until paid for. The defendant 
 took possession of the horse, with full knowledge of the foregoing facts, by vir- 
 tue of a judgment against Vandermark, he having bought the horse at the exe- 
 cution sale. Vandei'mark thereupon sued the defendant, and obtained judg- 
 ment against him, on the ground that the horse was exempt from levy and sale, 
 which judgment was paid. The time having exjiired in which Vandermark was 
 to pay for the horse, and payment not having been made, the plaintiff demanded 
 the horse of the defendant, and on his refusal to deliver the same, this action 
 was brought, and judgment obtained therein against the defendant, which was 
 affirmed by the Court of Appeals, on the authority of Herring v. Hoppock (15 
 N. Y. R. 40. ). Balcom, J., in delivering a dissenting opinion (in which Emott 
 and Rosekrans, .J J., concurred), said: "It seems to me to be very plain that the 
 recovery by Vandermark was a bar to the plaintiff's action. The defendant was 
 a stranger to the agreement under which the plaintiff delivered the horse to Van- 
 dermark ; and it is not at all material that he undertook to justify the taking and 
 conversion of the horse by virtue of an execution against Vandermark's property, 
 or that the latter recovered the value of the horse, on the ground that it was ex- 
 empt from levy and sale on execution ; for the defendant had no more right to 
 take and sell the horse on the execution, as Vandermark's property, than as the 
 ])roperty of a third person ; and the case is the same that it would have been if 
 the execution had been against the property of a stranger, who never had any 
 interest in the horse. It is only when the defendant can successfully defend an 
 action brought by the bailee, that the bailor can sue, notwithstanding the prior 
 action ])y the bailee. When the bailee recovers, he holds the money recovered 
 in trust for the bailor, in lieu of the property. Now, as either the plaintiff' or 
 Vandermark had the right to sue the defendant for converting the horse, the 
 judgment recovered by Vandermark was a bar to this action. It would be verj*- 
 unjust to the defendant, were the law otherwise, for he would be compelled to 
 pay for the horse twice, and be legally harassed with two actions, when he took 
 and sold the horse in good faith, supposing it was the property of Vaudermark, 
 and liable to seizure on execution against his property."
 
 55G WHO MAY MAINTAIN THE ACTION. § 551. 
 
 an assignable interest therein. If, however, he sell abso- 
 lutely, in disregard of the claim of the original owner, the 
 latter may treat the bailment as terminated, and resume pos- 
 session at once, using no violence, and doing no unnecessary 
 damage ; "' but not after a tender of the full amount due, 
 made by the vendee of the original purchaser. In Vincent 
 V. Cornell/ oxen were sold to be returned on a certain day 
 unless a given sum was paid. The buyer sold the oxen, and 
 the court held that he had a right to dispose of his posses- 
 sion with his interest. Bailey v. Colby ^ was an action of 
 trespass for two steers alleged to belong to the plaintiff. It 
 appeared that the defendant had sold the steers to one 
 Young, on condition that they should remain the defendant's 
 property till Young paid for them, and that Young sold 
 them to the plaintiff; that the plaintiff afterward offered to 
 pay the defendant for the steers, but that he declined pa}^- 
 ment, unless he was paid in addition wdiat Young owed him 
 on all other matters between them. It was held that-, upon 
 a tender by the plaintiff, to the defendant, of the amount of 
 purchase money due, the property vested absolutely in the 
 plaintiff:', and that the defendant, by interfering with it, be- 
 came a trespasser.f 
 
 ' 13 Pick. 294. " 34 N. Ilamp. 29. 
 
 * In Sargent v. Gile, 8 N. Hamp. 325, the plaintiffs delivered furniture to one 
 Wilson, upon a contract that he should keep it six months, and if in that time 
 he paid for it he was to have it; otherwise he was to pay an agreed price for the 
 use of it. Wilson sold the furniture to the defendant's, who knew nothing of the 
 contract, but bought the property supposing it to be his. It was held that the 
 bailment was ended and that the bailor might recover the goods iu trover. 
 Lovejoy v. Jones (10 Fost. 1(55), was a simihir case. 
 
 t In this case the court said: "The interest of Young was not a simple bail- 
 naent, terminable at the pleasure of the parlies, and resting on no personal confi- 
 dence, but was connected with a contract v/hich gave him the right to keep the 
 steers and use them till he paid for them, if he did that in a reasonable time, 
 and to the a!)Solute title to the property whenever such payment should be made. 
 He had an assignable interest in the steers, or. in other words, a right to sell the 
 property subject to the claim of Colby the defendant. If his sale was of his 
 interest only, he had done no wrong, and his assignee, the plaintiff, was entitled 
 to hold the property, as he held it by his contract; and Colby had no right to 
 resume the property from Bailey, any more than he had from Young himself, 
 until the reason-able time for payment had passed, and until after he had re- 
 quested payment without success. When Bailey, the plaintiff', went with Young 
 to Colby, before any demand made for payment, and tendered him the balance 
 due for the steers, the property became at once vested in Bailej% and Colby had
 
 § 552. IN CASE OF xVGENCY. 557 
 
 10. In cam of agency. 
 
 § 552. An agent in possession of personal property may 
 maintain trespass for its removal/ or the action may be 
 brought by the principal.^ * In trespass for taking and 
 
 no lono-er any right to interfere with it, and he was a trespasser, as any stranger 
 would be, for taking it away. Colby had no right to ask payment of any other 
 claim he had against Young; and Bailey, to perfect his title, was bound only to 
 pay the amount Colby had agreed to take for the steers. But if the sale by 
 Young was a sale of aa absolute title to the steers, in disregard of the claim of 
 Colby, Colby might treat the contract with Young as violated, and the bailment 
 at an end, and resume the property at ouce, doing no unnecessary damage, and 
 using no violence, without liability for any damage for the taking or for an 
 entry on land of Young or Bailey, to obtain it." 
 
 ''There is a large class of bailments where the bailment is accompanied with 
 other contracts or stipulations, which atTect its character, and give to the bailee 
 other rights not incident to a simple bailment, and where there is no personal 
 confidence and none of the characters of an estate at will, and where it would be 
 entirely consistent with the analogies existing in the case of real estate to hold 
 that the bailee has an assignable interest which may be transferred to a third per- 
 son, and where such an assignment would be enforced and protected as between 
 the parties, and as against all persons whose interests are not injuriously affected 
 by the transfer. Of the cases which present themselves as falling within this class, 
 would be the case of a pledge or pawn, where there is ordinarily nothing like 
 personal confidence, and the contract is in no sense determinable at the pleasure 
 of a party, but the bailee has an interest, or, as it might be said, a quau estate, 
 in the goods till they shall be redeemed. In the same class, would fall all the 
 various cases of lien, where tlie bailee has a right, as against the Ixiilor, to insist 
 upon the possession of the property until the lieu is duly discharged by pay- 
 ment, or the performance of other conditions." 
 
 " The law seems to be well settled in the case of a pawn, that the pawnee 
 may sell and assign all his interest in the pawn ; or he may convey the same in- 
 terest conditionally, by way of pawn to another person, without, in either case, 
 destroying or invalidating his security. But if the pledgee should undertake to 
 pledge the property (not being negotiable securities), for a debt beyond his own, 
 or to make a transfer thereof to his own creditor, as if he was absolute owner, 
 it is clear that in such case, he would be guilty of a breach of trust, and his 
 creditor would acquire no title (beyond that held by the pawnee, says Story, 
 Bailm. 215). It would admit of controversy, whether the creditor could retain 
 the pledge till the original debt was discharged, and whether the owner might 
 not recover the pledge, as if the case were a naked tort without any right in the 
 first pledgee" (Bell, ".J., in Bailey v. Colby, 34 N. Hamp. 29, citing Southerin v. 
 Meudum, 5 N. Hamp. 420; Whittemorev. Gibbs, 4 Fost. 484; Mores v. Conham, 
 Owen, 123; Ratcliff v. Davis, 1 Buls. 29; Jarvis v. Rogers, 15 Mass. 389, 408; 
 Man V. Shiffner, 2 East, 523; M'Combie v. Davies, 7 East, 6, 7 ; Goss v. Emerson, 
 3 Fost. 42 j. 
 
 ' Craig v. Gilbreth, 47 Maine, 416. " Gillett v. Ball, 9 Penn. St. R. 13. 
 
 * Where A. agrees to build a barn for B. by a specified time, the timber to be 
 taken from B.'s land, A. has not such a property in tlie timber cut and drawn for 
 the purpose of finishing the barn tliat it may be taken in execution for his debts. 
 Gallup v. Josselyn, 7 Vt. 334, was an action of trespass against a deputy sheriff 
 for attaciiing and carrying away boards and timber on a writ against one Ship- 
 ley. It was proved that some time previous to the attachment, the plaintitt" liad 
 entered into a written contract with Shipley, by which Shipley was to build a 
 barn on the land of the plaintiff, with permission to use timber upon the land of 
 the plaintiff sufficient for that purpose; that Shipley cut and took the timber 
 from the plaintiff's land in pursuance of the contract, hired it sawed, and drew
 
 558 WnO MAY MAINTAIN THE ACTION. § 552. 
 
 carrying away lumber, it appeared that it was owned by one 
 Morse, who mortgaged it to the plaintiff; that a son of Morse, 
 as his father's agent, accompanied the plaintiff to the mill 
 where the lumber lay for the purpose of giving him posses- 
 sion, and that the lumber was in charge of one Braynard, 
 who was requested by the plaintiff" to take care of it for the 
 plaintiff', as he had before done for Morse, to which Braynard 
 made no ol)jection. It was held that the plaintiff" had suffi- 
 cient possession to maintain the action against the defendant, 
 
 it from the mill on to the land of the plaintiff, to the place where it was attached 
 by the defendant; that Shipley had partly completed the barn, and was at work 
 thereon when tlie property was attached; that the timber and boards at the time 
 of the attachment were lying within twenty feet of the barn, for the purpose 
 of being used in its construction, and that the plaintiff was advising in relation 
 to the building of the barn up to the time of the attachment, which was four or 
 five days after the time fixed Ijy tlie contract for completing the barn. Judg- 
 ment having lieen rendered for the plaintiff in the County Court, the Supreme 
 Court, in affirming the judgment, said: "It may be veiy questionable wliether, 
 if Gallup had sold the land whereon the timber grew, it would not have so far 
 rescinded the contract as that Shipley would have been under no obligation to 
 fulfil. At all events, Gallup would have been liable for all damages, and if 
 Shipley had procured the timber elsewhere, Gallup would have been under obli- 
 gation to pay for the same. If the timber, either before or after it was sawed, 
 had been burnt up without fault, it would have been so far Gallup's loss as that 
 Shipley might, for the same purpose, have procured more from the same lot. It 
 follows that the timber, when cut from the stump, was the property of Gallup. 
 It could not thereafter become the property of Shipley by the labor bestowed on 
 it in manufacturing it for the use intended. So long as it could be traced and 
 ideutitled it still remained his. For at no period previous to the taking do we 
 find any act of the plaiutiff manifesting his intention to part with the property. 
 The case from Johnson, of the owner of timber being allowed to recover for the 
 property when manufactured into shingles, is a very strong case to show that 
 the owner is not divested of his ownership by any alterations the property may 
 undergo, so long as it can be identified. It is true that in that case the property, 
 i. e. trees from which shingles w-ere manufactured, was taken without the con- 
 sent of the owner. But I apprehend that the principle on vt^hich the decision 
 was founded is applicable to this case. If the owner of timiier trees is permitted 
 to retain his ownership when it is thus manufactured into boards or shingles, 
 when it is taken for that purpose without his consent, it is ditficult to see why 
 be should be divested of liis ownership when taken with his consent to be manu- 
 factured for liis use. Upon the construction of this contract, and "from the na- 
 ture of the case, we are of opinion that the property of the boards and timber for 
 the taking of which this action is brought, was in the plaintiff'. The posses- 
 sion of Shipley was that of an agent to manufacture for the plaintiff's use, and 
 he had no other possessicm than he had of the team for drawing the same; 
 nothing more than every hired man or agent has of property intrusted to him to 
 use in the business of, and for the benefit of the owner. If Shipley had con- 
 verted it to any other use, he would have been immediately liable, and if any 
 one took it from Shipley while in the employ of the plaintiff, in completing the 
 job, such person would be immediately answerable to the plaintiff, and it would 
 be a direct injury to the property of the plaintiff in the hands of his agent, and 
 of course an injury to the possession, for which the action of trespass is the ap- 
 propriate remedy."
 
 § 552. IN CASE OF AGENCY. 559 
 
 who showed no title.^ * In an action of trespass for taking 
 flour from a mill, it was proved that grain was purchased by 
 an agent of the plaintiff with money furnished by the latter, 
 and the flour in question made therefrom and set apart in the 
 
 ' Morse v. Pike, 15 N. Hamp. 529. 
 
 * Mitchell V. Stetson, 7 Cush. 435. was an action of trespass against a deputy 
 sheriff for attacliing timber and other personal property on a writ against the 
 father of the plaintiff. The plaintiff was the owner of the land from which the 
 lumber was taken, having purchased and paid for it by his own promissory notts. 
 By an agreement between him and his father, the latter was to cut off and sell 
 the timber standing on the land, and out of the proceeds to pay for the labor 
 and other charges attendant thereon, and to appropriate the balance towards 
 payment of the notes given for the purchase money. If any surplus was left, it. 
 was to be paid over to "the plaintiff. At the trial in the Common Pleas, the jury 
 found for the plaintiff, and the Supreme Court, in overruling exceptions to the 
 verdict, remarked that the most conclusive test as to the riglit of the plaintiff to 
 recover the full value of the property at the time of the trespass w^as to be found 
 in the consideration that, upon the evidence in the case, it was clear that he 
 could have maintained replevin for the property taken by the defendant. The 
 fallacy of the argument on the part of the defendant consisted in regarding the 
 services of the father in cutting and drav.'ing the lumber as creating in him a 
 right of property to the lumber itself. But there was no agreement to that effect 
 between the parties. It was the common case of principal and agent. No prop- 
 erty was vested in the father by tlie arrangement between him and his son. The 
 former was to be paid out of the property of the principal for his own labor and 
 the charges of executing the agency, but he acquired no title to the property 
 which was intrusted to his care. The right to deduct from the proceeds of the 
 property, when sold, a sum sufficient to pay for the labor and expense laid out in 
 preparing it for market, was only one mode of paying a debt fot which tlic 
 plaintiff was liable as principal, but it did not change the legal relation of the 
 parties, or vest any title to the lumber in the agent as against third persons. 
 
 Trout V. Kennedy, 47 Penn. St. R. 387. was an action of trespass for taking 
 aud carrying av/ay lumber, the title to which the plaintiff alleged he had ac- 
 quired at a sheriff's sale of the property of one Brooks. It appeared in evidence 
 that Brooks, being the owner of a saw-mill, and also of the timber standing on 
 certain land, agreed to give the use of tlie mill to the defendant for the purpose 
 of manufacturing the timber into lumber. By the agreement, the defendant was 
 to cut the logs, get them to the mill, saw them out, pile the boards, and give to 
 Brooks one-half the boards, to be divided in the pile. Under tliis contract, two 
 hundred and seven thousand feet were manufactured and piled, but the defend- 
 ant not only refused to make any division, but removed from the mill a con- 
 siderable portion of the lumber, transporting it about three miles in the direction 
 of the market. After this had been done, an execution was issued against 
 Brooks, under which the sheriff levied upon his interest in the two hundred and 
 seven thousand feet of lumber, and made a sale, returning that he had sold one 
 hundred aud three thousand five hundred feet to the plaintiff. It was held, that 
 nothing in the agreement vested in the defendant any interest so long as the 
 lumber remained undivided; that it simply constituted him the agent of the 
 owner to cut the logs, haul them to the mill, saw them into boards, and place 
 the boards in piles, and that the provision for payment was equivalent to an 
 allowance by the principal to the agent of one half the product of his labor. 
 Held further, that the plaintiff, by his pnrchase at the sheriff's sale, acquired 
 title to the whole of the interest of the owner, and not to the half of the number 
 of feet returned as sold, and that as the taking was under a claim of right to the 
 whole, the hauling away was not a succession of disconnected trespasses, but one 
 continuous act, for which damages were recoverable in a single suit.
 
 560 WHO MAY MAINTAIN THE ACTION. § 553. 
 
 mill for delivery to him. It was held that the plaintiff was 
 entitled to recover, although it was proved that he said he 
 would look to his agent for the money furnished.^ Boynton 
 V. Turner ^ was an action of trespass for upsetting and break- 
 ing the stage coach of the plaintiffs intestate. It appeared 
 that the minor son of the intestate hired a horse and chaise 
 to carry home his sick brother, telling the livery stable keeper 
 of whom he hired it that he could not then pay him, and that 
 his father received all of his wages ; and that upon telling 
 his father how he had obtained the conveyance, his father 
 directed him to pay for the same out of his wages. The 
 chaise, while in the son's possession, having been upset and 
 badly broken by a stage coach driven by the defendant, the 
 question was, whether the intestate had such a property in 
 the chaise as would entitle him to maintain the present ac- 
 tion. The Supreme Court, in holding the affirmative, said : 
 " The case is to be considered as if the intestate had given 
 his son a previous authority to hire the horse and chaise. 
 This ratification of his son's conduct had relation back to the 
 hiring, and so the special property must be considered to 
 have been in the father from the beginning. He was then 
 liable to the general owner, and therefore entitled to this ac- 
 tion to indemnify himself for such liability." 
 
 § 553. The lien of a factor continues only while he has 
 the possession. Therefore, if he pledges the goods for his 
 own debt, or suffers them to be attached, or otherwise parts 
 with them voluntarily, the lien is lost, and the owner may 
 trace and recover them, or he may sue in trespass, if they are 
 forcibly taken ; for his possession continued notwithstanding 
 the lien ; and none but the factor himself can set up this 
 privilege against the owner. Holly v. Huggeford ^ was an 
 action of trespass against a deputy sheriff for attaching the 
 goods of the plaintiff, while in the custody of one Lobdell 
 to whom the goods had been consigned to sell on commis- 
 
 ' Thomas v. Snyder, 23 Penn. St. R. 515. 
 
 ' 13 Mass. 391. '8 Pick. 73,
 
 § 554. TENANTS IN COMMON. 561 
 
 sion. The principal objection that was made to the verdict, 
 which was for the plaintiff in the court below, arose from 
 the supposed lien which Lobdell had on the goods attached 
 as factor, he having accepted drafts drawn by the plaintiff, 
 the balance at the time of the attachment being in his favor. 
 It was argued that his lien so destroyed the right of posses- 
 sion in the plaintiff, that he could not maintain the present 
 action. It was, however, held that the objection was not 
 tenable.* 
 
 11. Tenants in common. 
 
 § 554. Although an action of trespass may be maintained 
 by a tenant in common of goods against his cotenant,^ yet, 
 as tenants in common are seized or possessed of the subject 
 
 ' Diiiley v. Grimes, 27 Md. 440. 
 
 * The right of lien at common law was originally confined to cases where 
 persons, from the nature of their occupation, were under obligation, according 
 to their means, to receive and be at trouble and expense about the personal prop- 
 erty of others, and was limited to certain trades and occupations necessary for 
 the accommodation of the public — such as common carriers, innkeepers, farriers 
 and the like. But in modern times, the right has been extended so far, that it 
 may now be laid down as a general rule, to which there are few exceptions, that 
 every bailee for hire, who by labor and skill has imparted an additional value to 
 the goods of another, has a lien upon the property, for his reasonable charges in 
 relation to it. and a right to retain it in his possession until those charges are 
 paid. This includes all such mechanics, tradesmen and laborers, as receive 
 property for the purpose of repairing, cleansing or otherwise improving its con- 
 dition (Wilson V. Martin, 40 N. Ilamp. 88). 
 
 Where a person, who has agreed to transport goods, after part performance, 
 fails to fulfil Lis contract, he cannot keep the goods, on the ground of a lien, for 
 what he has done (Hodgdon v. Waldron, 9 New Hamu. 66). Alien for the price 
 of labor and services performed, al)out goods bailed, is in the nature of an im- 
 plied contract that the party who has performed the labor shall bold the goods 
 uniil he receives the pay for doing what he had undertaken to perform al^out 
 them at the request of the owner. But if he has not fully pjrformed what he under- 
 took to do. such a contract cannot fairly l)e inferred. And besides, to allow him 
 to hold the goods, might, in efi'ect, in many cases, deprive the other party of the 
 right to have the damages for tlie non-performance of the contract deducted. 
 He might be compelled to pay the amount demanded in order to gain possession 
 of his goods. According to decisions in some of the States, he would not be 
 entitled to compensation, and of course could have no lien. In New Hampshire, 
 although he may recover the value of the benefit his employer has received, the 
 other party is cntitleri. if he elects, to have the damages "he has sustained by 
 reason of the non-performance of the residue deducted; and those damages be- 
 ing of uncertain amount, it is not only uncertain what the bailee is entitled to 
 receive, but whether he will in fact, on the adjustment, be entitled to receive 
 anytiiing. Under such circumstances, he cannot be permitted to hold the goods 
 by virtue of a lien, until this is settled (Brittoa v. Turner, 6 N. H. 481). 
 As to liability of jjrincipal for wrongful acts of agent, see ank^ § 41). 
 Vol. I.— 36
 
 562 WHO MAY MAINTAIN THE ACTION. § 555- 
 
 of the tenancy per my et per tout — by the moiety and by 
 all, — and each has possession as well of every part as the 
 whole, one tenant in common cannot maintain such an action 
 against his cotenant, merely for taking and holding the 
 thing held in common. Littleton ^ says : " If two be pos- 
 sessed of chattels personal in common, by divers titles, as of 
 a horse, an ox, or a cow ; and if one take the whole to him- 
 self out of the possession of the other, the other hath no 
 remedy but to take this from him who hath done to him the 
 wrong, to occupy, <fec., when he can see his time." Since a 
 right to take, and a right to resist the taking, cannot exist 
 in different persons at the same time, it follows that a tenant 
 in common of personal property cannot take the property by 
 force from his cotenant. But if he can get possession with- 
 out a resort to force, he can lawfully hold the property and pro- 
 tect his possession by force.^ 
 
 § 555. One tenant in common can sell and convey his in- 
 terest in the joint projDerty, and the purchaser will become 
 a tenant in common with the other owner, subject to the 
 rights and oblis^ations of the person whose interest he has 
 purchased. If one tenant in common sells the entire chattel 
 without the consent of the other tenant, the purchaser ac- 
 quires a right to the possession of the whole, the possession 
 of one, being the possession of both. The other tenant is 
 not divested of any right by such sale. He may, at his 
 election, affirm the sale and sustain an action against his co- 
 tenant for a moiety of the consideration received, or bring 
 an action of trespass. If he do the latter, he will not there- 
 by affirm the sale ; though it is probable that a recovery and 
 satisfaction in trover against the cotenant, would have the 
 effect to vest the whole chattel in the purchaser.^ * 
 
 ' Litt. 200, a, § 323; and see Arch. Civ. PI. 39; 1 Chit. PI. 170; Ham. K P. 
 250. 
 
 ^ Coke on Litt. 199, I ; Hemdon v. Bartlett, 4 Porter, 481 ; King v. Phillips, 
 1 Lansing, 421. 
 
 ' Welch V. Clark, 12 Vt. 681. 
 
 * An executory agreement made by one of two owners of personal property to 
 sell it, does not disprove their joint ownership or bar their joint recovery in an ac-
 
 § 550. TENANTS IN COMMON. 563 
 
 § 556. When personal property is indivisible, and for 
 that reason cannot be partitioned, there is no way in which 
 one of several owners can have the use of it, if the other, be- 
 ing in possession, refuses to surrender it.^ * As a general 
 rule, the property held in common cannot be divided unless 
 by the consent of all the owners. One tenant in common 
 cannot set apart a portion of the common property for his 
 cotenant, and hold the remainder as his own, however just 
 may be the division. This must be so, when the property 
 held in common consists of several things of different quali- 
 ties or value, or where it embraces but one thing which can- 
 not be divided without destroying its nature or identity.^ 
 Where, however, personal property, severable in its nature, 
 in common bulk, and of the same quality, is owned by sev^- 
 eral as tenants in common, each tenant may sever and appro- 
 priate his share, if it can be determined by measurement or 
 weight, without the consent of the others, and sell or destroy 
 it without being liable to them in an action for the conversion 
 of the common property.^ f So, likewise, an entire change 
 
 tion of trespass for taking and carrying it away. The question in such case, is not 
 whether both the pluintitts made a contract to furnish the property, but whether 
 they both owned it, and had the possession, or a riglit to the immediate posses- 
 sion, wlien the alleged trespass was committed (Talmadge v. Scudder, 38 Penn. 
 St. R. 517). 
 
 Where wheat, belonging to two persons, is mingled in a common bin, with 
 the knowledge and assent of both parties, they are thereby made tenants in com- 
 mon of it; and the disposal of the entire mass by one of the cotenants will 
 render him liable to an action at the suit of the other (Nowlen v. Colt, 6 Hill, 
 461). 
 
 ' Hyde v. Stone, 9 Cowen, 230; Gilbert v. Dickerson, 7 Wend. 449. 
 
 ■' Forbes v. Shattuck, 23 Barb. 568. ' Tripp v. Riley, 15 Barb. 333. 
 
 * By the civil law, tenants in common were under an implied engagement to 
 divide the property, held in common, when any one of the parties concerned 
 desired it (Domat, B. 2, tit. 5). By several ancient English statutes, the sume 
 result might be attained with respect to real property by the aid of the Court of 
 Chancery (Coke's Inst, by Thomas, vol.1, p. 789, u. 20). The substance of these 
 statutes was early adopted in New York, and is still retained. 
 
 Where, by the terms of a contract l)etvveen A. and B., a crop of grain raised 
 by B. on the land of A., is to be secured in the barn of A., and there threshed 
 by B., and divided between them, an attachment of any part as the share of B., 
 before the crop is thus secured, threshed, and divided, does not work a sever- 
 ance of the shares. If, therefore, after such attachment, A. takes the part at- 
 tached and deposits the same in his barn, such taking is not a trespass as against 
 the officer making the attacliment (Bishop v. Doty, 1 Vt. R. 37). 
 
 t In an action of trover, for carrying away a quantity of nnthreshed wheat 
 and straw, it appeared that the plaintiff and defendant cultivated a farm on
 
 564 WHO MAY MAINTAIN THE ACTION. § 557. 
 
 may lawfully be wrought in a chattel by a tenant in common 
 in possession, if the so doing is the only means of preserving 
 it ; — as in the case of the extraction of oil from a whale, 
 which is in fact, a preservation of the common property. 
 There the chattel is turned to its customary and profitable 
 use — to the only use ultimately intended or valuable. And 
 although the form is altered, the change will not prevent the 
 other tenant from taking and using it ; and without this 
 change the property will be lost.^ 
 
 § 557. But one tenant in common cannot lawfully do 
 anything to the common propei'ty which may diminish its 
 value as a whole, or injure or endanger the interest of his 
 cotenants ; such as severing and converting a portion of the 
 growing crop of grain before it is ready for harvest or 
 ultimate use ; severing and converting part of a number of 
 animals in the process of fattening, to be butchered for sale 
 or food ; or severing and converting a portion of any common 
 property in the process of being improved for the benefit 
 of the owners. In such cases, each tenant owes to the 
 other tenants his exertions according to the nature and 
 terms of his connection with them, for the preservation and 
 improvement of the common property; and the property as 
 between them, is not severable until its maturity.^ In 
 
 shares; that it was the defendant's duty to harvest, thresh, and clean the wheat 
 and to deliver one-half of it to the plaintiff at his barn on the farm, measured 
 in the half bushel; that instead of taking all the wheat to the plaintiff's baru, 
 to be threshed and cleaned there, the defendant was proceeding to divide it in 
 the sheaf, and to take one half to his own barn, and the other to the plaintifPs, 
 when the plaintiff came, forbade the defendant's drawing or touching any of it, 
 and caused the defendant and the men in his employ to be arrested for what 
 they had done. The defendant got no more than his half of the whole wheat; 
 but to be entitled to that, he was bound to thresh and clean the plaintiff's half 
 and deliver it at his barn by measurement. If the wheat was to be considered 
 as divided in the sheaf, then the defendant got inorethan his sliare, by the value 
 of the labor necessary to thresh and clean the plaintiflf's half. There was evi- 
 dence tending to prove that the performance of this labor by the defendant was 
 prevented by the 2)laintiff, v.ho claimed the whole wheat, and took, threshed and 
 disposed of his own half, as divided by tl'e defendant, and took possession of 
 and raked the tield. It was lield that the plaintiff, by this claim and conduct, 
 had waived the performance by the defendant, of any further acts as a tenant in 
 common (Forbes v. Shattuck, 22 Barb. 5G8). 
 
 ' Fennings v. Grenville, 1 Taunt, 241. ^ Forbes v. Shattuck, supra.
 
 §558. TENANTS IN COMMON. 505 
 
 Reclingtou v. Chase,^ tte plaintiffs owned an undivided third 
 part of certain shot iron. The whole was taken by the 
 defendants who had purchased the other two thirds, and 
 mixed by them wdth other iron, and manufactured into 
 various articles, so that the shot iron could no longer be 
 traced or identified ; and these articles were sold by the 
 defendants. It was held that as the common property had 
 been placed as completely beyond the plaintiffs' reach, as 
 the destruction of it would have done, they were entitled to 
 recover, 
 
 § 558. Tenants in common of personal property must 
 joiu in an action at law for the recovery of damages caused 
 by an injury to it. In case of the death of any part owner, 
 after the injury is sustained, the right of action survives to 
 the surviving part owners, who must afterward pay to the 
 personal representatives of the deceased the value of his 
 share.^ * There is a conflict of authority as to the effect of a 
 settlement by one of several tenants in common for the 
 wrongful taking of the common property. In New York, 
 such a settlement has been held only to inure as a settlement 
 of the damages belonging to the party settling.^ f On the 
 
 ' 44 N. Hamp. 36. =* Bucknam v. Brett, 35 Barb. 596. 
 
 ' Gock V. Keneda, 29 Barb. 120. 
 
 * Although the general rule is, that tenants in common of personal property 
 must join in an action to recover for an injury, because the injury is joint, and 
 tliey recover joint damages; yet the injury is not joint when the share of one 
 tenant in common has been lawfully taken and sold ; for as it respects that one, 
 the justification is complete. In the latter case, the tenants in common do not 
 suffer a joint injury, and they are not jointly interested in the damages to be 
 recovered (Lothrop v. Arnold, 25 Maine, 136 ; Melville v. Brown, 15 Mass. 83). 
 
 Where it appears, that some of several plaintiffs were made parties without 
 their knowledge or consent, a nonsuit will be granted as to all. In Brown v. 
 Wentworth, 46 N. Hamp. 490, which was an action of trespass for destrojing 
 a lead {)i[)e, four of the five coplaintiffs showed to the court, tliat the action was 
 brought without their consent, knowledge, or authority, and asked to be non- 
 suited, which was done as to all the plaintiffs. It did not appear that any 
 application to those four plaintiffs to permit their names to be used in the action, 
 or an offer of indemnity to them had ever been made until after they had 
 presented their petition to the court to become nonsuit. 
 
 t In this case, the court said : "It may be argued that as tenants in common 
 must unite in an action for the conversion of their property, or the defendant 
 may defeat the action l)y taking the objection in his pleadings, the release by 
 one of the plaintiffs will of necessity defeat any action, as his release will estop 
 him. Let us advert to some principles well settled, relating to tenants in
 
 5CG WHO MAY MAINTAIN THE ACTION. § 558. 
 
 other liancl, in Maine, the release of a trespasser by a tenant 
 in common is said to discharge the action as to his cotenauts 
 as well as himself. Bradley v. Boynton/ in which the latter 
 position was taken, was an action of trover brought to 
 recover the value of certain mill logs cut and carried away 
 by one Grant as a trespasser, and by him delivered to the 
 defendants in payment of advances made to him. The 
 plaintiff and one Chase being at that time mortgagees and 
 tenants in common, a settlement for the trespass was after- 
 ward made with Grant by Chase who released him from all 
 liability as well for himself as for his cotenants. The 
 question raised and decided in the affirmative, was whether 
 the settlement and release of one tenant in common bound 
 his cotenant and transferred the j)rop6rty to the trespasser. 
 The reasoning of the court was as follows : " A settlement 
 and release of a trespass necessarily operates as a transfer 
 of the property to the trespasser. And when a release of 
 
 common of personal property. One tenant in common has no authority to 
 dispose of the property, so as to divest the title of his cotenant. If he cannot 
 sell the property and make a good title to the vendee, what authority can he 
 have to release to a -wrongdoer the cause of action which belongs to the tenants 
 in common, and which would not survive to him alone ? What right has he to 
 settle the action, and thus deprive his cotenant of any remedy ? If he settles the 
 action, and gives a release for a valuable consideration, this would be equivalent to 
 a sale of the property, and he has no power to sell his cotenant's share. It may 
 be said that a cotenant may defeat the action by refusing to become a party to it. 
 I apprehend that this is not so. If he should refuse to unite in the action, the 
 law would, I think, afford redress to the other cotenant. I will not stop to 
 inquire in what manner this could have been done prior to the code. Now, if 
 the consent of any one who should join in the action, cannot be obtained, he 
 may be made a defendant, the reason thereof being stated in the complaint. 
 In the present case, the plaintiffs had united in the action; and in my opinion, 
 one of them could not release, discharge, or settle the action, so as to defeat the 
 right of the other to proceed and recover his portion of the damages. He 
 could settle for his portion of the damages; but he could no more settle for the 
 portion of his cotenant, than he could sell the share of his cotenant. * * * 
 If the trespasser may settle with one of the tenants in common, before action, 
 for his damages, without affecting the right of the other cotenants to sue, I 
 can see no reason why they may not settle with one of the tenants, after the 
 action is brought, without affecting the right of the othor cotenants to proceed in 
 the action. And as a tenant in common has no right to sell the entire property, he 
 has, in my opinion, no right to release the entire cause of action. It does not 
 belong to that class of cases where one of the joint obligees, promisees cove- 
 nantees, may accept jjerformance, and give an acquittance " (referring to Baker 
 V. Jewell, 6 Mass. 460). 
 
 The settlement with one of two partners who are jointly liable for taking 
 personal property, for one half of the property taken, will not prevent a recovery 
 of the other half (McCallis v. Hawes, 38 Maine, 566). 
 
 ' 23 Maine, 287.
 
 § 559. POSSESSION OF GOODS OBTAINED BY FRAUD. 567 
 
 one tenant in common discharges tLe cause of action, it 
 must have a like effect. The plaintiff would avoid this 
 result by showing that the mill logs, after they were cut, 
 became the property of the plaintiff and of Chase ; that one 
 tenant in common of personal property can sell his own 
 share only, and that the settlement and release of Chase 
 was an attempt to sell the whole property ; and that it could 
 not therefore destroy the right of property in the plaintiff. 
 These positions are correct so long as the common property 
 exists unaffected by the illegal acts of others, and subject to 
 the possession of the tenants in common. But when they 
 have been deprived of the possession and enjoyment of it by 
 a wrong-doer, their right to compensation for that injury is a 
 joint one ; and their remedy is by a joint action. And 
 hence it is, that one of them may release and discharge both 
 the joint right of action and the action itself." 
 
 12. Where possession of goods is obtained by fraud. 
 
 § 559. If a person obtain goods by a sale which is void 
 in respect to himself, and transfer them to a bona fide pur- 
 chaser without notice, the owner cannot maintain trespass 
 for them.-^ When goods are unlawfully sold and delivered 
 by an officer to a purchaser, the weight of authority is, that 
 trespass cannot be maintained against the purchaser, unless 
 the goods have come to his possession, in part at least, 
 through his own fault.^ * The reason of this is not that the 
 
 ' Mowrey v. Walsh, 8 Cowen, 238; Parker v. Patrick, 5 Term R. 175; Ladd 
 V. Blunt, 4 Mass. 402; Hunter v. Perry, 33 Maine, 159. 
 
 ' Bacon's Abr. E, 2; Wilson v. Barker, 4 B. & Ad. 614; Fiero v. Betts, 2 
 Barb. 633; Justice v. Mendell, 14 B. Mon. 12. 
 
 * In Cooper et al. Assignees of Johns v. Chitty, 1 Burr. 32, it was considered 
 an admitted point tliat the innocent vendee of goods wrongfully seized by the 
 sherill could have no title under the sale, but that he is liable to an action. And 
 in Balme et al. v. Ilutton et al. <J Bing. 471 (23 Eng. C. L. 338), Tiudal, C. J., 
 said : " Servants of the bankru])t, judgment creditors who set the law in motion, 
 vendees at the sheriff's sale, and all other jiersons who assist in selling, dispos- 
 ing, or removing the goods of a bankrupt, would confessedly be held guilty of a 
 wrongful taking." 
 
 lie who assumes to deal or intermeddle with personal property which is not 
 his own, must see to it that he has a warrant therefor from some one who is 
 tiuthorized to give it. If he buys from, or consents to act by the direction of
 
 568 WHO MAT MAINTAIN THE ACTION. § 559. 
 
 owner's riglit to immediate possession is defective, but be- 
 cause the purchaser's taking is held not to be unlawful. 
 Nor is this doctrine peculiarly applicable to the case of an 
 illegal seizure by an officer. If one -who is not an officer tor- 
 tiously seize my goods, and afterward deliver them to another 
 not a party to the original wrong, I cannot maintain tresj)ass 
 against that other, though I have a right to their present en- 
 joyment, and may recapture them. But we have seen ^ that 
 when possession has been acquired by trespass upon the first 
 trespasser, the second taker is responsible to the owner in 
 trespass.'^ It is laid down by an old authority that, " If I 
 bail goods to a man, who gives or sells them to a stranger, 
 and the stranger takes them without delivery, I shall have 
 trespass ; for, by the gift or sale, the property is not changed, 
 but by the taking. But if the bailee delivers them to the 
 stranger. I shall not have trespass." ^ Again, it is said that 
 if an infant give or sell his goods and deliver them with his 
 own hands, the act is voidable only. But if he give or sell 
 goods, and the donee or vendee take them by force of the 
 gift or sale, the act is void, and the infant may bring tres- 
 pass.'* And where a sheriff sold on execution goods belong- 
 ing to a third person, and the purchaser did not immediately 
 take them, it was held, that he acquired no possession as 
 against the owner.^ * Upon proof of the original tortious 
 
 another, he must see to it that in the responsibility of such other, he can find 
 indemnity if his confidence is misplaced (Sjiraights v. Hawley, 39N. Y. 441 ; An- 
 derson V. Nicholas, 5 Bosw. 121, and cases cited). 
 
 At common law, the right of property in things sold is changed permanently 
 by a sale in market overt; so that whoever buys goods and chattels in the open, 
 public, legally constituted market, acquires an indefeasible title to the chattels 
 so purchased, unless he buys with knowledge of an infirmity of title on the part 
 of his vendor (2 Elk. Com. 449; Crane v. London Dock Co. 33 L. J. Q. B. 224). 
 But one who buys goods by private contract, and not by public sale in market 
 overt, acquires no better title than that possessed by his immediate vendor. 
 
 ' Ante, § 425. 
 
 - Acker v. Campbell, 23 Wend. 372; Talmadge v. Scudder, 38 Penn. St. R. 
 517; Marshall v. Davis, 1 Wend. 109; Nash v. Mosher, 19 Wend. 431. 
 
 '' Viner's Abr. Trespass, M, PI. 11, 12. 
 
 'l^oof V. Stafford, 7 Cowen, 179; Fonda v. Van Home, 15 Wend. 631; Ely 
 V. Ehle, 3 N. Y. 506. 
 
 ' Austin V. Tiiden, 14 Vt. 325. 
 
 * In Storm v. Livingston, 6 Johns. 44, it was proved that a constable had
 
 § 559. POSSESSION OF GOODS OBTAINED BY FRAUD. 5G9 
 
 taking, it lies on the purchaser or bailee in order to protect 
 himself from liability as a trespasser, to show that he came 
 to the possession of the property for a lawful purpose, and in 
 perfect good faith, by delivery from the wrong-doer. That 
 
 tortionsly taken the plaintiif 's horse and sold it at auction to the defendant, who 
 kept it. It was held, that trover would not lie until demand and refusal, because 
 the defendant came lavv'fully by the horse. The decision involved a denial that 
 trespass would lie, for a taking which warrants an action of trespass is neces- 
 sarily a conversion (see Talmadge v. Scudder. 38 Penn. St. R. 517). The follow- 
 ing cases of trover are in point: In Hurst v. Gwennap, 2 Stark. 306, the assignees 
 of a bankrupt sustained an action of trover without a previous demand for goods 
 sold to tiie defendant by the bankrupt after a secret act of bankruptcy of which 
 the defendant had no knowledge. Lord EUeiborough said: " The very act of 
 taking the goods from one wdio had no right to disi)Ose of them was in itself a 
 conversion." And this was confirmed by the whole Court of King's Bench (s. 
 p. Soames v. Watts, 1 Car. & P. 400; Yates v. Carnsew, 3 Car. & P. 101). In 
 Hyde v. Noble, 13 New Hamp. 494, it was decided that the taking of chattels, 
 claiming them under a sale l)y one who had no power to sell, was a conversion, 
 and rendered the buyer liable to the owner in an action of trover without a pre- 
 vious demand. The following cases of replevin are equally in point: In Parsons 
 V. Webb, 8 Greenl. 38, A. delivered his horse to B., to be sold for A.'s benefit. 
 B. sold the horse to C, his creditor, in payment of his debt, and C. sold the 
 horse to D. It was decided, that A. might maintain an action of replevin 
 against D. without first demanding the horse. So, in Galvin v. Bacon, 2 Fairf. 
 28, where A., the bailee of a horse, sold him to B., and B. sold him to C, 
 neither B. nor C. having any notice that the horse was not the property of 
 A., the bailor maintained an action of replevin against C. without a previous 
 demand. In all these cases, in which trover or replevin was held to be well 
 brought, trespass might have been sustained, according to the well established 
 law of actions. 
 
 In Marshall v. Davis, 1 Wend. 109, it was held, upon the authority of 
 Bacou's Abr. Trespass, C, that replevin could not be maintained by a bailor 
 against one who buys goods of a bailee who has no authority to sell them. 
 Savage, C. J., stated the ground of that decision to be, that there was, technic- 
 ally, no taking of the property to subject the defendant to the action of trespass, 
 he having obtained possession by delivery from a person having a special prop- 
 erty therein; and that the pro|)er remedy was detinue, or trover. And see to 
 the same effect Barrett v. Warren, 3 Hill, 348; Pierce v. Van Dyke, 6 Hill, G13; 
 Nash V, Mosher, 19 Wend. 431. 
 
 "Whoever," said Weston, J., in Galvin v. Bacon, 2 Fairf. 30, "takes the 
 property of another without his assent, express or implied, or without the assent 
 of some one authorized to act in his behalf, takes it, in the eye of the law, tor- 
 tionsly. His possession is not lawful against the true owner. That is unlawful 
 which is not justified or warranted by law ; and of this character may be some 
 acts which are not attended with any mortal turpitude. A party honestly and 
 fairly, and for a valuable consideration, l)uys goods of one who had stolen them. 
 He acquires no rights under his purchase. The guilty party had no riglitful pos- 
 session against the true owner, and he could convey none to another. The 
 purchaser is not liable to be charged criminally, because innocent of any in- 
 tentional wrong, but the owner may avail himself against him of all civil 
 remedies provided by law for the protection of property. If the bailee of 
 property for a special [jurpose sells it without right, the purcliaser does not 
 thereby acquire a lawful title or possession. In the case before us, the de- 
 fendant came honestly by the horse, but he did not receive possession of him 
 from any one authorized to give it, and is therefore liable ckiliter to the true 
 owi\er for the taking as well as for the detention."
 
 570 WHO MAY MAINTAIN THE ACTION. § 560. 
 
 being proved, and that he was guilty of no fault, he would 
 be protected against liability as a tortious taker of the prop- 
 erty, although, even in that case, he woidd be answerable to 
 the owner for the property after demand and refusal to de- 
 liver it, for he would not acquire any title to the property by 
 his purchase.^ * But the owner of goods wrongfully taken 
 after releasing the trespasser, cannot sue the vendee of the 
 trespasser.^ 
 
 § 560. AVhen a sale ' has been procured by fraud, the 
 vendor still retains his legal right in the goods, unless, after 
 discovering the fraud, he assent to and ratify the act of sale 
 positively, or by such delay in reclaiming the goods as would 
 authorize a jury to infer assent.^ This rule applies w^hen the 
 original taking of the goods was by permission of the owner, 
 who was led to give the permission by such a fraudulent 
 deceit on the part of the purchaser as avoids the sale if the 
 seller chooses to avoid it.^ It has been held, that one who 
 acquires possession of goods under a bill of sale given as 
 secuiity for a contract which at the time he intended not to 
 fulfil, is as much a trespasser as though the bill of sale had 
 never passed.^ f 
 
 ' Tallmaa v. Turck, 26 Barb. 167; Ely v. Ehle, 3 N. Y. 506. 
 
 ^ Woolsey v. Seely, Wright, 360. 
 
 ' Ash V. Putnam, 1 Hill, 302; Root v. French, 13 Wend. 570. 
 
 * Tallman v. Turck, supra. 
 
 ' Butler V. Collins, 12 Cal. 457; M'Carty v. Vickery, 12 Johns. 348, contra. 
 
 * Symonds v. Hall, 37 Maine, 354, was an action of trespass de honis asportatis 
 for a quantity of hay. It appeared that the plaintiff had leased his farm to one 
 Foster to be cultivated on shares; that, after the hay had been divided on the 
 farm, it was taken by Hall, one of tlie defendants, on an execution against Fos- 
 ter, and that Morrill, the other defendant, bought the hay at sheriff's sale. The 
 court, ])er Howard, J., in holding that the plaintiff was entitled to recover, said: 
 "In taking and selling the hay of the plaintiff on an execution against Foster 
 after the division had been eflected, the defendant Hall was a trespasser ; and 
 Morrill, the other defendant, by purchasing that portion of the hay and remov- 
 ing it, with the assistance of the officer, became a joint trespasser; and both will 
 be held responsible to the plaintiff for the damages accruing to him from that 
 sale of his hay. The officer Hall is also accountable in like manner for taking, 
 selling, and delivering to others the remaining portion of the plaintiff's hay, in 
 which Morrill did not participate, and for which he is not accountable upon the 
 pleadings and proof. The plaintiff is entitled to judgment against both defend- 
 ants for the joint trespass, but not for the several trespass of Hall. Or he may 
 discontinue as to Morrill, and lake judgment against Hall for both trespasses." 
 
 t In M'Carty v. Vickery, supra. Vickery brought an action against M'Carty
 
 § 561. POSSESSION OF GOODS OBTAINED BY FRAUD. 571 
 
 § 561. To render a sale of property void as to creditors, 
 both tlie vendor and vendee must participate in the intent 
 to delay the creditors of the vendor, at least to the extent of 
 the vendee's having knowledge of such intent on the part of 
 the vendor.^ The old cases, before the statute of frauds,^ 
 have said, that if a man, after judgment, and to defraud exe- 
 cution, sell his goods for a valuable consideration, and the 
 buyer knew of the judgment, the sale is void.^ But the 
 modern doctrine is not merely that the purchaser must know 
 of the judgment. That fact will not, of itself, defeat a ho7ia 
 jide sale, or make it fraudulent in law.'^ The rule is, that 
 
 in the court below for cutting and carrying away wood, to which the de- 
 fendant pleaded the general issue. On the trial it was prov^ed that one Fake 
 purchased the wood of the plaint'ff on credit, and that M'Carty went his se- 
 curity; that the wood was delivered to Fake, and M'Carty took it away 
 although forbidden by tlie plaintiff, who charged that a fraud had been prac- 
 ticed on him, and that M'Carty was a party to the fraud. Fake and M'Carty 
 were both supposed to I>e insolvent. The Supreme Court, in reversing the judg- 
 ment, which was for the plaintiff, said: "Although it is pretty evident that 
 the plaintiff below was deceived in the sale of his wood to Fake, yet there 
 is no principle upon which an action of trespass can be sustained against the 
 defendant. The wood had actually been delivered to Fake. The plaintiff was, 
 therefore, divested of the possession which is necessary to the support of an 
 action of trespass. Had not the plaintiff parted with the jDossession, the insolv- 
 ency of the purchaser might have justified a refusal to deliver. But by the 
 delivery, the property was changed, and trespass could not be maintained." 
 
 In an action of trespass for wrongfully seizing goods under execution, a plea 
 is good which avers that the defendant, as agent of the plaintiffs in the execu- 
 tion, directed the marshal to levy on goods in the hands of another than the 
 defendant, because they had been fraudulently sold to him by the defendant 
 (McNall V. Vehon, 32 111. 499). 
 
 " Leach v. Francis, 41 Vt. 670 ; Eowley v. Bigelow, 12 Pick. 307. 
 
 = 29 Car. II, c. 3. = Under the 13 Eliz. 
 
 * In New York, in an action brought to recover the value of certain goods, 
 which, it was alleged, had been forcibly and wrongfully taken from the plaint- 
 iff's possession, the question was whether the defendant, as sheriff, could right- 
 fully seize the goods in question, and take them from the possession of tlie 
 plaintiff, by virtue of attachments issued by a justice of the Supreme Court, in 
 actions in that court against A. and B., on the ground that they, with the intent 
 to hinder, delay and defraud their creditors, assigned the goods in question to 
 C, who took them with the like intent, and transferred the same to the plaint- 
 iff, with notice of the fraud. It was held that the attachments authorized the 
 sheriff to seize any property the defendants named in them had disposed of, in 
 any manner, with intent to defraud their creditors; that the persons wlio pro- 
 cured the attachments were not to be deemed mere creditors at large of A. and 
 B., after their attachments were serveil, but creditors having a specific lien upon 
 the goods attached; and that the sheriff, as their bailee, had a like lien, and had 
 a right to show that the plaintiffs title was fraudulent as against the attaching 
 creditors (Uinchey v. Stryker, 28 N. Y. R. 45). The court said: "The fact 
 that an attachment is issued, in a case like this, before the debt is conclusively 
 established on which it is founded, and that it may subsequently be shown by
 
 572 WHO MAY IMAIKTAIN THE ACTION. § 561. 
 
 tlie pnrcbaser, knowing of the judgment, must purchase, 
 with the view and purpose to defeat the creditor's execu- 
 
 tbe defendant in the attachment, that there was no such debt, is not a sufficient 
 reason for holding that the attaching creditor canuot show that the property 
 attached is, in fact, the debtor's, when sued for it by a third person who claims 
 it by a title which is fraudulent as against the attaching creditor. Such third 
 person may prove that no such debt existed, until it is established by a judgment 
 in the attachment suit. He may, therefore, defeat the attaching creditor on. 
 either of two grounds: 1st. That there was no debt to justify the issuing of the 
 attachment; 2d. That he had a good title to the property in dispute when it 
 was attached. Of course, the creditor or officer must first prove the existence of 
 the debt for which the attachment was issued, when such debt has not been 
 established by a judgment against the debtor. When that is done, the judg- 
 ment proves it. It certainly is not an insuperable objection to permitting all of 
 this to be done, simply because it authorizes the trial of two different issues in the 
 same action. Indeed, two different issues must be tried in the action, if formed 
 by the pleadings, though the creditor has previously recovered a judgment against 
 his debtor, and is able by it to establish conclusively the existence of his debt. 
 When the creditor has no such judgment, the party claiming that the property 
 did not belong to the debtor when it was seized, has two chances of success. 
 But when the creditor has obtained such a judgment, he has but one. In other 
 words, the conclusiveness of the judgment, in effect, narrows the litigation 
 down to a single issue. It has been said, that, although the creditor may be 
 able to show, when sued for the property attached, that a debt was justly due 
 him, for which the attachment was issued, and yet be defeated in his action for 
 the recovery of the alleged del)t. It may also be said, that he might be beaten 
 in the first action, by failing to prove his alleged debt, and succeed in establish- 
 ing it in the second. But this reasoning is no answer to the fact that tlie Code 
 authorizes an attiichment whenever the debtor has disposed of any of his prop- 
 erty, with the intent to defraud his creditors. And it is right on principle, if 
 not settled by authority, that creditors should be permitted to attach the prop- 
 erty of their debtors, before conclusively establishing their debts by judgment, 
 ?nd thus prevent the consummation of fraudulent transactions which would de- 
 prive them of any successful remedy. And if, by the application of this rule, 
 fraudulent purchasers should occasionally be beaten by persons who subse- 
 quently fail to establish their alleged debts in their actions against their debtors, 
 the only result would be that some concoctors of frauds would be punished by 
 the wrong persons. That is all. A like result would follow where the creditor 
 recovers a judgment against his debtor, and takes property on execution, which 
 the latter has fraudulently disposed of, if such judgment should subsequently be 
 reversed, and the creditor finally beaten by his alleged debtor after having 
 beaten the fraudulent purchaser of the property in the action brought by such 
 purchaser for the property. But this has never been deemed a sufficient reason 
 for preventing creditors from seizing the property of their debtors in the hands 
 of fraudulent purchasers, until after the existence of their debts has been con- 
 clusively and finally established. The fact that the judgments against A. and 
 B. were recovered after the issues in this action were joined, was no reason for 
 their rejection. Their recovery was not a matter that the defendant was obliged 
 to set up in his answer. They were but evidence, though conclusive, of the 
 existence of the debts for which the attachments were issued — which evidence 
 the defendant did not have, at the time he interposed his answer, to support it. 
 If they had not been i-ecovered, all the difference there would have been is, the 
 defendant would have been obliged to prove the existence of the debts against 
 A. and B. by other and different evidence, and the plaintiff could have given 
 counter evidence on that question " (s. c. 31 N. Y. 140). 
 
 It has been held, in New York, that whenever one purchases property, with 
 intent to defraud the creditors of the vendor, he takes it su!)ject to the statute 
 authorizing the property of his vendor to be seized upon an attachment issued.
 
 § 561. POSSESSION OF GOODS OBTAINED BY FRAUD. 573 
 
 tion ; and if lie does it witli that purpose, it is iniquitous 
 and fraudulent, notwithstanding he may give a full price. 
 The question of fraud depends upon the motive. The pur- 
 chase must be bona fide^ as well as upon good considera- 
 tion. This was the rule, as declared by Lord Mansfield 
 upon repeated occasions.* 
 
 in an action against his vendor ; and if the property purchased be taken upon 
 such attachment, he cannot, in an action against the sheriff, dispute the facts 
 proved by the aifidavits upon wliich the attachment was issued, but such facts 
 are as conclusive agrainst him in the action brought by him. as they would be in 
 an action brought by the defendant {\\\?, vendor) against the sheriff. Such facts 
 are as conclusive, in'the action against the sheriff, to establish the relations be- 
 tween the plaiutiff and defendant in the action in which the attachment is 
 issued, as a judgment is in establishing the relation of creditor and debtor be- 
 tween the parties to the record. One who purchases property, with intent to 
 defraud the creditors of his vendor, cannot complain that it is taken on attach- 
 ment under a special statute requiring certain facts to be proved, and held until 
 his vendor, if he sees tit, makes defense against the claim and defeats the action. 
 The vendee has no right to appear in such action and make defense, nor can he 
 compel his vendor to do so; and, in the absence of collusion or fraud, he will, 
 as to the question of creditor and debtor, l)e bound by their acts, and the judg- 
 ment rendered between them. If he is an honest purchaser, then he will recover, 
 whatever may have been the relations between his vendor and the party suing 
 him, and the' question oilowi fides in the purchase may be tried in his action 
 against the sheriff (Hall v. Stryker, 27 N. Y. R. 596, per Marvin, J.) (In the 
 foregoing case, Balcom, Seldeu and Rosekrans, JJ., were of the opinion, that 
 whether or not the plaintiff in the attachment was a creditor, was an open ques- 
 tion until he had obtained judgment: s. c. 39 Barb. 105; s. p. Bentley v. Good- 
 win, 15 Al)b. Pr. R. 82). 
 
 In Falconer v. Freeman, 4 Sandf. Ch. R. 565, it was held, that a creditor 
 who takes out a warrant of attachment, under the act of New York relative to 
 absent and concealed debtors, thereby obtains a lien upon the property of the 
 debtor proceeded against; and if the sheriff be prevented from levying the war- 
 rant on the del)tor's property, by means of fraudulent claims or transfers, set up 
 in respect of the same, the Court of Chancery would aid the creditor in en- 
 forcing the lien by injunction and otherwise, on the same principle that the 
 court aids an execution creditor similarly obstructed. 
 
 * Boyd v. Brown, 17 Pick. 453, was an action of trespass against a deputy 
 sheriff, for taking and carrying away the plaintiff's vessel. The defendant jus- 
 tified, under a writ of attachment, against one Averill. It appeared that the 
 plaintiff had previously sold three-fourths of the vessel to Averill, and al'terv/ards 
 bouglit it back. It was proved that, before this purchase, Averill, being in em- 
 barrassed circumstances, had given a bill of sale of his share in the vessel to 
 one Caldv/ell, without consideration, for the purpose of preventing its being at- 
 tached by his creditors; and when the plaintiff' agreed to purchase, he took a 
 \n\\ of sale from Caldwell, and not directly from Averill. It was held that, after 
 the conveyance from Caldwell to the plaintiff, it was too late for the creditors of 
 Averill toavcid the conveyance from him to Caldwell; that the payment of a 
 full consideration to Averill confirmed the plaintiff's title, and purged the fraud 
 in the original conveyance; that the plaiutiff, therefore, stood on as good a foot- 
 ing as he would have stood on if he had purchased of CJaldwell lona Jide and 
 without knowledge of the fraud. In the foregoing cuse, it was proved that the 
 plaintiff, in payment for the schooner, agreed to indorse a certain sum on his 
 note against Averill, but it was not then done. It was held that if the indorse- 
 ment was not made until after the defendant's attachment, the delay would not
 
 574 WHO MAY MAIISTAIN THE ACTION. § 562. 
 
 § 562. The continued possession of goods by a vendor or 
 debtor, wlio is in embarrassed circumstances, yields a pre- 
 sumption that the process or sale is rather colorable than 
 real. For, in general, no reason can be given why possession 
 should not be taken, except that he should be indulged with 
 the disposition or use of the property to the injury of others. 
 And proof of the payment of a full consideration, or of the 
 justice of the debt for which property is taken, accompanied 
 with the highest evidence of the honesty of the transaction, 
 will not, in general, be sufficient to repel the legal effect of 
 neglecting an actual removal of the property,"^ The means 
 of proving a bona fide debt, or the payment of an adequate 
 consideration, are so far within the power of the parties, 
 where no debt or consideration actually exists ; the difficulty 
 of repelling that testimony by the creditor is so insurmount- 
 
 nec'essarily vitiate the sale, but that it was a circumstance for the jury to con- 
 sider in connection with the other evidence, in determining whetlier or not the 
 sale was fraudulent. 
 
 * The rule with regard to the necessity of a change of possession, in order to 
 exempt property sold or assigned from attachment, prevailed generally in the 
 United States for many years. But, after the alteration of the rule in England, 
 it was gradually modified in this country, until it is now customary, in many and 
 probably most of the States, to regard the want of change of possession before 
 the attachment as only presumptive evidence of fraud (see Rice v. Courtis, 32 Vt. 
 460). 
 
 In Vermont, the rule requiring a change of possession to protect property 
 from subsequent attachment, is peremptory and universal in its application to all 
 property in the possession of the debtor at the time of the attachment or transfer. 
 But a distinction has been made between property in the hands of the debtor, 
 and property in the hands of a third person at the time of the attachment. 
 Where the chattels sold or attached are in the hands of a third person, no visil)le 
 change of possession is required, provided the vendee or creditor gives notice to 
 such third person of his purchase or attachment. This decision was first made 
 inBarnev v. Brown (3 Vt. 374j, and has been repcatedlv reaffirmed (3 Vt. 555; 5 
 Vt. 231;' 4Vt. 464; 8Vt. 344; 16 Vt. 580; 13 Vt. 418" and 558). In Pierce v. 
 Chipman (8 Vt. 334), the ground of distinction was clearly stated by Collamer, 
 J. Possession of either real or personal property by a third person is notice to 
 the world that the title of the former possessor has been transferred ; and pur- 
 chasers or creditors dealing with the property are put upon inquiry, and are 
 afiected with knowledge of all the facts which, by reasonable investigation, they 
 could ascertain. Hence, when the property is in the possession of a third person, 
 there is an obligation upon a subsequent attaching creditor to inquire as to the 
 ownership; and he is not allowed to rest content with mere observation (Aldis, 
 J., in Flanagan v. Wood, 33 Vt. 332). 
 
 A sale of stock raised and kept on a farm, by a tenant, is void against his 
 creditors, if it is still kept by him on the farm, notwithstanding the owner of 
 the farm (who is not in the actual possession) agrees to keep the property for the 
 vendee (Rockwood v. Collamer, 14 Vt. 141).
 
 § 562. POSSESSION OF GOODS OBTAINED BY FKAUD. 575 
 
 able, and the temptation, on the part of the owner of the 
 property and his friends, to protect liim from the pains of 
 penury, is of such controlling influence, that, as a matter of 
 policy, the law has removed the temptation to fraud, by mak- 
 ing void, as against creditors, sales of personal property and 
 seizures by legal process, unless accompanied by an actual 
 removal of the property. If, when sold, or taken by legal 
 process, it is actually removed from the possession of the 
 vendor or debtor, its use or enjoyment by him is made im- 
 possible ; and attempts to make feigned sales or seizures for 
 that purpose are rendered abortive. This rule of municipal 
 law is adopted, with more or less severity, in most places 
 where the common law prevails, except in certain cases where 
 its application would be impossible or injurious. In the 
 familiar instance of the sale of a ship at sea, a delivery can- 
 not be made at the time of sale ; but is sufiicient if made as 
 soon as may be after the return of the vessel. And when 
 property attached cannot be removed without great injury, 
 as hides in a vat, or paper in a mill, at such a period in the 
 process of manufacture that a removal would cause material 
 damage or destruction, it is dispensed with,^ ■^"" 
 
 ' Mills V. Camp, 14 Conn. 219, and cases cited; ante, § 447. 
 
 * Where a man buys a farm with personal property upon it, and takes his 
 deed, puts it on record and enters upon the premises, though his family does not 
 reside thereon, and assumes an exclusive control of the property, the vendor and 
 his family not living on the farm, this is a sufficient change in the possession of 
 the personal property to constitute a valid sale, although the vendor assisted the 
 vendee to thresh some grain in the barn, a part of the property sold; the infer- 
 ence being that he assisted the vendee as his hired man or servant (Wilson v. 
 Hooper, 13 Vt. 653). 
 
 A son, about leaving the county, with the intention to remain, sold and de- 
 livered to his mother a piano. After a few weeks, not succeeding abroad as he 
 expected, he returned with his family, his mother residing with him, and the 
 piano was kept at iiis house, and used by his wife with the permission of his 
 mother. The piano having been sold by tlie sheriff, upon an execution against 
 tlie son, it was held, in an action of trespass against the sherifl" therefor, brought 
 by the mother, tliat tlie plaintiff was entitled to recover (Graham v. McCreary, 
 40 Penn. St. R. 515; see Brady v. Ilaines, 6 Harris, 113; Smith's Leading Cases, 
 5th Am. ed. p. 73). 
 
 Beals v. Guernsey (8 Johns. 446) was an action of trespass against the aheriff 
 to recover the value of seventy-three barrels of whisky. The whisky was pur- 
 chased by the plaintitf from one Johnson, on the 18th of July. Johnson was 
 then a prisoner within the li))erties of the prison, having been surrendered by his 
 bail, and notoriously a bankrupt. The whisky, when purchased by the plaintill, 
 was placed in the store of one Taylor; and the defendant sold it at Taylor's store
 
 576 WHO MAY MAIifTAIN THE ACTION. § 563. 
 
 § 563. Where personal property is sold or pledged by 
 the owner to a creditor, who, after keeping it a short time, 
 returns it to the original owner, the title to it, in the absence 
 of explanation, will be deemed to be in the latter, and it will 
 be liable to attachment at the suit of other creditors. Hous- 
 ton V. Howard -^ was an action of trespass for certain wagons. 
 The plaintiff claimed to hold the wagons by virtue of an at- 
 tachment against one Reed. The defendant laid claim to them 
 under a prior purchase or pledge of them from Reed. The 
 wagons were attached by the plaintiff while in Reed's actual 
 possession. The only question was, whether the defendant 
 had permitted the wagons to go back into Reed's possession 
 in suck a manner as to make them liable to attachment by 
 
 in November, under an execution issued against Johnson, on a judgment rendered 
 against him two years previous. The i)laintiif was present at the sale, notified, 
 the sheriff that the whisky was his property, and forbade his selling it. It ap- 
 peared that the phtintiff and several others became bail for Johnson for the lib- 
 erties of the jail ; that the whisky was indorsed in part payment, on a bond given 
 to the i)ail, for their indemnity; and that the plaintiff's note of hand, w-'ich he 
 gave .Johnson for the whisky, was deposited with one of the bail for his security. 
 It was proved that the plaintiff called at the store of Taylor to receive the whisky, 
 and that it was not delivered on account of Taylor's sickness. A principal point 
 in the CHse was whether, under the circumstances, the sale of the whisky to the 
 plaintiff was fraudulent. The fact of the non-delivery of the whisky seems to 
 have been sufl5ciently accounted for; and there was nothing to show that the 
 plaintiff knew of the judgment, or that he purchased the whisky with intent to 
 defeat the execution. A verdict having been found for the plaintiff at the Cir- 
 cuit, the Supreme Court refused a new trial. 
 
 One may have the exclusive possession of personal property which is njion 
 land occupied by him antl another in common; and whether or not he has such 
 exclusive possession, must ordinarily be a question of fact for the jury. In Pot- 
 ter V. Mather (24 Conn. 551), which was an action for taking a wagon, the 
 plaintiff claimed title to the wagon under a purchase from his son; and the de- 
 fendants claimed it under an attachment against the son, made subsequent to the 
 purchase. The plaintiff and his son occupied in severalty adjoining tenements, 
 to which there was a yard, occupied by tiiem in common, so far as they had occa- 
 sion to use it. The wagon, at the time of the purchase, and also at the time it 
 was attached, was standing in this yard, though the plaintiff claimed to have 
 taken immediate possessi(m of it after the sale, and to have used it, and to have 
 remained in the exclusive possession up to the time of the attachment. The de- 
 fendants insisted, as matter of law, that there was no change of possession after 
 the sale upon the facts admitted and claimed by the plaintiff, and requested the 
 court to charge the jury that if, at the time of the attachment, the wagon was 
 upon property in the joint possession of the plaintiff and his son, and in tlie same 
 place where it was when the sale was made, and during the intermediate time 
 had been left there, except when in actual use by the plaintiff, there was no 
 change of possession, and the sale was, in point of law, fraudulent and void as 
 against the defendants, who were attaching cf^ditors. The court, however, sub- 
 mitted to the jury, as a question of fact, upon all the evidence, whether or not 
 there had been a change of possession. 
 
 ' 39 Vt. 54.
 
 § 5G4. POSSESSION OP GOODS OBTAINED BY FRAUD. 577 
 
 Reed's creditors. The wagons were taken from Reed's pos- 
 session into the defendant's possession in March. The de- 
 fendant allowed Reed to assume possession in the following 
 June. About a week after this resumj^tion, the plaintiff, 
 finding the wagons in Reed's hands, attached them as Reed's 
 property. It appeared that Reed delivered to the defendant 
 in March, not only the wagons, but all his accounts, assets 
 and business, and that the defendant took control of the 
 whole, including Reed's store and trade. The object of this 
 was to secure to the defendant certain debts, and to enable 
 him to realize payment out of the avails of the assets. Reed 
 still owned the property, subject to these liabilities. It was 
 held that, when the defendant, in June, after having con- 
 verted and applied upon the debts the most of the property, 
 allowed the remainder, including the wagons, to return to 
 the control and possession of Reed, the natural inference was, 
 that the defendant was paid, his lien extinguished, and that 
 the articles surrendered were Reed's absolutely ; that this 
 would have been the reasonable understanding, not only of 
 strangers, but even of parties cognizant of the details of the 
 original arrangement between Reed and the defendant; and 
 that the plaintiff might attach the property as Reed's, and 
 maintain trespass against the defendant for taking it after 
 the attachment. 
 
 § 564. Where goods are sold, which are in the custody 
 of a third person, the buyer must give the person who has 
 the care of the property notice of the sale, and such person 
 must agree to keep the goods for the buyer, or they may be 
 attached by the creditors of the seller.^ ^ A person having 
 bought several sheep which were in the possession and keep- 
 ing of B., requested B., to whom he gave notice of the pur- 
 
 ' Whitney v. Lynde, 16 Vt. 579. 
 
 * Where property, at the time of the sale, is in the actual custody of some 
 bailee or depositary for the vendor, all that is ever required in order to perfect 
 the sale, as against creditors, is that the depositary shall be notified of the trans- 
 fer, and consent to keep the property for the vendee. Cases might perhaps oc- 
 cur where less would suffice (Potter v. Washburn, 13 Vt. 558, per Kedfield, J.). 
 
 Vol,. I.— 37
 
 578 WHO MAY MAIKTAIX THE ACTIOX. § 5G4, 
 
 chase, to act for him in selecting the sheep, and to take a 
 delivery of and kee}) them for him, to which B. assented ; 
 and shortly afterward a selection was made under the pur- 
 chase, and the sheep delivered by the vendor to B., who 
 marked them with the initials of the vendee's name, and 
 kept them for him in the same situation as before, until 
 they were attached by a creditor of the vendor. It w^as held 
 that such sale and delivery of possession were sufficient, and 
 that the attaching creditor w^as liable to the vendee in an 
 action of trespass.-' In an action of trespass for taking and 
 carrying away a sleigh, it appeared that the sleigh was in 
 the shop of one Ayres, for the puq^ose of being painted, and 
 that Willard, the owner of it, went to the shop with the 
 pJaintiif, and there sold him the sleigh, but no money was 
 paid, and the sleigh w\as not then actually delivered to the 
 •plaintiif, though the painter, wdio was present, was directed 
 to deliver the sleigh to the plaintiff, when finished, and 
 agreed to do so. It w^as held that the action, Avhich was 
 brouo^ht ao;ainst a sheriff for attachino; the sleisrh befoi-e it 
 was finished, upon a writ against the original owner, could 
 be maintained.^ ■^ AVhen, however, the bailee of personal 
 property is fully informed of the sale both by the vendor 
 and vendee, he becomes keeper for the true owner by opera- 
 
 ' Barney \. Brown, 2 Vt. 374. - Willard v. Lull, 17 Vt. 413. 
 
 * In Willard v. Lull, svjjrn^ the court said: " Tlie only question in this case 
 is, whether the sleigh became the property of the present plaintitT, as there is no 
 question made as to any actual fraud between the plaintiff and Willard. We 
 think that the contract l^etween the plaintiif and Willard was complete and per- 
 fected at the shop of Ayres; that the property then passed to the plaintiff, and 
 that Willard was entitled to the price as soon as the painting was finished. All 
 that was to be done thereafter was to be done by Ayres, and nothing by Willard. 
 In relation to possession, the direction to Ayres and his agreement constituted 
 him the agent for the plaintiff, and his possession was the plaintiff's possession; 
 and according to the principie established in relation to the sale of property in 
 possession of a third person, who is notified and agrees to keep the same for 
 the vendee, this sleigh was not liable to be attaclied for the debts of Willard. 
 W'hen the defendant attached the sleigh, he still left it in the custody of Ayres, 
 and his directions to Ayres could not, by a quasi attornment, change the character 
 in which he held the sleigh, as bailee of the plaintiff, to a bailee of the defend- 
 ant. The plaintiff actually had the custody and possession of the sleigh when 
 it was forcibly taken from him by the defendant. It appears to us, therefore, 
 that the plaintiff had a perfect title to the property in dispute, by sale, by de- 
 livery, and by actual possession."
 
 § 505. POSSESSION OF GOODS OBTAINED BY FRAUD. 579 
 
 tion of law, aud his consent is immaterial ; and if the vendor 
 has no further use or beneficial interest in the property, and 
 nothing transpires inconsistent with the sale, the property 
 will be protected from the creditors of the vendor.^ 
 
 § 565. After a sale of personal chattels has become per- 
 fected by such a visible, notorious, and continued change of pos- 
 session, that creditors of the vendor may be presumed to have 
 notice of it, the vendee may lend, or let, or employ the vendor to 
 sell or perform any other service about the thing.^ In case 
 of the assignment of a permit to cut timber, and the cutting 
 of the timber under it, there need not be a delivery to enable 
 the assignee to maintain an action against an officer who seizes 
 it under an attachment against the assignor, and the faction 
 may be maintained notwithstanding the assignor acted as 
 the assignee's agent in manufacturing the timber, after it was 
 severed from the soil, into boards.^ * 
 
 • Pierce v. Chipman, 8 Vt. 334. = Dewey v. Tlirall, 13 Vt. 281. 
 ' Fiske V. Small, 25 Maine, 453. 
 
 * The above case was an action of trespass against a sheriff for taking the 
 plaintiffs' lumber under an attachment against one Hackett. The plaintiffs 
 proved their right to the property under two permits to cut the timber, given b;/ 
 the owners of the land to Hackett, aud by him assigned to the plaintiffs, It ap- 
 peared that U)gs were cut under tlie permits, and that Hackett sav,-ed them into 
 boards on shares; and that while he was sawing them he spoke of them and 
 treated them as his own, and did not then reveal the fact that he acted as the 
 agent of the plaintiffs. A verdict having been found for the plaintiffs, the Su- 
 preme Court, in overruling exceptions to it, said: ''There was no delivery of 
 the logs to the plaintitls after they were cut, and it is therefore contended by the 
 defendant's counsel, tliat their right thereto was so imperfect as not to rdlow them 
 to contest that acquired by virtue of an attachment of a creditor upon a precept 
 against the assignors. The owners of the land make no complaint, and, indeed, 
 it is not perceived that they could do so, as it does not appear that the cutting 
 was not in the mode, aud by the persons with whom they contracted. The in- 
 dividuals permitted had parted with all their rights l^efore, and conld not, 
 after tlie cutting, acquire such an interest in the lumber as to make it attachable 
 for their debts. It was com])etent for the pltiintitfs to employ either or all of 
 these as their agents to hold possession of the logs for them, after they v/ere 
 severed froui the soil. The assignors were not rendered incapable of performing 
 such a service by having been parties to the original contract. The case shows 
 that the lumber was in possession of Hackett; and the jury have found, under 
 proper instructions, that Hackett iiad this possession and control of the pro])- 
 erty as the ])laintifts' agent, and his possession nuist be regarded as theirs. Sev- 
 eral cases have been cited to sliow that property sold and not delivered does not 
 confer a title on tlie vendee, as against the attacliing creditor of the vendor; 
 also cases where the contract is for a chattel not in existence, which -will not 
 vest the property in the one contracting to have it made for liim, without a de- 
 livery after its nuinufacture. This case js different from those referred to. The
 
 580 WHO 31 AT MAINTAIN THE ACTION. § 566. 
 
 § 56G. But when tlie purpose for whicli the possession of 
 property is delivered to another is inconsistent with the 
 continued ownership of him who parts with the possession, 
 the transaction will be presumed fraudulent as against pur- 
 chasers and creditors, and the title to have vested absolutely 
 in the one to whom the property is delivered. Where, 
 therefore, personal property was assigned for the benefit of 
 creditors, and the assignees, after taking it into their custody, 
 advertised it for sale, and, after keeping it fourteen days, sold 
 it at public auction to a person who returned it to the original 
 ow^ner, it was held liable for the latter's debts.^ So, where, 
 in an action for the wrongful seizure and sale of certain 
 liquors on an execution against H., it appeared that the liq- 
 uors were delivered by the plaintiffs who were liquor mer- 
 chants to n., a tavern keeper, to be retailed by him at his 
 bar, and that the title was to remain in the plaintiffs until 
 sold, it was held that the liquors were liable to be taken on 
 an execution against H,, and that the plaintiffs could not re- 
 
 identity of the timber -was not changed, in the conversion from trees to logs. 
 If the plaintiffs had a claim to the former, they had also to the latter." 
 
 ' McGlynn v. Billings, 16 Yt. 329; see also Hall v. Parsons, 15 lb. 358: 
 Batchelder v. Carter. 2 lb. 168; Emerson v. Hyde, 8 Px 352. 
 
 - Bonesteel r. Flack, 41 Barb. 435 ; and see Ludden t, Hazen, 31 lb. 650. 
 
 * Where a minor has purchased his time of his father, he is entitled to his 
 own earnings as against the creditors of his father. Chase v. Elkins, 3 Vt. 290, 
 was an action of trespass against a deputy sheriff for attaching a pair of cattle 
 belonging to the plaintiff. The plaintiff bought the cattle of his father, with 
 the money he earned during the last year of his minority, he having iirst paid 
 his father the whole sum due hira for his (the son's) time; and the son lent 
 them to his father who was using them when they were attached. No reason 
 was shown why the cattle did not belong to the plaintiff, provided a poor man 
 in debt covdd sell or give his minor son his own earnings, or give him the right 
 to work for his own l)enefit. There was no allegation of fraud, unless such a 
 contract betv.een father and son was necessarily fraudulent as against creditors. 
 The court said: " K the father's right to the son's labor can b-e called property, 
 he has the same right to dispose of it, in good faith, as he has to dispose of other 
 property. He should have this right, that he may consult the genius, capacity, 
 and inclination of the son, and direct the whole for the best interest of himself 
 and son. If he deems it best for his son to serve as an apprentice to some trade, 
 or enjoy the patronage of some gentleman of the bar, and become a lawyer, or 
 the patronage of some clergyman, and become a preacher, no creditor has aright 
 to interfere with this, and claim the son to labor, that he may attach his earn- 
 ings. Nor, if he does labor, hare they any right to his earaings until the same 
 are vested in some attachable property. Possibly the father might re-assert his 
 ri^bt over the son, and control his earnings during his minority. The son may
 
 § 567. POSSESSION OF GOODS OBTAINED BY FRAUD. 581 
 
 § 567. Whether a conveyance or an attachment is fraudu- 
 lent or not is necessarily a question oi fact to be submitted to 
 a jury ; otherwise, an attaching creditor could not, under any 
 circumstances, leave the property purchased or attached in 
 the possession of the original owner for a moment after a 
 reasonable time had elapsed for its removal, and no evidence 
 would be admissible to prove the transaction hona fide. * 
 Koster v. Merritt^ was an action of trespass for taking a 
 sloop. Hubbard and Dayton, of Greenwich, Connecticut, 
 were the owners of the sloop, which they had run between 
 Greenwich and New York, and they sold it in New York to 
 the plaintiff, a resident of New York, for its full value, part 
 of the consideration being a debt which they owed the 
 plaintiff, and the residue the assumption by the plaintiff of 
 certain debts due from Hubbard and Dayton. The plaintiff 
 took formal possession of the sloop, but immediately engaged 
 Hubbard, who had been acting as her captain, to remain in 
 the same situation, notified the crew of the purchase, and 
 employed them. There were other facts in the case from 
 which an inference could be drawn that the possession was 
 retained by the vendors. Soon after the sale the vessel pro- 
 
 so conduct that it would be his duty so to do. And the cattle being in the pos- 
 session of the father and used by him, as stated in this case, might be proper 
 evidence for the jury to weigh, if such a question were urged. But the case puts 
 this at rest. For it' states that the plaintiif bought the steers with his earnings, 
 and lent them to his fatlier." 
 
 In Hunter V. Westbrook, 2 C. & P. 578, the plaintiff had given to his son, 
 when sixteen years of age, a watch and some other property. The watch 
 got into the possession of the defendant, who detained it agaiijst the son and the 
 lather. The plaintiff brought trover for the watch. The court decided that he 
 could not maintain tlie action, because his title and right of possession had been 
 divested by a gift to the son. 
 
 A.'s goods Avere sold by the sheriff under execution, bought by B. and sold by 
 him to A.'s wife. The property having passed into the possession of the ven- 
 dee, and the vendor having received a considerable portion of the purchase 
 money, it was held that he could not maintain trespass against the sheriff for 
 again selling tlie goods as the property of A. (Waldrou v. Haupt, 52 Penn. St. 
 R. 408). 
 
 ' 32 Conn. 24G. 
 
 * It is believed that none of the cases go this length except Edwards v. Har- 
 ben, 2 Term. R. 5«7, and Hamilton v. Russell, 1 Cranch. 97. In all other 
 cases the question wliether the sale was fraudulent or not has been submitted to 
 the jury. See Burrows v. Stoddard, 3 Conn. 431. The New York Revised 
 Statutes (5th ed. vol. 3, p. 225) provide that the question of fraudulent intent 
 shall be deemed a qucfetiou of fact and not of law.
 
 582 WHO 3IAY MAINTAIN THE ACTION. § 5G7- 
 
 ceeded to Greenwich, where it was attached by the defend- 
 ant, who was a creditor of Hubbard and Dayton^ as their 
 property. Thereupon the plaintiff brought this action. The 
 defendant contended that possession by the vendors made the 
 sale in law fraudulent and void as to creditors. But the 
 judge who presided at the trial received proof of the facts 
 only as evidence of fraud, and a verdict having been found 
 for the plaintiff, the Supreme Court refused to disturb it. "^^ 
 The declarations and acts of a debtor respecting property 
 alleged by an attaching creditor thereof, or one representing 
 him, to have been fraudulently conveyed to the party claiming 
 it, made or done before the supposed sale, are admissible in 
 evidence if such declarations and acts have a tendency to 
 show that the sale was made with a fraudulent desiofii. 
 Such evidence becomes no less admissible when the declara- 
 tions and acts are in the absence of tlie party to whom the 
 sale is made. The one who alleges the fraudulent sale must 
 establish two propositions: One that the vendor conve3'ed 
 the property for the purpose of defrauding or delaying his 
 creditors; and the other, that the vendee participated in the 
 fraud. The former proposition being distinct from the other, 
 may be proved by statements and conduct of the vendor 
 unknown to the vendee. The presence of the vendor in court, 
 when such evidence is offered, is no objection to the testi- 
 
 * In Koster v. Merritt, supra, the court, per Dntton, J., said : " This sale was 
 made in New York, and we think the contract must be governed in its construc- 
 tion and effect by 'the law of that State. It is now well settled by the decisions 
 of the courts of New York that such circumstances of the retention of the posses- 
 sion by the vendor as existed in this case, and such other circumstances as tended 
 to show a secret trust, are only evidence of fraud, and do not authorize the court 
 to pronounce the sale fraudulent fcr se. It has been strongly urged that the ler 
 loci contractus does not apply to such a case as this; that that doctrine is only 
 applicable where the construction or validity of a contract considered by itself is 
 in question; but that the point made here is, whether proof of facts occurring 
 after the contract is complete can be admitted, and what effect is to be given "to 
 such evidence; that this question is one which each court must determine for 
 itself to regulate its own action, and that for this purpose the same rules should 
 in all cases be adopted, without reference to the locality of; the transaction. It 
 must be acknowledged that the presentation of the question has much plausi- 
 bility, but we think it ought not to prevail. The principle which lies at the 
 foundation of the lex loci applies vv'ith full force to such a case as this,"
 
 § 5G8. POSSESSION OF GOODS OBTAINED BY FRAUD. 583 
 
 mony, wliicb is not to be excluded by tlie subsequent call of 
 the vendor as a witness by tlie same party .^ * 
 
 § 568." A sale of goods may be void as to any legal 
 remedy upon it, and valid as to tlie possession of the vendee. 
 Where goods were sold. on Sunday to be delivered afterward, 
 and on a subsequent Sunday the vendor gave the vendee 
 permission to take them away, which he did the Monday 
 following, it was held that the vendee might hold the goods 
 not only against the vendor, but also against the creditors of 
 the vendor.^ f It is generally said of such an illegal contract 
 
 ' White V. Chadbourne, 41 Maine, 149. 
 
 ^ Smith V. Bean, 15 N. Hamp. 577. 
 
 * Pierce v. Hoffman, 24 Vt. 525, was an action of trespass for a wagon which 
 the defendant had attached and sold as the property of one Butterfield, the 
 plaintiff claiming that he had' previously bought the wagon of Butterfield. The 
 defendant introduced evidence tending to prove that the sale of the wag:m by 
 Butterfield to the plaintiff was fraudulent, and it was held that other fraudulent 
 transactions between the parties about the same time of the one in question was 
 admissible. By the court : "In cases of this kind there is a probable connection 
 in a series of sales, nearly at the same time, the result of which is to strip a man 
 of his available property, and enable him to leave the country. It would be im- 
 possible generally to show the object and intention of the parties without allow- 
 ing everything to come into the case which might fairly be supposed to have a 
 connection with the general design to be ultimately accomplished. A fraudu- 
 lent transaction between the same parties, which had no connection with the 
 particular failure, might not be competent evidence. But all which regarded 
 the very failure and absconding (and it would seem the testimony objected to 
 had such connection) should go before the jury. If this were not so, it would be 
 in the power of parties, by subdividing such transactions, to altogether destroy 
 the force of the evidence resulting from their general character." 
 
 t This was an action of trespass for taking a pair of oxen. It appeared that the 
 cattle were sold to the plaintiff by one Boies on Sunday; that on a subsequent 
 Sunday Boies agreed that the plaintiff might send and take them away, which 
 the plaintiff did'the next day; and that a few days afterward the defendant at- 
 tached them as the property of Boies in the possession of the plaintiff. The court, 
 in holding that the plaintiff was entitled to recover, said: " The contract of sale 
 by Boies to the ])laintitt" was made on the Sabbath. The plaintiff took posses- 
 sion of the oxen on Monday. If Boies had delivered them on that day, the 
 completion of the sale by the delivery being lawful, it would not have formed a 
 legal objection to the sale that the negotiation respecting it, ending in an agree- 
 ment to make it, took place at a time when secular labor was forbidden and un- 
 lawful. The contract would hav^e been executory until perfected by the delivery, 
 and the perfected contract of sale would have been lawful and binding. But 
 the report shows no delivery of the oxen by Boies on Monday. Tiie plaintiff 
 took possession of tliem on that day, but it was by the direction or permission 
 of' Boies given on the previous day. All that was done by Boies was done on 
 Sunday. If he sold the property then it was on that day. The contract of sale 
 was made that day, and the plaintifi' took possession of his purchase the next 
 day. If Boies were now seeking to recover the purchase money, we must on 
 tiiese facts hold the sale to have been illegal, giving the vendor no right of ac- 
 tion. ***** The plaintifi' received the oxen with the assent of Boies
 
 584 WHO MAY MAINTAIN THE ACTION. § 568. 
 
 tLat it is void. If this were so, no property would pass by 
 it ; the vendor might reclaim the property at will, and being 
 his pi'operty, it would be subject to attachment and levy by 
 his creditors in the same manner as if the attempt to sell had 
 never been made. But this is not what is intended by such 
 phraseology. The transaction being illegal, the law leaves 
 the parties to suffer the consequences of their illegal acts. 
 The contract is void so far as it is attempted to be made the 
 foundation of legal proceedings. The law will not assist the 
 vendor to recover the price. The vendee has the possession 
 of his own property with the assent of the vendor, and the 
 law leaves the parties where it finds them. 
 
 upon a contract of sale, which in effect passed the property as between them, 
 whether the plaintiff paid or not, and if he did not, whether Boies can recover 
 the price of him or not, is immaterial. The plaintiff is entitled to hold the oxen 
 against Boies, and may therefore hold them against the creditors of Boies unless 
 the sale was fraudulent as to creditors. The fact that it was illegal, because 
 against the policy and prohibitions of the law, does not show that it was fraudu- 
 lent as against creditors, and there is nothing in the case to show actual fraud " 
 (citing Drury v. Defontaine, 1 Taunt. 131 ; Allen v. Deming. 14 N. Hamp. 
 133, 137, 138, and cases there cited; Lewis v. Welch, 14 N. Hamp. 294, 298; 
 Fennell v. Ridler, 5 Barn. & Cres. 406; Clark v. Gibson, 12 N. Hamp. 386.)
 
 CHAPTER V. 
 
 REMEDY FOR THE WROI^GFUL TAKING OR INJURY OF PERSONAL 
 
 PROPERTY. 
 
 1. Ground of action. 
 
 2. Declaration. 
 
 3. Grounds of defense. 
 
 4. Plea. 
 
 5. Replication. 
 
 6. Evidence of possession. 
 
 7. Proof of taking. 
 
 8. Evidence as to value. 
 
 9. Proof of time. 
 
 10. Attendant circumstances. 
 
 11. Intention. 
 
 12. Presumptions. 
 
 13. Evidence of justification. 
 
 14. Evidence in mitigation of damages. 
 
 15. Objections to evidence, when to be made. 
 
 16. Damages in general. 
 
 17. Exemplary damages. 
 
 1. Ground of action. 
 
 § 569. The owner of personal property whicli lias been 
 unlawfully seized and sold, may either disaffirm the act and 
 sue for a trespass, or for a conversion of the property, or he 
 may affirm the act and claim the benefit of the transaction.* 
 But if he has once affirmed the act, he cannot afterward treat 
 it as a wrong, nor can he affirm the act in part and avoid it 
 in part,^ f Where machinery of a mortgagor was levied 
 
 ' Brewer v. Sparrow, 7 B. & C. 310; Lythgoe v. Vernon, 5 H. & N. 180. 
 
 * In cases where either trespass or trover might be maintained, the injured 
 party may, if he choose, waive both the trespass and the conversion, and recover 
 for any damages he mav have sustained, in a special action on the cas^e (Brans- 
 comh V. Bri.lges, 1 B."' & C. 145; Phillips v. Bacon, 9 East, 298; Smith v. 
 Goodwin, 2 Nev. & Man. 114; Gilson v. Fisk, 8 N. Hamp. 404; Christopher 
 v. Covingtou, 2 B. Mon. 357. 
 
 Tiie question of waiver is one of fact, and not of law, depending upon the 
 acts and intentions of the parties, and all the circumstances of each particular 
 case upon which it is the province of the jury to pass (Coffin v. Field, 7 Cush. 
 355). 
 
 tif the plaintiff, in an action against an infant for injuring a hired horso, de- 
 clares in case, he thereby affirms the contract of hiring, and the plea of infancy
 
 580 REMEDY FOR WKONGFUL TAKING OF PROPERTY. § 570. 
 
 upon in the mill of the mortgagee, and the mortgagee was 
 in the mill part of the time during the sale, and waived all 
 objections thereto, and certain nuts, wa-enches, and screws be- 
 longing to the mortgagee w^re taken or lost by the bidders 
 without the knowledge of the officer or his assistants, it was 
 held, that the latter w'ere not liable to the mortgagee there- 
 for.^ Simply receiving the benefit of property in its use by 
 one wdio wrongfully took it, does not constitute a basis for 
 an action of assumpsit by the ow^ner. To enable him to 
 bring such an action, the goods must have been converted 
 into money or money's worth,^ But w^hile goods which have 
 been wrongfully taken are in the custody of the defendant, 
 the action may, by contract, be converted into an action for 
 goods sold and delivered, the subsequent assent to treat the 
 matter as restino^ in contract havino; relation back to the 
 time the goods were taken, and in legal effect converting it 
 into a sale of the goods at the request of the defendant.^ 
 When, however, the proof fails as to the wrongful taking, 
 the plaintiff cannot waive the tort at the close of the case 
 and recover as upon a contract.^ 
 
 § 570. The plaintiff may make the wrongful entry of the 
 defendant the gist of his action, or w^aive the wrongful entry 
 and rely upon the taking and carrying away; and, in either 
 case, the judgment may be pleaded and shown in evidence 
 in bar of another action. In Wadleigh v. Janvrin,^ which 
 was an action of trespass by the vendee of a farm against the 
 vendor for carrying away from the premises, after the sale, a 
 
 ■will be a good defense, for the plaintiff cannot afHrm the contract and at the 
 same time, by alleging a tortious breach of it, deprive the defendant of his plea 
 of infancy (Campbell v. Stakes, 2 "Wend. 137). 
 
 ' FuUam v. Stearns, 30 Vt, 443. 
 
 • Jones Y. Hoar, 5 Pick. 285, and post ; Balch v. Patten, 45 Maine, 41 ; Glass 
 Co. V. Wolcott, 2 Allen, 227; Smith v. Smith, 43 N. Hanip. 536; Gilmore v. 
 Wilbur, 12 Pick. 124; Allen v. Ford, 19 lb. 217; Mann v. Locke, 11 N. Hamp. 
 248; White v. Brooks, 43 N. Hamp. 402; 1 Chit. PI. 39, 40. But see Hill v. 
 Davis, 3 N. Hamp. 384 ; Cummins v. Noyes, 1 Mass. 435. 
 
 ' Stearns v. Dillingham, 22 Vt. 624. * Ransom v. Wctmore, 39 Barb. 104. 
 
 'Wadleigh v. Jauvrin, 41 N. Hamp. 503; Woods v. Banks. 14 Ih. 101; 
 Lyford V. Putnam, 35 lb. 563; Nelson v. Burt. 15 Mass. 204; WoodrulT v. 
 Halsev, 8 Pick. 333; Walker v. Sherman, 20 Wend. G36 ; Goodrich v. Jones, 2 
 Hill, 142.
 
 § 571. GROUND OF ACTION. 587 
 
 cider mill and other articles, it ^vas contended by the defend- 
 ant that, even if the property in question passed by the con- 
 veyance as part of the real estate or affixed thereto, the 
 present action could not be maintained, but only trespass 
 quare dausum. It was held, however, that when the de- 
 jfendant removed the cider mill and other articles from the 
 farm they were, by his wrongful act, converted from chattels 
 real, or fixtures, into chattels personal ; that the title and 
 ownership still remained in the plaintiff, and that for their 
 subsequent appropriation the defendant was liable either in 
 trespass or trover. 
 
 § 571. If an infant wilfully injures personal property, 
 trespass will lie against him therefor.^ In an action for ex- 
 ploding a fire cracker under the horse of the plaintifl^ while 
 passing through one of the public streets of a city on the 
 Fourth of July, whereby the horse became frightened and 
 fell down and died, it was held, that the infancy of the de- 
 fendant was no protection. There w^as a controversy at the 
 trial in the court below, whether or not the defendant was 
 requested by the plaintiff not to ex]:)lode the cracker. It was 
 held, that this was not important in any view, although if 
 the act was done after the defendant was requested to desist, 
 it would show that the boy was reckless of the conse- 
 quences.^ * 
 
 ' Campbell v. Stakes, 2 Wend. 137; ante, § 40. ^ 
 
 ' Conklin v. Thompson, 29 Barb. 218. 
 
 * The real question at issue in the above case was as to the cause of the death 
 of the horse. The proof showed that the defendant threw the lighted cracker 
 under the horse, whtre it exploded; that the horse appeared much frightened, 
 sheared toward the sidewalk, reeled, and fell, and almost immediately expired. 
 He was proved to have been, up to that time, in good health; was 18 years old, 
 and had traveled twenty-two miles in five hours that morning. Some of the 
 witnesses thought he died from apoplexy caused by over-driving, and some 
 from fright. It being purely a question of fact, and the jury having found a 
 verdict for the plaintiff, the court refused to disturb it. 
 
 It was lield, in North Carolina, that trespass would not lie against a bailee 
 unless the projierty had been destroyed by him (Setzar v. Butler, 5 Ired. 212). 
 Where a servant, in the ordinary performance of his master's duty, but without 
 his knowledge, uses the property of another and injures it, trespass is not the 
 proper remedy against tlie master (Gordon v. Rolt, 7 D. & L. 87). 
 
 In New York, in an action for the wilful and wrongful injury of tlie 
 plaintiff's property, and for wrongfully and wilfully depri\ing him of the use of
 
 588 REMEDY FOR WRONGFUL TAKING OF PROPERTY. § 572. 
 
 2. Declaration. 
 
 § 572. The declaration must specify wliat goods were 
 taken. A general averment that there were taken goods, to 
 wit, one hundred articles of household furniture and one 
 hundred articles of wearing apparel, without describing their 
 nature or quality, will be insufficient.^ * But in an action 
 for taking and carrying away several descriptions of poultry, 
 the plaintiff need not allege how many there were of each 
 description, the collective value of the whole being stated.^ 
 So, likewise, a declaration in trespass, for taking and carrying 
 away mahogany tables, chairs and a bureau, without stating 
 the number of tables and chairs, was held good after ver- 
 dict: as "the jury must have had evidence of the number of 
 the several articles taken; at least they would have found 
 damages only for so many as were proved." ^ The omission 
 to specify the value of the articles carried away, would be a 
 defect of form, which could only be taken advantage of by 
 special demurrer — the defect being cured by pleading in chief, 
 and by the verdict.* f 
 
 certain parts of such property, the defendant may be arrested and imprisoned 
 upon execution (Niver v. Niver, 43 Barb. 411). In Tracy v. LeUmd, 2 Sandf. 
 729, disapproving Starr v. Kent, 2 Code R. 30, which was an action against a 
 female for the wrongful taking of a piano, the plaintiif rested his right to an 
 arrest on the sole ground that a wrongful concealment and withholding of the 
 property is in itself a wilful injury to it. The court, in discharging the defend- 
 ant from arrest, remarked that the two things were in their nature entirely 
 different. The ground taken by Mason, J., in Tracy v. Leland, 2 Sar.df. S. C. 
 729, that the wilful injury to property for which the arrest of a female is allowed 
 by the code, is a physical injury, such as breaking it to pieces, or otherwise dam- 
 aging it intentionally, whereby its value is lessened or destroyed, was disap- 
 proved in Solomon v. Waas, 2 Hilton, 179, per Daly, J. 
 
 ' Holmes v. Hodgson, 8 Moore, 379. 
 
 ° Donaghe v. Rondeboush, 4 Munf. 251. 
 
 ' Richardson v. Eastman, 12 Mass. 505. 
 
 * Bertie v. Pickering, 4 Burr. 2455; Strode v. Hunt, 2 Lev. 230; Usher v. 
 Bushell, 1 Sid. 39; Newconib v. Rumer, 2 Johns. 421 note; Baker v. Baker, 13 
 Mete. 125. 
 
 * An averment of "furniture, &c,," will not include coffee, sugar and apples 
 (Whitmore v. BoAvman, 4 Greene (Iowa), 148). But under a declaration In tres- 
 pass, for taking the plaintiff's goods, chattels and effects, it was held, that he 
 might recover the value of fixtures (Pitt v.-Shew, 4 B. & A. 206). 
 
 Where the taking of personal property is one single and indivisible act, the 
 plaintiff will not be permitted to split up his claim for damages into separate suits 
 for each article seized (Farrington v. Payne, 15 Johns. 432). 
 
 t In Higgius v. Hay ward, 5_Vt. 73, which was an action of trespass for taking
 
 §§ 573, 574. DECLARATION. 589 
 
 § 573. The plaintiif need Dot anticipate in his declaration 
 the defense ; as that on a certain day the defendant, being an 
 officer, and having certain writs against A., B. or C, by vir- 
 tue thereof took the plaintiff's goods ;^ or, that the plaintiff 
 is mari'ied and has a family, and that the property taken is 
 exempt from execution.^ 
 
 § 574. If the declaration shows a good cause of action, it 
 will be sufficient, notwithstanding it contains other allega- 
 tions which are unnecessary or false.* Accordingly, where the 
 
 a chaise and harness, it was insisted that the omission of the words "w^YA force 
 rtrn^^ ar???8, " in the declaration, was fatal. The court, in holding that such an 
 omission did not vitiate, unless met by a special demurrer, said: "There exists 
 in this State neither of the reasons which ever existed in England, for making 
 this averment in a civil action. When first introduced in England, the civil action 
 was also a criminal process; and if the plaintiff recovered damages, a fine was as- 
 sessed to the king. Plence the vi et armis and contra fcicem were apt expressions 
 in reference to one part of the judgment that must be rendered in the action, if 
 the plaintifl' recovered at all. When the statute, 5 Wm. & Mary. c. 12, abolished 
 this fine, it created a substitute by requiring the plaintifl', on signing judgment, 
 to pay a fixed sum, which he recovered back in his judgment. And the xi ct 
 armii seems as necessary to secure this substitute as it did before to warrant the 
 fine. But by the statute, 4 & 5 Ann. c. 16, the omission of vi et nrmis and contni 
 pacem is aided, except on special demurrer (Gould's PL pp. 188, 189). In this 
 State there never has been a fine imposed upon the defendant, nor any duty col- 
 lected of the plaintiff, in an action of trespass, any more than in an action of 
 assumpsit ; and there never has been any reason for inserting those expressions 
 in our writs of trespass, except preserving a reverence for ancient forms; and 
 when the reason for a law ceases, the law itself ceases, in many cases, at least. 
 Moreover, the practice under some very ancient English statutes is so interwoven 
 with the common law, it has come down as a part of the common law, and ha« 
 become a part of the common law in this State. On one or more of these grounds, 
 the insertion of the vi et armis, in civil actions of trespass, has long since lost its 
 seeming importance, unless the omission is met by a special demurrer." 
 
 ' Dane v. Gilmore. 49 Maine, 173; Davis v. Cooper, 6 Miss. 148. 
 
 - Stevens v. Somerindyke, 4 E. D. Smith, 418. 
 
 * A count for taking away goods may be united with a count for trespass to 
 land (Wilson v. Johnson, 1 Iowa, 147). 
 
 The statute of Connecticut, which authorizes the joinder of trespass and 
 trover, does not alter the character of either form of action when joined. In 
 Belden V. Granniss, 27 Conn. 511, the declaration contained two counts. The 
 first was in trover, for the conversion of certain goods belonging to the plaintiff, 
 and the second was in tresj)ass, for the taking and carrying away of the same ar- 
 ticles. By the common law, these counts could not be joined ; and the question 
 was, whether the joinder was proper under the statute which provided that 
 '' one or more counts in trespass on the case, founded in tort, maybe joined with 
 one or more counts in trespass in the same declaration, when all of such counts 
 are for the same cause of action." The goods in question were used l)y the 
 plaintiff in carrying on the Iiusiness of a milliner. The second count set 
 forth, with particularity, the circumstances attending the trespass upon the goods, 
 and then proceeded to describe the consequences resulting to the plaintiff from 
 the wrongful act of the defendants in taking and carrying away the property,
 
 590 REMEDY FOR WRONGFUL TAKING OF PROPERTY. § 574. 
 
 plaintiff admitted m liis pleading, that the trespasser had re- 
 turned the property, with the qualification that the property 
 was returned in a damaged state ; it was held, that as if the 
 same facts had appeared in evidence, without having been set 
 out in the complaint, the return would have gone in mitigation 
 of damao-es ; the circumstance that the plaintiff had unneces- 
 sarily inserted a statement of the mitigating fact in his com- 
 plaint, was of no legal consequence.^ Again, the plaintiff hav- 
 ino- averred that the defendant, without reasonable or probable 
 cause, instituted a suit against the plaintiff in a court which • 
 had no jurisdiction, and attached and kept the plaintiff's prop- 
 erty foi' twenty days, the defendant contended that the dec- 
 laration was for a malicious prosecution, and could not be 
 maintained as an action of trespass. But it was held that 
 the seizure of the property was a trespass for which the 
 plaintiff was entitled to recover as a substantive ground of 
 damages.^ So, likewise, where, in an action of trespass for 
 levying upon* the property of A. under an execution against 
 B., it appears that the plaintiff" set up a claim to other and 
 distinct parcels of the personal property which once belonged 
 to the plaintiff in the execution, such claim, though un- 
 founded and fraudulent, will not deprive the plaintiff of his 
 rip-ht of action, or diminish the amount which he is entitled 
 
 as follows: " That the defendants, by forcibly taking possession of the store of 
 the plaintiff, and by seizing said goods, and by putting men in said store, and 
 entering therein themselves, did completely cause the business of tlie, plaintiff to 
 cease, and did prevent said workmen in the employ of the plaintiff from contin- 
 uing their said work, and did hinder, obstruct and stop the business of the plaint- 
 iff" for a long space of time, to wit, for the space of three days, and did cause 
 the plaintiff great expense in traveling to, and being detained in, the city of 
 Nev/ York, for the purpose of purchasing other goods to supply the place of 
 those taken." The defendant insisted that the second count set forth not only 
 the cause of action described in the first count, but likewise a trespass to the 
 real estate of the plaintiff; and also a cause of action in case, for the injuries 
 resulting to her in the loss of business, and in being subjected to troulile and 
 expense in procuring other goods. The court, however, held that it was clear 
 that the sole ground of complaint made by the plaintiff was the trespass com- 
 mitted upon tlie goods; that the matters set forth, whicli the defendant claimed 
 constituted separate causes of action, were alleged merely to aggravate the dam- 
 ao-es resulting from the trespass; and that consequently there was no misjoinder 
 of counts. 
 
 ' Kerr v. Mount, 28 K Y. R. 659. ^ Whiting v. Johnson, 6 Gray, 246.
 
 §§ 575, 570. DECLARATION. 591 
 
 to recover for the property actually belonging to liim, and 
 which was illegally taken by the defendant.^ 
 
 § 575. There must be an averment of the plaintiff's title 
 to the property.^ la Carlisle v. Weston,^ the declaration did 
 not allege that the plaintiff owned the goods, or that he had 
 the possession or right to their possession. A verdict hav- 
 ing been found for him, on a motion in arrest of judgment, 
 Shaw, C. J., said : " The declaration is fatally defective in not 
 stating the plaintiff's title. The court have no means of 
 knowing, from the minutes of the judge who tried the case, 
 or otherwise, that the plaintiff's property in the goods was 
 proved ; and not being stated in the declaration, it is not to 
 be presumed." And where the declaration only averred an 
 assignment of the property to the plaintiff by the original 
 owner, without setting up an assignment of the claim for 
 damages for the taking, it was held that there couhl be no 
 recovery.'* 
 
 § 576. But if the allegation, though technically deficient, 
 be substantially an averment of property in the plain ti^, 
 the declaration will be sustained. In Stanley v. Gaylord,"'^ 
 which was an action of trespass brought by an administrator, 
 the declaration averred the taking and driving away of a 
 certain cow of the plaintiff's intestate. The objection was 
 that there was not a sufficient allegation of property in the 
 plaintiff; that it was not the case of a title defectively stated 
 and which was cured by the verdict, but one in which no 
 title was set forth. The ground of objection was that there 
 could be no property in a deceased person, and that here the 
 allegation was of the taking and driving of a " cow of the 
 plaintiff's intestate." It was held that the averment, though 
 informal, ^vould be presumed upon a reasonable construction 
 to be of a taking and carrying away in the lifetime of the 
 
 ' Phillips V. Hall, 8 Wend. 610. 
 
 - Ilitc V. Long, G Rand. 457. ' 1 Mete. 2(5. 
 
 ' Sherman v. Elder, 1 Hilton, 178; and see McKee v. Judd, 2 Kernan, 022. 
 
 * 10 Mete. 82.
 
 592 KEMEDY FOR WRONGFUL TAKING OF PROPERTY. § 577. 
 
 intestate, as the property was alleged to be in her and not in 
 tlie plaintiff, wliicli averment was sustained by the evidence. 
 But the court intimated a doubt whether an action of tres- 
 pass, on the facts as stated, could be maintained by the ad- 
 ministrator. If the declaration allege that the goods are 
 the property of the plaintiff, it need not aver that they were 
 in his possession at the time of the taking.^ And where the 
 plaintiff sets up title by purchase under a dormant execu- 
 tion, he need not aver the time or place of purchase, nor 
 directions given to suspend proceedings under the execution, 
 nor that such directions were given to defraud ; neither is it 
 necessary to state the consideration paid.^ * 
 
 § 577. A count in trespass for injury to personal prop- 
 erty cannot be joined to a count for injuring the plaintiff's 
 health.- In Boerum v. Taylor,^ the first count was for injur- 
 ing a certain jug, and a quantity of liquor contained in the 
 same, by putting certain noxious substances therein, by means 
 of which the jug was lessened in value, and the liquor 
 spoiled. The second count was in case, for injuring the 
 health of the plaintiff. After setting forthth at the plaintiff' 
 was possessed of a certain other jug, and a certain other 
 quantity of liquor, the pleader went on to state, in substance, 
 that the defendant then and there, wickedly and maliciously 
 intending to administer the liquor to the plaintiff', and cause 
 him to drink thereof, did put the noxious substances therein 
 described into the said liquor, which rendered the same un- 
 wholesome, and the plaintiff, being ignorant thereof, drank 
 of the same, to the great injury of his health. The burden 
 of complaint in the second count was the injury to the health 
 of the plaintiff, and the mixing of the noxious substances 
 with the liquor was spoken of merely as the means by which 
 
 ' Donaghe v. Roiulebonsh, 4 Munf. 251. 
 
 ' Hickok V. Coates, 3 Wend. 419. ' 19 Conn. 123. 
 
 * In an action of trespass for driving against the plaintiff's cart, it is an im- 
 material allegation who was riding in it (Howard v. Peete, 2 Chit. 315), or to 
 whom the cart belonged at tlie time of the accident (Hopper v. Reeve. 1 Moore, 
 407; 7 Taunt. 69S).
 
 § 578. DECLARATION. 593 
 
 the defendant inflicted the injury. It was hehl that there 
 was clearly a misjoinder of counts. 
 
 § 578. Where the injury is alleged to have been com- 
 mitted on divers days and times within a specified period as 
 well as on a day particularly named, constituting several acts 
 distinct in time, but identical in kind, the plaintiff will be 
 entitled to recover for successive trespasses.* Folger v. 
 Fields * was an action of trespass for taking and driving 
 away sheep. It had been previously admitted that the 
 plaintiff was entitled to recover, and, according to agree- 
 ment, the defendants had been defaulted and an assessor 
 appointed to assess the damages. Upon the report of the 
 assessor now made, the question was as to the amount for 
 which judgment should be entered. It appeared that the 
 defendants were joint trespassers in taking and driving away 
 certain sheep belonging to the plaintiff, on the 15th day of 
 May, and also in taking, driving away, and impounding cer- 
 tain other sheep of his on the 1 6th day of the same month ; 
 and that some, but not all, of the defendants were joint tres- 
 passers in taking and driving away certain other of the 
 plaintiff's sheep on various other days, during the time speci- 
 fied in the declaration. It was stipulated by the parties that 
 to avoid another suit, the plaintiff might ofter to the assessor 
 " evidence of the improper and injurious treatment of the 
 sheep after they were impounded," and that he should assess 
 such damages therefor as he should consider to be proved. 
 The assessor reported what sum the plaintiff ought to re- 
 cover upon the assumption that the defendants were jointly 
 liable for taking away and impounding the whole number 
 of sheep mentioned. The defendants insisted that damages 
 could be assessed against them, under the plaintifi^'s declara- 
 tion, for only one single act of taking ; and that, by force of 
 the stipulation contained in the agreed statement of facts, 
 
 ' 12Cush. 93. 
 
 * A levy, takinjT away, and sale of property, although done on diflorcnt days, 
 constitute a single trespass, and tiie owiier cannot be put to his election as to 
 for which he will bring his action (Browning v, Skillmau, 4 Zabr. 351). 
 ToL. I.— 38
 
 594 REMEDY FOR WRONGFUL TAKING OF PROPERTY. § 579. 
 
 their liability was limited to tlie taking and treatment of 
 those sheep only which were actually impounded. It was 
 held that neither of these objections was tenable."^ 
 
 § 579. The allowance or refusal by the court of an 
 amendment of the declaration will depend upon the fact 
 whether or not the plaintiff proposes to introduce any new 
 substantive cause of action ; that is, a new and independent 
 demand ^ot originally claimed ; or whether it sets out in a 
 more orderly, intelligible, and formal manner, claims sub- 
 stantially made, but informally stated in the declaration as 
 first framed. In the latter case it is admissible; in the 
 former, not. The object of amendment is to put into legal 
 and technical form that which was informally stated ; and 
 the only limit is, that under the pretence of amendment, new 
 
 * In the above case, the lirst objection depended upon the erroneous assump- 
 tion that one act only could be proved, although the injury complained of was 
 alleged to have been committed on divers days and times within a specified 
 period, as well as on a day particularly named. The court said: '"If there were 
 any doubts whether, according to the more rigid rules of pleading which 
 formerly prevailed, such a mode of declaring would be sufficient to enable a 
 party to recover for successive and repeated trespasses, there would seem to be 
 no occasion for any now. It is a simple, but comprehensive and intelligible 
 statement of several acts, distinct in time, but identical in kind, all constituting 
 together the plaintiff's cause of complaint. It can subject the defendant to no 
 possible disadvantage, since he may always, if he really believes it material to 
 his defense, guard himself against surprise, and ascertain with exactness the 
 charges made against him by a bill of particulars which is now uniformly or- 
 dered in all similar cases." 
 
 With reference to the other objection, the object and effect of the stipulation 
 was to enlarge and increase, rather than to restrain and diminish, the liability of 
 the defendants. It was, therefore, manifest that the judgment ought to embrace, 
 in addition to the damages for which the defendants were otherwise legally 
 liable, a compensation for those injuries for .which, by their express agreement, 
 they made themselves responsil)le. 
 
 In the same case, the plaintiff contended that, by the default of the defend- 
 ants, taken iu connection with their agreement concerning the assessment of 
 damages, the defendants must be held to have admitted that they took and im- 
 pounded three hundred sheep, being the whole number alleged to have been 
 carried away; and that he was therefore entitled, without further proof of loss, 
 to recover compensation for the injury done to such as he regained, and for the 
 value of so many more as would make with those regained three hundred in the 
 whole. But this would give to the agreement a construction not intended by 
 the parties. Except in relation to the manner in which compensation should be 
 made for the improper and injurious treatment of the sheep while confined iu 
 the pound — which, without some specific provision, the assessor could not prop- 
 erly have included in his assessment — the agreement left him, in all other re- 
 spects, to investigate and dispose of the subject of damages strictly according to 
 law.
 
 § 580. GROUNDS OF DEFENSE. 595 
 
 and distinct substantive causes of action shall not be intro- 
 duced.* 
 
 3. Grounds of defense. 
 
 § 580. The question how far a person can defend an 
 otherwise indefensible act, by showing criminal or unlawful 
 acts on the part of the party injured, has of late years been 
 fully discussed in the courts of this countiy and England. 
 The result generally reached is, that no man can set up a 
 
 * In Bishop v. Baker, 19 Pick. 517, the question was whether the judge be- 
 fore whom the action was tried decided correctly, in permitting the plaintiff to 
 amend by adding a distinct count in trespass for taking and carrying away the 
 plaintiff's goods, when the only count originally was for breaking the plaintiff's 
 close and cariwing away the goods. It was held that he did. Shaw. C. J., said: 
 '' By a long course of practice, it is settled that, under the genus 'trespass,' the 
 several species of quare claKSum and de honis asportatis may well be joined, and. 
 that, if it were now decided otherwise, a vast number of judgments would be 
 held erroneous. If, therefore, these counts had been originally joined, there could 
 have been no objection." 
 
 In an action brought before a justice of the peace for taking away the plaint- 
 iff's cow, the defendant pleaded specially that he was possessed of certain land, 
 and that the cow was doing damage thereon, and he impounded her; and the 
 plaintiff replied that the defendant injured the cow, and, after a trial on that 
 issue, the case was carried by appeal to the Court of Common Pleas. In that 
 court the plaintiff obtained leave to amend, putting in issue the title to the close; 
 and it was held that the allowance of the amendment was error (Kelley v. Taylor, 
 17 Pick. 21Si. By the court: "We think it ought not to have been allowed. 
 It changed the character of the cause. The action, as it went up to the Common 
 Pleas, on the appeal from the justice of the peace, presented the issue of an in 
 jury to the plaintift''s cow, but the amendment jiut in issue the plaintiff''s title to 
 real estate. Now, though, if the action had been commenced in the Court of 
 Common Pleas, the amendment would have been allowable; yet, acting as an 
 appellate court, it could not try an issue which might not have been tried before 
 the justice. If the judgment of the justice had been on the same question as 
 that of the Common Pleas, it would have shown that he had no jurisdiction. 
 Further, where the action is carried up, pursuant to the statute, upon a plea of 
 title to real estate, the parties have a right to appeal from the judgment of the 
 Common Pleas to the Supreme Court. But the effect of sustaining the amend- 
 ment, would be to withdraw the action fr(mi tlie justice by apjjeal, and have a 
 trial on the question of title in the Common Pleas, and then no appeal to the Su- 
 preme Court would be allowable." 
 
 Exceptions will not lie to the refusal of a judge to allow an amendment, un- 
 less the l)ill of exceptions shows that he ruled, as matter of law. that the pro- 
 posed amendment was one which could not be allowed. In Gilman v. Emery, 
 54 jNIaine, 400, wliich was an action of trespass for untying the plaintifl''s horse, 
 which was hitched to one of the defendant's shade trees, and fastening him to 
 a hitching i)ost, it appeared that the horse afterward broke loose from the post 
 and ran away, and broke the wagon. The plaintiff having simply charged the 
 defendant with taking and carrying away the horse and buggy, he moved, in the 
 court l)elow, to amend the declaration by inserting a new count cliarging the 
 defendant with negligence in not hitching the horse securely. Leave not being 
 granted, and tlie plaintiff having excepted, it was held that the exceptions could 
 not be maintained.
 
 596 REMEDY FOR WRONGFUL TAKING OF PROPERTY. § 580. 
 
 public or private wrong, committed by another, as an excuse 
 for a wilful, or unnecessary, or even negligent injury to him 
 or his property.^' It has been held, for instance, that pur- 
 chase and payment made for liquors sold without license, to- 
 gether with the possession of them, are sufficient evidence of 
 title, and a sufficient possession to enable the purchaser to 
 maintain an action of trespass for taking them against a 
 mere wrong-doer. No person has a right to dispossess another 
 of such property by force, and if done without right, the 
 person doing it must be answerable for its value as for other 
 property. In an action of trespass for seizing certain liquors 
 under a warrant, for which a writ of restitution had issued, 
 the defendant offered to prove that, at the time of the seizure, 
 and for a considerable time previous, the liquors were kept 
 for sale by the plaintiff, he not beiyg licensed to sell, and 
 that he had been in the habit of selling said liquors in vio- 
 lation of law, but the presiding judge ruled that such testi- 
 mony was not admissible. It was, however, held by the 
 Supreme Court, that, as the value of the liquors must depend 
 upon their status at the time of seizure, the evidence should 
 have been received.^ Fuller v. Bean^ was an action of 
 trespass against a deputy sheriff for seizing and taking away, 
 by virtue of an attachment, certain liquors, in an action on 
 a note brought by one Felton against one Fuller. It appeared 
 that the liquors originally belonged to Fuller, who 
 was selling them without license, and that becoming 
 embarrassed, and owing the plaintiff, who was his brother, a 
 debt exceeding the value of the liquors, he sold them to the 
 plaintiff who immediately took possession and continued the 
 sale of them without license. The note to Felton was given 
 
 ' Lord V. Chadbourne, 43 Maine, 429. "" 10 Fost. 181. 
 
 * "This principle is defended on the grounds of morality and law, and it 
 reaches and determines a great variety of cases. It may be regarded as among 
 those condensed maxims or statements of the common law, which, by their 
 simplicity and brevity, and more than all, by their flexibility and almost uni- 
 versality, give to that system its wonderful adaptedness to the varying circum- 
 stances of particular cases as they arise, and to the changing condition of so- 
 ciety and its new combinations and discoveries" (Kent, J., in Hamilton v. God- 
 ing, infra).
 
 § 580. GROUNDS OF DEFENSE. 597 
 
 for liquors sold without license, by Feltou to Fuller. The 
 defendant claimed that, as the plaintiff had no license, and 
 as he bought the liquors of his brother, for the purpose of 
 selling them in violation of law, and did actually so sell 
 them, he could not maintain the action ; and, it having been 
 so held at the trial, and a verdict found for the defendant, 
 the Supreme Court set the verdict aside. In Hamilton v. 
 Goding^.the defendant, who was sheriff of the county, took 
 and carried away, by his deputy, certain liquors belonging 
 to the plaintiff. Although it was done under a writ against 
 a third j)arty, yet the defendant set up no defense on that 
 ground, but, at the trial, abandoned all attempt to justify 
 the taking under legal process. This left the defendant 
 simply claiming that he or any other private citizen might 
 lawfully do what he had done, because the articles takeu 
 were not property protected by law. The case presented the 
 naked question whether intoxicating liquors owned and pos- 
 sessed by an individual, he intending to sell them illegally 
 at some time thereafter, were, by this intention, which remained 
 unexecuted, so entirely put out of the protection of the law, 
 that any other person might at his will and pleasure carry 
 away or destroy them ; and it was held that they were not 
 thus outlawed, either in consequence of their nature or by 
 reason of any statute.'^ In Ewings v. Walker,^ and in Ar- 
 
 ' 55 Maine, 419. '9 Gray, 95. 
 
 * In the above case the conrt, in the course of a very elaborate opinion, said: 
 " The commoa law does not arm and send forth single knights errant to vindicate 
 its authority or avenge its wrongs, by inflicting punishment on supposed of- 
 fenders according to the individual opinion and judgment of the avenger. 
 Private action is, as a general rule, confined to private wrongs, and then only to 
 be used when it becomes necessary to prevent or remove imminent and present 
 obstructions to the exercise of private right. Many recent English cases are 
 found which illustrate and adopt these views. It is held that it is not enough 
 for a defendant to show an illegal act or intent on the part of the plaintiff, even 
 if it constitutes a public nuisance. Want of care in driving, for instance, on 
 the highway, cannot be excused by proving that plaintiff's animal, which was 
 injured, was illegally there, or that the plaintiff was driving on the wrong side 
 of the way contrary to the statute. The rule clearly to be deduced from these 
 cases is, that the fact of the existence of a nuisance created by one party, or 
 any illegal doing on his part, will not give a right of action, or be regarded as 
 a defense where there has been a want of due care to avoid injury, and where 
 the other party has voluntarily, and with no other excuse, injured or destroyed, 
 or converted the property " (citing Davies v. Mann, 10 M. & W. 540; Bridge v.
 
 598 EEMEDY FOR WRONGFUL TxVKIKG OF PROPERTY. § 581. 
 
 tbur V. Flanders/ wliere liquors liad been seized by an officer 
 acting under a regular warrant, the officer failing to show a 
 legal right to take and hold part of the liquors seized, 
 undertook to defend as to such part, by showing that all the 
 liquors taken were held by the owner with intent to sell 
 them in violation of law, and, therefore, that no action could 
 be maintained for their value. The court overruled the point 
 made, and held that the officer could not thus protect him- 
 self. These decisions were made under a law of Massachu- 
 setts which declared that no action should be maintained 
 against any officer for seizing, detaining or destroying liquor, 
 or the vessels in which it was kept, unless such liquor and 
 vessels were legally kept by the owner. It was held that 
 the statute did not, in its terms, protect the officers in the 
 foregoing cases ; and further, that if the statute had so un- 
 dertaken to leave the owner remediless for injury to prop- 
 erty, and with no right to be heard, the coui't would not 
 hesitate to say that it was a clear violation of the bill of 
 rights.* 
 
 § 581. An action for the taking and carrying away of 
 personal property under an attachment against a third per- 
 son, will not be barred by a recovery in a suit brought by 
 the same plaintiif for the same property commenced before the 
 actual removal of the property. '^ f A recovery in reple\an, 
 
 G. Junction R. R. Co. 3 M. & W. 244 ; Mayor of Colchester v. Brooke, 7 Q. B. 
 339; Bateman v. Bluck, 18' Ad. & El. :N'. S" 870; Dimes v. Petley, 15 Q. B. 276). 
 
 ' 10 Gray, 107. ' Clark v. Harrington, 4 Yt. 69. 
 
 * It has been held that, at common law, it is not lawful for any and all per- 
 sons to al:)ate a common nuisance, merely because it is a common nuisance, al- 
 though the rule has sometimes been stated in terms so general as to give some 
 countenance to this suppositicm; and further, that the power has not been given 
 to individuals, without process of law. to vindicate public right ; but that the 
 only power thus given to the private citizen, is to remove or abate a common 
 nuisance when his individual right to act is obstructed or prevented by such 
 nuisance. It has been also held that spirituous liquors are not of themselves a 
 common nuisance, and if a nuisance at all, are made such by the statute which 
 provides a mode for their destruction ; that when a statute declares that to be a 
 common nuisance which was not one before, and specifies and directs the mode 
 of abating it, that is the only mode which can be pursued, and that it is not 
 lawful for any private person to destroy the property by way of abatement of a 
 common nuisance (Hamilton v. Goding, siq^ra). 
 
 t In Clark r. Harrington, sirpra, the defendant attached the property in 
 question on the loth of April, but did not remove it. The plaintiff brought her
 
 § 581. GROUNDS OF DEFENSE. 599 
 
 however, with a return of the goods, is a bar to au action of 
 trespass for the same goods, although the damages awarded 
 in the replevin suit have not been paid. ^ So, likewise, where 
 a judgment in replevin is obtained against one of two joint 
 wrong-doers for a part of the property taken, it will be a bar 
 to an action afterward brought against both, for the same 
 trespass, unless it be shown that the defendants destroyed, 
 concealed, or sold a portion of the property so that it could 
 not be replevied.^* But a recovery in replevin against the 
 
 action for it on the 17th of April, the court to be held on the 27th of the same 
 mouth. After the commencement of the action and before the day of trial, the 
 defendant carried away the property. The plaintiff failed in the first action be- 
 cause it was brought before there was any actual carrying away of the property ; 
 and for this carrying away, the jiresent action was brought. The court said : — 
 "The defense set up in this case is so technical, and savors so little of equity, 
 that it ought not to prevail until made out in the most conclusive manner. And 
 the act of carrying away of the property now complained of, may be viewed as 
 distinct from the first attachment. Suppose the defendants had let the property 
 remain as it was till after the trial in the plaintiff's first suit, and the plaintiff 
 failed to recover for want of proof that the defendants had intermeddled to her 
 injury, and when that trial was over, the defendants carried off the property, 
 could it be suspected that the plaintift* was left without remedy for this last tak- 
 ing ? Or if the plaintiff had recovered nominal damages for the first taking, 
 and that only because the property yet remained in the possession, and under 
 the control of the plaintiff', could the defendants, after that, carry away the 
 property, and the plaintift" be left without remedy ? The actual carrying away, 
 must be literally a continuance of the first taking, or so unjust consequences must 
 not follow." 
 
 ' Karr v. Barstow, 24 111. 580. ' Bennett v. Hood, 1 Allen, 47. 
 
 * In Bennett v. Hood et al. supra, it appeared that the two defendants by a 
 single tortious act, carried away certain daguerreotype apparatus, and that the 
 plaintiff had previously obtained a judgment in replevin therefor against Ben- 
 nett, one of the defendants, and nominal damages for the detention; and it was 
 objected that this judgment in replevin was a bar to the present action. Chap- 
 man, J. : — "The court are of opinion that this objection is valid. If the defend- 
 ants had destroyed, concealed, or sold a portion of the propertv, so that it could 
 not be replevied, the plaintiff' might have had some reason to contend that he 
 had a right to replevy that part of the property that could be found, and to 
 maintain a separate action to recover the value of that which h;id been thus sev- 
 ered from it. But we have no occasion in this case to decide that question. 
 The defendant Bennett stands upon the maxim ' JSfeino debet lis vexari iwo una et 
 eadem causa;'' and in this action, he is a second time sued for a single and indi- 
 visible act. As to him, at least, it is an unnecessary multiplication of actions. 
 Tlie plaintiff having obtained a judgment in replevin against Bennett for a part 
 of the property, and also a judgment for nominal damages, the court are of 
 opinion that he cannot maintain the present action against Bennett and Hood 
 jointly for further damages for tlie taking and detention of the whole property, 
 the whole having been" restored to him. The principle insisted on by the 
 plaintiff, that au action will lie against each of several cotrespassers, and that 
 the plaintifl" may elect de meliorihus damnis, is not applicable to the present case. 
 The authorities'on tlie point are collected in the note to Broome v. Wooton, 
 Yelv. Am. ed. 67. They do not decide that after obtaining a judgment in re-
 
 GOO REMEDY FOR WRONGFUL TAKING OF PROPERTY. § 582. 
 
 purchaser of goods sold by an officer, will not bar an action 
 of trespass against the officer for the original taking. The 
 owner of the goods having been deprived of their use by 
 their seizure and detention previous to the sale, such injury 
 would not be compensated by success in the replevin suit. ^ 
 
 § 582. -There is some conflict of authority as to whether 
 in an action of trespass for taking and carrying away goods, 
 a judgment in trover for the value of the goods without sat- 
 isfaction, against one of two joint wrong-doers, will consti- 
 tute a defense. "^^ There are technical reasons and legal decis- 
 
 plevin against one trespasser, be may afterwards sue the other for damages. 
 Still less do they decide that he may afterwards maintain a joint action against 
 both " (citing Farrington v. Pavne, 15 Johns. 432; Bates v. Quattlebom, 2 Nott 
 & McCord, 205; Fetter v. Beale, 1 Salk. 11). 
 
 ' Nagle V. Mullisou, 34 Penn. St. R. 48. 
 
 * In Broome v. Wootou, reported Yelv. 67 ; Cro. Jac. 73 ; Moore, 762, the 
 suit was trover for plate. Plea, former recovery of judgment against J. S. for 
 the same plate. Though the judgment was not satisfied, it was agreed that it 
 was a good bar. Popham, in this case, said: " If one hath judgment to recover 
 in trespass against one, and damages are certain, although he be not satisfied, he 
 shall not have a new action again for this trespass. By the same reason, e contra, 
 if one hath cause of action against two, and obtain judgment against one, he 
 shall not have remedy against the other; and the difference betwixt this case 
 and the case of debt and obligation against two, is, because there every of 
 them is chargeable for the entire debt, and, therefore, a recovery against one is 
 no bar against another, till satisfaction." He here distinguishes between a tort 
 by several, and an obliiration joint and several, where each is severally liable for 
 the entire debt, and upon his several promise. The authority of this case is 
 impliedly recognized in Lacoa v. Barnard, Cro. Car. 35, which was a suit in 
 trover for certain sheep. Plea, that the plaintiff had recovered judgment in an 
 action of trespass, aMeging a conversion of the same sheep, and judgment still 
 in force. To avoid the bar of this judgment, the plaintiff replied that the dam- 
 ages were only recovered for the taking and detention, and not for the conver- 
 sion. It was conceded that if damages had been given for the conversion, and 
 judgment therefor, the plaintiff would be barred ; but as the judgment was not 
 for tliat, the replication was sufficient. 
 
 The learned editor of Yelverton, in a note to the case of Broome v. Wooton, 
 says that the point decided in that case has never been otherwise decided. There 
 is no case — we find none — in which it has been expressly held that a judgment 
 against one joint trespasser, without satisfaction, will not bar a suit against the 
 other. There are cases, where the judgment had been satisfied, in which it was 
 held that judgment and satisfaction will bar, and where stress is laid upon the 
 fact that the judgment was satisfied. These cases are consistent with the case 
 in Yelverton, and the doctrine announced by Baron Parke, and afterward by 
 Jervis, C. J. Judgment and satisfaction would bar another suit against any 
 party jointly liable. It would also bar every concurrent remedy for the same 
 thing, even when no joint action would lie. But this is not inconsistent with 
 the idea that a judgment against one of two persons jointly guilty will, with- 
 out payment, bar any further suit against the otlier. 
 
 The authority of the case of Broome v. Wooton is recognized by Baron
 
 § 582. GROUNDS OF DEFENSE. GOl 
 
 ions ill support of tlie doctrine that sucli judgment, if execu- 
 tion be taken out thereon, is to be regarded as a bar. With 
 this qualification, the cases, if not entirely reconcileable, will 
 be found more consistent with each other. ^ " 
 
 Parke in delivering judgment in King v. Hoare, 13 M. & W. 494. The case 
 was one of joint contract, in which the plea was by one of the debtors of a 
 former recovery against the other for the same debt. He said: " If there be a 
 breach of contract, or M'rong done, or any otlier cause of action by one against 
 another, and judgment be recovered in a court of record, the judgment is a bar 
 to the original cause of action, because it is reduced to a certainty, and the 
 object of the suit attained, so far as it can be at that stage ; and it would be 
 useless and vexatious to subject the defendant to another suit for the purpose of 
 obtaining the same result. Hence the legal maxim — transit in rem judicatam ; 
 the cause of action is changed into matter of record which is of a higher nature, 
 and the inferior remedy is merged in the higher. This appears to be equally 
 true when there is but one cause of action, whether it be against a single person 
 or many. The judgment of a court of record changes the nature of that cause 
 of action, and prevents its being the subject of another suit ; and the cause of 
 action being single, cannot afterward be divided into two." Referring to, and 
 commenting upon, the case of Broome v. Wooton as one that decides that if 
 two commit a joint tort, the judgment against one is, of itself, without execu- 
 tion, a sufficient bar to an action against the other for the same caitse, he said : 
 " We do not think that the case of a joint contract can be distinguished in this 
 respect from a joint tort. There is but one cause of action in each case. 
 ' Whether the action is brought against one or two, it is for the same cause of 
 action.' The only diflerence is, that if one joint debtor be sued alone, he may 
 plead in abatement the non-joinder of his co-contractor, which a joint tort-feasor 
 cannot do. This diflerence arises, not from the fact that there is more than one 
 cause of action, but that one joint wrong-doer cannot call upon the other for 
 contribution to the damages reaovered." 
 
 ' White v. Philbrick, 5 Maine, 147; Hunt v. Bates, 7 R. I. 317; Sanderson 
 V. Caldwell, 2 Aik. 195; Sheldon v. Kibbe, 3 Conn. 214; Osterhout v. Roberts, 
 8 Cowen, 43 ; Livingston v. Bisiiop, 1 Johns. 290 ; Sharp v. Gray, 5 B. Mon. 4 ; 
 Jones V. McNeil, 2 Bailey, 466 ; Walker v. Farnsworth, 2 Kent's Com. 388, note 
 c; ante^ § 61. 
 
 * In the case of Buckland v. Johnson, 6 J. Scott, 80, Eng. C. L. 145, the 
 goods of the plaintiff had been wrongfully converted by the defendant and his 
 son jointl}', by selling them. The proceeds of the sale were received by the de- 
 fendant alone. The suit against the defendant was for the moneys received for 
 the sale of the goods, as money had and received to the plaintiff's use, and he 
 was also charged with converting the plaintiff's goods. The plaintiff had sued 
 the son alone, and recovered £100 as the value of the goods converted, but had 
 not obtained satisfaction. This matter was pleaded by the defendant, and the 
 court adjudged it a sufficient answer. Jervis, C. J., in delivering judgment, 
 said: "The authorities show, that if the son had received this money, as well 
 as converted the goods, and Buckland had sued him in trover, and obtained 
 judgment against him, though it had produced no fruits, that judgment wottld 
 have been a bar to another action against him for money had and received ; upon 
 the same principle, if two jointly convert goods, and one of them receives the 
 proceeds, you cannot, after a recovery against one in trover, have an action 
 against the other for the same conversion, or an action for money had and re- 
 ceived, to recover the value of the goods for which a judgment has already 
 passed in the former action." He quotes and adopts the reasoning of Barou 
 Parke, in King V. Hoare, and says, in conclusion: "The right of action is merged 
 in the judgment. It is the judgment that disposes of the matter, and not the pay-
 
 G02 REMEDY FOR WRONGFUL TAKING OF PROPERTY. § 583. 
 
 § 583. Where in an action for injuries committed on two 
 different occasions, the trial, on motion of the defendant, pro- 
 ceeds as to one, a verdict for the plaintiff therein will not bar a 
 second action for the other injury. In an action of trespass 
 for injuring two horses of the plaintiff, one of the horses 
 having beeu injured on one day and the other horse on 
 another day, the plaintiff, on motion of the defendant, 
 elected to proceed for the injury done to the horse that sur- 
 vived, and a verdict for the damages thereby sustained was 
 found for the plaintiff. The plaintiff' in the first action hav- 
 ing died, his executors afterwards brought an action for the 
 injury done to the horse that was killed, and the defendant 
 pleaded a former recovery for the same trespass, to which 
 the plaintiff" replied, setting forth the foregoing facts. It was 
 held that the plaintiff' was entitled to recover, it being mani- 
 fest fi'om the facts disclosed by the replication that his testa- 
 tor never received any compensation for the injury last com- 
 plained of, and that it was upon the motion of the defendant 
 
 ment." He had before said ; " The whole fallacy of the plaintiff's reasoning, is his 
 losing sight of the fact, that by the judgment in the action of trover, the property 
 in the goods was changed by relation, from the time of conversion, and that, con- 
 sequently, the goods from that moment became the goods of the son, and when 
 the defendant received the proceeds of the sale, he received the son's money — . 
 the property of the goods being then in him." Maule, J., in the same case, said 
 of the plaintiff': "Having his election to sue in trover for the value of the goods, 
 or for the proceeds of the sale, as money liad and received, he elected the former, 
 and has obtained judgment. He has, therefore, got what the law considers 
 equivalent to payment, viz. : a judgment for the value of his goods. The cir- 
 cumstance that the present defendant was a joint converter, or a stranger, makes 
 no difference. If he were a stranger, the plaintiff, having once recovered in re- 
 spect of the same goods, cannot recover again the same thing against anybody 
 else. There is an end of the transaction. Having recovered a judgment, his 
 remedy is altogether gone. His claim was satisfied as against all the world." 
 
 In Adams v. Broughton, Andrews, 18, which was also an action of trover, 
 the plea was a former judgment in trover, against one Mason, for the same goods. 
 The court said : " The property in the goods was altered by the judgment. The 
 damages recovered are the price of the goods, and Mason has the same property 
 as the plaintiff had, and this against all the world. The plaintiff cannot say 
 the goods are his." The damages in this case, were for the conversion of the 
 ^oods to the use of Mason, and their entire loss to the plaintiff. TJiis was the 
 cause of action merged in the judgment. It was not for the goods themselves, 
 but a suit to recover their value, and assumed that they were no longer the goods 
 of the plaintiff, but had wrongfully, it is true, but actually, by the conversion, 
 become the sToods of the defendant.
 
 §§ 584, 585. PLEA. 003 
 
 that the injury now charged was not submitted to the 
 jury.i * 
 
 4. Plea. 
 
 § 584. The defendant may deny the taking, or he may 
 justify it on the ground of his own individual right to the 
 property, or his authority as an agent of the true owner. 
 He may not, unless he sees fit, invoke his official character at 
 all, or he may do so, and plead that as an officer having legal 
 precepts against the plaintiff himself, or any third party, he 
 took the goods. In the latter case, the question to be tried 
 would be the title of such third party as against the plaint- 
 iff's title.2 
 
 § 585. A plea is good which substantially, though in- 
 formally, sets out the defense. In Burdick v. Worral,^ 
 which was an action for driving against and injuring the 
 plaintiff's carriage, the plea averred that the defendant, just 
 before the collision, drove his wagon on the right side of 
 the center of the road, so as to permit the carriage in which 
 the plaintiff' was riding to pass without interference, but 
 that the j)laintiff's carriage was not kept and seasonably 
 turned to the right of the center of the road, and thereby 
 they came in contact with each other by the negligent and 
 unlawful manner in which the plain tift^'s carriage was driven, 
 which caused the damage. If the defendant had averred 
 directly that the plaintiff' was carelessly driving on the 
 wrong side of the road, and thereby caused the accident, 
 there could have been no doubt as to tlie sufficiency of the 
 plea. The objection to it was, that the averment was not 
 positive that the plaintiff^'s carriage was on the wrong side 
 of the highway, but'that the fact, if it existed, was left to be 
 
 * Snider v, Croy, 2 Johns. 237. 
 
 "^ Dane v. Gilmore, 49 Maine, 17;). 
 
 ^ 4 Barb. 596. And see Earing v. Lansingh, 7 Wend. 185. 
 
 * In this case it was held, that as the form of the replication was defective, 
 being argumentative, instead of traversing and denying a former recovery for 
 the same matter, it might be amended on payment of costs.
 
 604 REMEDY FOR WRONGFUL TAKING OF PROPERTY. § 585. 
 
 inferred. It was held, that as the plea substantially, al- 
 though informally, averred that the defendant was on the 
 right side and the plaintiff on the wrong side of the highway, 
 it was certain to a common intent, and that the alleo-ations 
 made out priyna facie a valid defense. ^ But where the 
 defendant is an infant, unless he aver that the injury com- 
 plained of occurred through his unskilfulness, want of know- 
 ledge, discretion and judgment, the court are hound to pre- 
 sume that the injury was wilful.^ 
 
 ' Campbell v. Stakes, 2 Wend. 137. 
 
 * In Burdick v. Worral, mpra^ the replicatioa stated that the traveled part 
 of the highway was fifty feet wide; that the plaintiff was proceeding easterly at 
 the rate of a mile in twelve minutes, and the defendant westerly at the rate of a 
 mile in four minutes; that the plaintiff's wagon was within one foot of the north 
 (left) side of the traveled part of the highway; that there was a space of the 
 traveled road fifteen feet wide between the plaintiff's w-agon and the center, over 
 which the defendant might have passed without interference or interruption, 
 and that the defendant, just before the wagons came in contact, drove his wagon 
 across such last mentioned space, and unnecessarily ran against the plaintiff's 
 carriage, and that the collision happened without any carelessness on her part or 
 on the part of her driver. The question was, whether these allegations satisfac- 
 torily answered the special plea, and thereby sustained the declaration. It was 
 held that the replication Avas defective in not setting forth some fact to show 
 that the plaintiff' or her driver was not careless in being on the wrong side of the 
 highway, or averring that the defendant intentionally and unnecessarily inflicted 
 the injury. The court said: " It is admitted that the plaintiff was on the wrong- 
 side of the road. That unexplained would indicate carelessness on her part. 
 The general allegation that there was none is not sytficient to rebut tlie inference 
 without the averment of some fact to support it. If there was a valid excuse for 
 her being there, such as that the highway was impassable on the other side, or 
 that she was about alighting at home, or on a visit at the place where she was, 
 that should appear affirmatively. From anything that is' said, it does not appear 
 but that she was wrongfully and negligently on the left side of the highway. If 
 so, and the defendant had even been negligent, although that is not directly 
 averred, but may possibly be inferred from his traveling at so rapid a rate, the 
 jjlaintiff" could not recover. The rule is well settled that if the plaintiff's neg- 
 ligence in any way concurs in jsroducing the injury whicli would not have 
 happened without it, the defendant is entitled to judgment. Certainly, if the 
 plaintiff had prudently kept on the right side of the road no injury would have 
 occurred. The plaintiff's negligence, however, would not have justified any in- 
 tentional and unnecessary damage by the defendant. If he crossed the space 
 between the plaintiff's wagon and the center with the intention of producing the 
 collision, he should be made to pay the damage. But, then, such intention 
 should have been expressly averred. It cannot be inferred simply from the fact 
 of his driving in that direction. He may have supposed, and from what is al- 
 leged he had a right to suppose, until he came too near to avoid the collision, 
 that the plaintiff"'s driver intended to comply with the law. Persons often drive 
 on the public highway at a rapid rate until they are near each other, in such a 
 course that it would be impossible to escape from injury unless each turns as the 
 law directs. In such cases the safety of men's lives often depends upon the 
 prompt observance of the rule to keep to the right."
 
 § 58G. PLEA. G05 
 
 § 586. The general issue will operate as a denial of the 
 defendant's having committed the trespass alleged/ but not 
 a release of the trespass, or any other matter which does not 
 show the takino; lawful.^ * In Fuller v, Rounceville,*^ which 
 was an action for taking and carrying away the plaintiff's 
 sleigh, the defendant offered in evidence a mortgage prior in 
 point of time to the title of the plaintiff, and proof of peace- 
 able j)ossession taken of the property mortgaged by the de- 
 fendant as agent of the mortgagee, the taking possession in 
 that manner being the act complained of. It was held, that 
 as the matters of defense relied on were a direct denial of 
 the allegation of property in the plaintiff, as well as of all 
 right of possession in him as against the defendant at the 
 time of the trespass, they were admissible under the general 
 issue. But in an action of trespass for carrying away a 
 quantity of rails which had been previously scattered by the 
 plaintiff' along the line of land occupied by the defendant in 
 order to construct of them a fence, to which the general issue 
 was pleaded, it was held, that upon proof that the defendant 
 took the rails from where they were laid, and piled them in 
 a different part of the lot, the plaintiff, was entitled to recover 
 their value ; that if the defendant had desired to show in 
 what capacity he was occupying, or that the rails were un- 
 lawfully placed upon the land, or that they were the occasion 
 of injury to it, and he had removed them to prevent such in- 
 jury, or had taken them by the license of the plaintiff, such 
 facts should have been pleaded.* The defendant cannot in- 
 troduce under the general issue evidence to show that the 
 act complained of was done by virtue of legal process.^ 
 
 ' 3 Nev. & M. 9; 5 B. «& Adol. 9; 10 Bing. 471; 2 C. & M. 23; 2 Dowl. P. C. 
 325. 
 
 ' Wilcox V. Sherwin, 1 Chipman, 72. => 9 Fost. 554. 
 
 ' Strong V. Hobbs, 20 Vt. 185. =• Buttcrworth v. Soper, 13 Johns. 443. 
 
 * In an action of trespass for killing a slave, it was proved under the general 
 issue that the slave was sliot and killed by the defendant while he was trying to 
 retake him as a runaway at the request of the plaintiff. A verdict having been 
 rendered for the defendant, a new trial was ordered, with leave to the defendant 
 to plead specially, unless he should enter satisfaction for the costs (Bradley v. 
 Flewitt, 6 Rich. 69).
 
 GOG REMEDY FOR WRONGFUL TAKING OF PROPERTY. § 586. 
 
 Drake v. Barrymore ^ was an action of trespass brouglit by 
 Barrymore in the court below against Di-ake and two other 
 persons for taking and carrying away the plaintiff's hog, "to 
 which the defendants pleaded the general issue. On the 
 trial, the defendants offered to prove that two of the defend- 
 ants were trustees of a school district, and had regularly 
 issued a "warrant to Drake as collector of the district, and 
 that he took the hog under that warrant ; but it was held 
 that the justification under the collector's w^arrant could not 
 be admitted under a plea of not guilty. * And where an 
 action is brought by a tenant against his landlord for a 
 wrongful distress, the defendant cannot justify the taking 
 under the general issue unless the goods were seized upon 
 the demised j^remises.^ f The rule that all of the part 
 owners of a chattel must join in the action, being for the 
 benefit of the defendant, he may waive the right to insist 
 upon it by not raising the objection by plea in abatement. 
 He cannot take advantage of the irregularity under the 
 
 ' 14 Johns. 166. . 
 
 - Oliver v. Phelps, 1 Spencer, 180. 
 
 * By the statute of James 1st, it was first enacted that in actions Ijrought 
 against certain officers therein named and their assistants for any act done in 
 their respective offices, the defendant might plead the general issue, and give in 
 evidence any sjiecial matter which, had it l)een pleaded, would have been suffi- 
 cient to have discharged the defendant of tlie trespass. It was made in favor of 
 certain officers only, who were frequently exposed to A-exatious suits for acts 
 done in the execution of their several offices. The expense, delay and vexation 
 of pleading specially a justification in every such case must have been extremely 
 burdensome. Besides, so strict were the rules of pleading held, both as to 
 matter of form and substance, that few cases could come to trial on their real 
 merits. For this reason, it was in the power of a few litigious persons to ruin an 
 officer in public trust, though acting with the utmost integrity, and the fullest 
 knowledge of his duty. 
 
 t The first count in trespass was for seizing and carrying away certain goods, 
 chattels and effects of the plaintiff, to wit, &:c. Fifth count for tearing aM'ay, 
 severing and removing divers fixtures of the plaintiff. Pleas, first, not guilty ; 
 secondly, a justification to the first count by taking the goods and chattels as a 
 distress for rent due from the plaintiff. Keplication denying the tenancy, and 
 issue thereon. The judge at the trial directed tlie jury that the justification 
 covered the whole declaration. A verdict was, however, found for the plaintiff', 
 with one farthing damages. It was held that the justification was prima facie 
 an answer to seizing and carrying away in the first count, and that the plaintiff, 
 if he intended to rely on some of the articles l^eing fixtures, ought to have re-^ 
 plied that fact, but tliat the justification was no answer to the tresjiasses stated 
 in the fifth count (Twigg v. Potts, 1 C. M. & R. 89 ; 3 Tyr. 969).
 
 § 587. PLEA. 607 
 
 general issue, although it appear from the plaintiff's own 
 showing that he is only a part owner.^ 
 
 § 587. Where in an action of trespass for taking goods, the 
 defense is that they were taken under process, the plea must 
 specify and particularly describe the process, and set out 
 every fact necessary to show the justification; otherwise it 
 will not be allowed in evidence.^ But it need not state the 
 cause of action for which the warrant was issued.^ If the de- 
 fendant justify as plaintiff in a suit in an inferior court, under 
 mesne process of that court, he must allege, in his plea, that 
 the cause of action arose within the jurisdiction ; * and that 
 the process has been returned.^ In justifying a trespass un- 
 der the process of a foreign court, a plea which only states 
 that the court abroad w^as governed by foreign laws ; that 
 the property seized was wdthin its jurisdiction ; that certain 
 legal proceedings were had, according to such foreign laws, 
 against the property in question in such court, having com- 
 petent jurisdiction in that behalf; that the defendant was 
 ordered by the said court, having competent authority in 
 that behalf, to seize the property, is bad, being too general, 
 and not giving the plaintiff" notice whether the defendant 
 justified as an ofiicer of the court, or party to the cause, or 
 of what nature the charge was, or by whom instituted, or 
 what the order of seizure was.^ Although, where the action 
 is against an officer for levying upon property, the defendant 
 need not plead the judgment, nor show a sale of the property 
 taken, ^ ^ yet he ought to describe the execution with suffi- 
 
 ' Lothrop V. Arnold, 25 IVIaine. 136 ; Pickering v. Pickering, 11 N. Hamp. 
 141; 12 lb. 148; Hart v. Fitzs^erald, 2 Mass. 511"; Patten v. Gurney, 17 Mass. 
 182; Bradish v. Schenck, 8 Johns. 151; 1 Chit. PI. 52, 53. 
 
 ^ Harrison v. Davis, 2 Stew. 350. 
 
 = Linsley v. Keys, 5 Johns. 123; Belk v. Broadbent, 3 Term R. 183. 
 
 * Evans v. Munkley, 4 Taunt. 48; Trevor v. Wall, 1 T. B. 151. 
 
 " Middleton v. Price, 1 Wiis. 17; 2 Stra. 1184; Rowland v. Veale, Cowp. 20. 
 « CoUett V. Keith, 2 East, 260; 4 Esp. 212. 'Burton v. Sweauej', 4 Mo. 1. 
 
 * In an action against an officer for seizing the property of the plaintiff upon 
 executions against a third ])erson, it was held that a special plea, in which tlie 
 defendant set up a bond of indemnity executed by the plaintiffs in the execu- 
 tions, need not recite the judgments on which the executions issued (Davis v, 
 Davis, 2 Gratt. 363;.
 
 COS REIMEDY FOK WRONGFUL TAKING OF PROPERTY. § 588. 
 
 cieut certainty, stating out of wLat court or by Avhat author- 
 ity it issued, and giving sucli information in the defense as 
 may show the plaintiff what is relied upon.^ 
 
 § 588. Where an officer justifies the seizure of property 
 in the hands of a third person, he must plead his justification 
 specially, it Ibeing new matter.^ It is no defense that a third 
 person is the true owner, unless the wrong-doer connect him- 
 self with the true owner.^ If tlie plaintiff have the posses- 
 sion and apparent ownership of the goods, a plea that they 
 Ijelong to a third party puts no more in issue than not 
 guilty, and is bad for the reason that it denies the plaiutift^'s 
 possession.^ * In an action of tres2:>ass for taking and carry- 
 
 • Cook V. Miller, 11 111. 610; Simpson v. Watrus, 3 Hill, 619. 
 - Glazer v. Clift, 10 Cal. 303. 
 
 = Wooley V. Edson, 35 Vt. 214. 
 
 ' Carter v. Johnson, 2 M. & R. 263; Heath v. Milward, 2 Bing. N. C. 98; 
 Nelson v. Cherrill. 1 M. & Scott, 452 ; 7 Bing. 663 ; Ashmore v. Hardv, 7 Car. & 
 P. 501 ; Davis v. Hooi^er, 4 Stew. & Port. 231 ; Brown v. Artcher, 1 Hill, 266. 
 
 * To an action of trespass for seizing the goods of the plaintiflf, the defendant 
 pleaded that one C. recovered a judgment against F., and sued out a writ of Ji. 
 fa. directed to the sheriH" of Cheshire, by virtue of which writ the defendant, as 
 
 such sheiiff, seized the said goods and chattels of the said F., which are the said 
 several alleged trespasses, «fcc. It was held, on demurrer, that the plea was bad 
 (Harrison v. Dixon, 13 L. J. N. S. 247; 1 Dowl. & L. 454; 12 Mees. & W. 142). 
 
 In Demick v. Chapman, 11 Johns. 132, Chapman brought an action of tres- 
 pass <f6 Imis asportatis in the Court of Common Pleas, "against Demick, who 
 pleaded the general issue. On the trial, the defendant offered to prove that the 
 ])roperty in question belonged to one Ralph Chapman, by whom it was fraudu- 
 lently conveyed to the plaintiflf, and that the defendant s'eized it under an at- 
 tachment against Ralph Chapman. This evidence being overruled, judgment 
 was rendered for the plaintiflf. The Supreme Court, in affirming the judgment, 
 said: "The possession of the projjerty by the plaintiff" was j^rima facie evidence 
 of right; and a mere stranger could not lawfully deprive him of that possession. 
 The offer, therefore, to prove that the property belonged to Ralph Chapman 
 could not excuse the taking by the defendant, without showing some authority 
 or right derived from Ralph Chapman, amounting to a justification ; and this 
 was not admissible under the general issue. The taking was prima fade a tres- 
 pass; and the excuse that it was done by virtue of an attachment issued by a 
 justice of the peace, ought to have been pleaded specially. The transfer of the 
 property, although with the design to defraud creditors, was valid as between 
 the parties. And the defense, founded on the right of a creditor to defeat it by 
 attachment, or by a judgment and execution, is very special, and ought to be 
 disclosed by pleading. The defendant, in the court below, did not come in aid 
 of the officer, or act under his command, so as to bring himself within the statute 
 authorizing the special matter to be given in evidence under the general issue. 
 The testimony was therefore properly overruled." 
 
 In Brown v. Artcher, si^^ra, the court, per Cowen, J., discussed the ]mnci- 
 ples of, and reviewed the decisions sustaining, the above-mentioned rule, as fol- 
 lows: "It was held in the Year Book (27 H. 8, 21, case II), that in trespass de
 
 § 588. PLEA. 009 
 
 ing away from the plaintiff several horses, the defendant 
 pleaded that one Sage being in debt to him, and having de- 
 parted out of the State or kept concealed within it, with in- 
 tent to defraud his creditors, the defendant had caused the 
 property of Sage to be attached, including the horses in 
 question, which had previously been conveyed by Sage to 
 the plaintiff, with intent to defraud the creditors of Sage of 
 thcK just debts; and that the defendant, in aid and by com- 
 mand of the sheriff, for the space of two days, did safely 
 keep the said horses as the proper goods and chattels of the 
 said Sage, which was the same tresj)ass complained of by the 
 plaintiff. It was held that the j^lea was good.^ '^ If the plea 
 
 bonis a plea that the goods were not the plaintiff's property was bad. The same 
 thing was afterward admitted in Wildman v. Norton. 1 Ventr. 249. I believe it 
 has never been denied. Chitty sa\'s that ' the defendant cannot plead property in 
 a stranger or himself, because that goes to contradict the evidence which the 
 plaintiff must adduce on the general issue in support of his case ' (1 Chit. Plead. 
 527, Am. ed.) Tlie usual test of an objection, that the plea amounts to the gen- 
 eral issue, is, whether it takes away all color for maintaining an action, by fixing 
 a negative upon the plaintiff's right, in the first instance. Thus, in trespass, 
 quare clausum fregit^ the defendant pleading title in a third person, a demise to 
 himself, and an entry under that demise, this plea was held bad, because it 
 showed a right of possession in the defendant at the time he entered and com- 
 mitted the trespass complained of (CoUett v. Fliuu, 5 Cowen, 460). So a plea 
 that he entered under a license from such third person (Underwood v. Campbell, 
 11 Wend. 78). Such a plea standing alone virtually says that tlie defendant did 
 not commit any trespass in the plaintiff's close; and is therefore but another 
 mode of pleading not guilty. It absolutely and necessarily denies all possessory 
 right in the plaintiff, the contrary of which he must maintain, or he is not enti- 
 tled to sue. Such a plea is said, by the books, in itself to take away all color or 
 pretense for an action ; and therefore, to be maintainable as a special plea, it 
 must surmise some possession in the plaintiff, at the time, under color of a de- 
 fective title. Taking away, in itself, all imiMed color, it must, in the manner 
 mentioned, substitute what is called express color. The same rule of pleading has 
 been applied to trcsp;iss de bonis (Leyfield's Case, 10 R. 90). Chitty stiys, a plea 
 that A. was possessed of the goods in question as of his own proper goods, 
 amounts to a denial that the plaintiff had any property in them, and tlierefore 
 gives no color of action in itself. To remedy this defect, it must sunnise that 
 the defendant bailed the goods to a stranger who delivered them to the plaint- 
 iff, from whom the defendant took them ; or a possession of the plaintiff under 
 some other defective title. It is peculiar to the action 'of trespass that the de- 
 fendant may surmise such possession, setting up a mere fiction, not traversable, 
 and thus turn what would otherwise be defective, as amounting to the general 
 issue, into a special {)lea. But if such express color be not given, the plea of 
 property in a strMnger or the defendant is cm])hatically defective in the case of 
 trespass de bonis; for there especially, no actual yjossession being expressly shown 
 in the plaintiff* the law intends that it is with the general owner." 
 
 ' Patciier v. Sprague, 2 Johns. 4G2. 
 
 * Tlic plea of not possessed, in an action of trespass for taking the plaintiff's 
 goods, puts in issue the plaintiff's title to, as well as the possession of, the goods 
 (Harrison v. Dixon, 13 Law J. N. S. 247). 
 
 Vol. I.— 39
 
 610 REMEDY FOR WRONGFUL TAKING OF PROPERTY. § 58^. 
 
 justifies the taking, it need not traverse the detention and 
 conversion.^ A declaration in trespass to goods charged the 
 defendant with taking and carrying them away, and also 
 with converting them to his own use. It was held that such 
 conversion was merely matter of aggravation, and that a plea 
 to the whole declaration, justifying the taking of the goods 
 and carrying them away, but omitting to justify their con- 
 version, was good.^ Where the defendant pleads that the 
 goods were taken by virtue of a writ of replevin, he must 
 allege that a bond was given pursuant to the statute, before 
 the property was delivered to him.'^ * 
 
 § 589. In a plea of justification, by a collector under a 
 rate bill and warrant to collect a tax voted by a town, it is 
 not necessary to allege that the town was a corporation, or 
 to show any charter of incorporation. It may be generally 
 true that where a justification is relied on, founded upon the 
 acts of a corporation, the existence or charter of incorpora- 
 tion must be set forth, especially where the corporation is a 
 private one or created for private pui'poses. Although it 
 has been considered that this principle extends to some cor- 
 porations created by public laws, for a limited or j^articular 
 purpose, as in the case of a school district, yet the principle 
 cannot be extended to political corporations created by pub- 
 lic statutes principally for public purposes, and not for the 
 special benefit of the members of the same. Towns are cor- 
 j)orations of this nature. Their corporate powers are given 
 
 ^ Burton v. Sweaney, 4 Mo. 1 ; Dye v. Leatherdall, 3 Wils. 20. 
 
 ' Pratt V. Pratt, 17 L. J. 299. 
 
 = Moors V. Parker, 3 Mass. 810 ; Cushman v. Churchill, 7 lb. 97. 
 
 * In Moors v. Parker, supra^ the court said; "A plaintiff in replevin cannot 
 protect himself by the execution of his writ, unless the officer pursue the author- 
 ity which he derives only from the writ. The authority to the officer to replevy 
 and deliver the goods to the plaintiff" is conditional. The plaintiff must first 
 give him a bond, with sureties, in the penalty and with the condition required 
 by the writ. And if the plaintiff g-ive him this bond, yet the goods are irreplev- 
 iable if they are detained as the plaintiff's on mesne process, warrant of distress, 
 or on execution ; and if the officer should deliver goods so detained, lie will be a 
 trespasser, the writ being no justification for him. The defendant ought, there- 
 fore, to have alleged in his bar that before the delivery he had given the coroner 
 the bond required by his writ, and also that the goods were not so detained as 
 to be irrejileviable by that writ."
 
 §590. PLEA. 611 
 
 by public statutes, and are of public notoriety. Their corpo- 
 rate existence or powers are not derived from their charter, 
 which is rather a grant of land than a charter of incorpora- 
 tion. The persons residing within the territorial limits of a' 
 town, are made members, not on their petition or request, 
 but without their consent ; and are required to perform du- 
 ties for the benefit of the whole public, such as making and 
 repairing roads, building bridges, and taking care of the poor 
 within their territorial limits. As a branch of the government, 
 and as a corporation or institution created for public and po- 
 litical objects, not by a charter, but by a public and general 
 statute, courts must take notice of their existence and recog- 
 nize their powers and privileges. It is not, therefore, neces- 
 sary to set forth in a plea, either their existence or their au- 
 thority as a town.^ The plea need not state the purposes 
 for which the tax was voted. The liability of the plaintiff 
 is sufficiently alleged by averring that he was an inhabitant 
 of the town, having taxable property therein, that a rate bill 
 was made out, and that he was assessed in the sum men- 
 tioned.^ * 
 
 § 590. A special plea admits all it does not deny ; but 
 not the trespasses precisely as laid, in kind, degree, extent, or 
 value. As to acts done, a special plea, if not supported, is 
 much like a judgment by default. It admits a cause of ac- 
 
 ^ Briggs V. Whipple, 7 Vt. 15. - ^ Tbid. 
 
 * In Briggs V. Whipple, svj/ra. the court said: "Taking into consideration 
 that all these taxes are to be laid for public purposes, that they are voted by the 
 persons who have to pay the same, that the controversy is usually between in- 
 habitants of the same town, we think it not unwarrantable to make a presump- 
 tion in favor of the legality of the proceedings of a town in voting a tax, until 
 the contrary is made to appear, and to cast the burden of proving its illegality 
 on the person contesting the same, if the tax was voted at a legal meeting of the 
 inhabitants in jiursuance of a previous warning. It follows that it will be suf- 
 ficient for any person, justifying under a tax laid by a town, to state that it was 
 voted at a legal meeting of the town duly warned, leaving those who contest its 
 A'alidity to specify the particulars wherein it is illegal or invalid." 
 
 In Iowa, wliere an action of trespass was brouglit against a county treasurer 
 for taking personal property for the non-payment of taxes, under a warrant of 
 the county judge, attaclied to the tax list, commanding him to collect the taxes 
 therein mentioned, it was held that he need not set out, with a copy of the war- 
 rant, the tax list; but that an averment in his answer of his readiness to produce 
 the tax list was sufficient (Games v, Kobb, 8 Clarke, Iowa. 193).
 
 612 REMEDY FOR WRONGFUL TAKING OF PROPERTY. § 591. 
 
 tion of the general nature set forth ; but everything else 
 must be shown in proof, unless exact precision in the ad- 
 mitt ad allegation be material to the j^laintiff.^ * 
 
 5. Heplwation. 
 
 § 591. Although, as already stated,^ the plaintiff need 
 only traverse the substantial averments of the plea, yet a 
 replication which leaves the defendant in uncertainty as to 
 the point to be contested, is bad. Where, for instance, the 
 plaintiff rej^lied to a plea which justified the taking as an 
 officer under an attachment, that the defendant did not at- 
 tach said goods by virtue of said writ, it was held that, as 
 the replication put in issue both the fact of the attachment 
 and the authority by which it was made, it was was double 
 and uncertain.^ So, likewise, a replication de injuria^ also 
 new assigning that the goods were taken as a distress not 
 only for the sum alleged in the justification, but also for an- 
 other sum, &c., is double.^ But a replication to a plea justi- 
 fying the removal of the chattels because they incumbered a 
 close, as to a part of the goods de injuria, and as to the 
 other part, extra force and violence, was held good on special 
 demurrer.^ f In trespass against B. &> C. for seizing and 
 
 ' Rich V. Rich, 16 Weud. 663 ; Wagener v. Bell, 4 Monr. 7 ; Haley v. Cal- 
 ler, Miuor, 6"3. 
 
 ^ Ante, § 86. = Briggs v. Mason, 31 Vt. 433. 
 
 ' Gisborne v. Wyatt, 1 Gale, 35 ; Thomas v. Marsh, 5 Car. & P. 596. 
 
 ^ Vivian v. Jenkin, 3 Nev. & M. 14; 1 Har. & W. 468; 3 Ad. & E. 741. 
 
 * Where it appeared that the plaintiff owned absolutely some of the goods 
 injured, and was part owner of the rest, it was held that a refusal to exclude 
 evidence of tlie trespass to the goods of which tlie plaintifl" was only part owner, 
 was correct, the defendant not having raised the question of OM'nership in his 
 plea (Lefebre v. Utter, 22 Wis. 189). 
 
 t In an action of trespass for taking cattle, the defendant justified the tak- 
 ing as school district collector. He pleaded the organization and existence of 
 the district, the warning and holding of the school district meeting, the voting 
 of a tax, the liability of the plaintiff to be taxed, the assessment of the tax by 
 the prudential committee of the school district, the delivery to the defendant 
 of a warrant for the collection of the tax, and his proceedings thereunder in 
 taking and disposing the property referred to in the plaintitl''s declaration. To 
 this plea the plaintiff replied that he ought not to be barred because the sup- 
 posed tax was not legally and duly assessed by the then prudential committee 
 upon the lists of the district. It was urged that the replication was defective
 
 § 592. REPLICATION. - 613 
 
 converting tlie goods of A., B. alone justified the seizure and 
 impounding of the goods as a distress for rent, within thirty 
 days after they had been wrongfully removed from the de- 
 mised premises. A. new assigned that he brought his ac- 
 tion, not for the trespasses in the plea mentioned, but for 
 that B., after the seizure, and after payment and acceptance 
 of the rent and expenses, and after he ought to have restored 
 to A. the goods so distrained, retained possession thereof, 
 and sold and disposed of them. It was held that this was 
 no departure.^ "^ 
 
 § 592. If an officer justify, under process, the taking 
 away of goods and converting them to his own use, which is 
 unwarrantable, but qualifies it after, by saying that he took 
 them for the purpose of attaching the plaintiif according to 
 the exigency of the writ, he throws it on the plaintiff to 
 show the excess in his replication.^ When an officer justifies 
 under a legal Avarrant, acts relied upon to make him a tres- 
 passer ab initio should be newly assigned.^ Where the of- 
 ficer justifies, under an execution, a defect in the replication 
 in not alleging that the execution was paid and satisfied 
 
 in not being single — that it put in issue two or more separate and independent 
 facts, each of which constituted a defense to the action, and that it was subject 
 to the same objections that woukl exist to the general replication de injiiria. It 
 wds, however, held that the replication was sufficient (Moss v. Hindes, 28 Vt 
 279). 
 
 ' West V. Nibbs, 4 C. B. 172; 17 L. J. C. P. 150. 
 
 " Moore v. Taylor, 5 Taunt. 69. ' Garrett v. Gwathmey, 5 Blackf. 237. 
 
 * A declaration averred that the defendants wrongfully took the plaintiff's 
 goods. The replication stated that the goods were taken by a sheriff at tiie in- 
 stance and by the direction of the defendants. Held that there was no de- 
 parture (Richardson v. Hall, 21 Md. 399). 
 
 In trespass to personal property, when the answer to the plea confesses and 
 avoids it, the replication should be special. So, where, in breaking and enter- 
 ing the plaintifl"'s house or land, felling his timber, or taking away his goods, 
 the defendant pleads a license which the plaintiff" had revoked before any of the 
 trespasses were committed, or which was confined to some particular thing, and 
 the defendant exceeded it, the plaintiff must state the revocation or excess, in a 
 new assignment. But there are some replications which rather partake of the 
 nature of a new assignment tlian are properly and strictly so. As when a man 
 abuses an authority or license which the law gives him, by which he becomes a 
 trespasser ah initio, if the defendant pleads such license or authority the plaintiff 
 must reply the abuse (1 Chitty's PI. 410-5G3, 567- 5G8; Dye v. Leatherdall, 3 
 Wils. 20; Taylor v. Cole, 3 1). & E. 292; 1 H. Bl. 555; Great Falls Co. v. 
 Worster, 15 N. Hamp. 412).
 
 614 KEMEDY FOR WRONGFUL TAKING OF PROPERTY. § 593. 
 
 previous to tlie trespass, and how much money was paid, 
 is cured by verdict.^ * 
 
 6. Evidence of 2'>ossession. 
 
 § 593. In an action of trespass for taking personal prop- 
 erty, the plaintiff is bound to show title to the property 
 taken, or a rightful possession. In showing title, proof that 
 he was in possession claiming title, is sufficient prima facie 
 evidence to enable him to maintain the action ; and no one 
 but the true owner, or one connecting himself with the true 
 owner, is at liberty to impeach his title.^ Proof of title 
 will not dispense with proof of possession, whether the 
 plaintiff 's title be derived from an absolute bill of sale, or 
 a condition subsequent as a mortgage.^ The defendant is 
 not put to his justification, until the fact of possession, either 
 actual or constructive, is established by the plaintiff, w^hich 
 fact may be controverted by the defendant.^ A. brought an 
 action of trespass against B. for taking two tables and a 
 chair. B. pleaded not guilty. It was proved that B. took 
 
 ^ Davis V. Cooper, 6 Mo. 148. 
 
 ^ Hoyt V. Van Alstyue, 15 Barb. 568; Duncan v. Spear, 11 Wend. 54, and 
 note. 
 
 = Toby V. Reed, 9 Conn. 216; Davis v. Young, 20 Ala. 151. 
 
 * Howe V. Farrar, 44 Maine, 233. 
 
 * Where, in trespass for detaining, after tender, goods distrained for arrears of 
 rent, a new assignment began with stating that the plaintiff brought his action 
 not only for the trespasses in the introductory part of the plea mentioned, «&c., 
 but also for that, &c., it was held that this inartificial averment was in the na- 
 ture of a discontinuance which was cured after verdict (Ladd v. Thomas, 4 Per. 
 &D. 9; 4 Jur. 798). 
 
 The place where the goods were taken, must in all probability be the place 
 where the witnesses reside, and in that county the trial ought to be, not on the 
 exploded notion for the purpose of having the cause tried by a jury of the 
 vicinage, but because the convenience of the parties will be promoted by it, 
 and there will be a saving of expense in regard to witnesses. In Ross v. Lown, 
 8 Johns. 354, which was an action of trespass for carrying away the goods and 
 chattels of the plaintiff, the venue was changed upon the application of the de- 
 fendant from Onondaga county to Saratoga county where the trespass was com- 
 mitted. The plaintiff now moved to return the venue to the county of Onon- 
 daga, on the ground that he had two or more material witnesses residing in the 
 county. The court, in denying the motion, said: "By the practice of the King's 
 Bench, on the present affidavit, the defendant would be entitled to change the 
 venue unless the plaintiff' stipulated to give material evidence arising in Onon- 
 daga; and without such stipulation, the venue ought to be retained where it 
 now is, in Saratoga. "
 
 § 594. PROOF OF TAKING. 615 
 
 two cliairs and a table in tlie house of D. But none of tlie 
 witnesses knew A., and there was no evidence of any kind 
 to connect A. with the goods taken in D.'s house. It was 
 held that to entitle the plaintiff to recover on these plead- 
 ings, there must be some evidence to connect the plaintiff' 
 with the goods taken ; and, that if there was no such evidence 
 the defendant would be entitled to a verdict.^ * Where the 
 plaintiff proves an actual purchase, payment of the considera- 
 tion, and the taking and keeping possession of the property, 
 the burden of j^roof is on the defendant if he seeks to 
 impeach the title on the ground of fraud.^ 
 
 7. Proof of taking. 
 
 § 594. A wrongful taking may be proved although that 
 phrase is not used in the pleadings.^ Where the property 
 was taken by virtue of a warrant signed by the defendant, 
 he not being present at the taking, and in no other way 
 dii'ecting it, the plaintiff must produce the warrant ; that 
 being the best evidence of what the defendant did.'^ When 
 the action is against a United States collector, by the owner 
 of a vessel which was seized, the sentence of restitution of 
 the United States District Court, not appealed fi'om and 
 still remaining in full force, is conclusive evidence that the 
 seizure was illegal.^ f 
 
 * Forman v. Dawes, 1 Car. & M. 127. - Salmon v. Orser, 5 Duer, 511. 
 
 ' Buck V. Colbath, 7 Minn. 310. * Stebbins v. Cooper, 4 Denio, 191. 
 
 * Hoyt V. Gelstou, 13 Johns. 141 ; affi'd on error, lb. 561. 
 
 * In trespass for taking furze, where there was the general issue, and a plea 
 of a right to estovers from a common, it was held that the defendant might, 
 under the general issue, give evidence of an exclusive right of possession (Fearce 
 V. Lodge, 13 Moore, 50). 
 
 In Maine, in a prosecution under the statute, for the ^\TongfuI destruction of 
 property without the consent of the owner, it is not necessary to prove that the 
 possession of the property was wrongful (State v. Pike, 33 Maine, 3C1). 
 
 t "After the decree of acquittal in the District Court, the same question 
 could not be tried again in the action of trespass; and the decision that the 
 vessel was not liable to seizure and forfeiture, under the charge alleged, was 
 binding and conclusive in the action between these parties. The officer who 
 seizes goods on the ground of forfeiture, and causes them to be libeled and 
 tried, has but two pleas in bar, in an action by the owner. These are, the 
 judgment of the court, if the goods be condemned, and a certificate of probable 
 cause, if the goods be acquitted. If he can show neither, he must answer for
 
 GIG EEMEDY FOR WEONGFUL TAKING OF PROPERTY. § 595. 
 
 § 595. A substantial proof of the taking set out in tlie 
 declaration will entitle the plaintiff to a verdict. '^ In an 
 action for the penalty imposed by a statute of New York, 
 for taking down or defacing any notice of a sale of real or 
 personal property put up by a sheriff, it was proved that 
 within an hour after the officer had posted the notice at 
 McG.'s grocery, the defendant asked if the officer had left 
 any notice there, took the notice from tke counter, where it 
 lay, and carried it away, saying that " he didn't want any 
 sucli thing lip with his name on " and tkat " it was his 
 business to take them down, and he Avould take them all 
 down ; " that the officer posted the notice by pinning it to 
 the wall ; that the wind blew it down, and Mrs. McG. picked 
 it up and laid it on the counter, till ske could get something 
 to put it up with, where it was lying when the defendant took 
 it. It was held that the plaintiff was entitled to recover.^ f 
 
 the seizure in an action at common law. It would operate most injuriously to 
 the plaintiff, if the acquittal of his vessel in the District Court was not to be 
 held conclusive on the question of forfeiture, in all other courts. Suppose the 
 Supreme Court in this case, had admitted as a legal justification the matter set 
 up as a defense, and had held, in opposition to the decree of the District Court, 
 that the vessel was lawfully seized. It is certain that such a decision could not 
 work a forfeiture of the ship; for no other court but the District Court, has 
 authority to condemn. The only effect of such a decision would be to, deprive 
 Hoyt of his remedy for the seizure and detention of his vessel. He and his vessel 
 are to be deemed innocent as resjiects the United States, but guilty as respects 
 the officer who seized. His property is fairly acquitted by the only court that 
 has authority to try and condemn. The government, in whose name and on 
 whose behalf it was seized and libeled, acquiesces in the justness of the 
 sentence, and files no appeal. But when he attempts to sue the officer who did 
 him the injury, a State court, which has no jurisdiction over the question of 
 forfeiture, declares in favor of the lawfulness of the seizure and right of 
 forfeiture, and thus deprives him of all redress. The law is settled, that if 
 goods be seized by a custom house officer and are libeled, tried, and condemned 
 in a court having cognizance of the forfeiture, and the seizing officer be after- 
 wards sued in trespass for taking the goods, he may plead that condemnation in 
 bar of the action. The question then is, suppose the goods to be seized, tried, 
 and acquitted in the District Court, and the officer be then sued for seizing the 
 goods, can the officer contest the legality of the seizure over again? or cannot 
 the owner in his turn set up the sentence of acquittal as a bar to that inquiry ? 
 I entertain no doubt, it is equally well settled as the other; and that if the 
 condemnation is a bar to the action on the one hand, the acquittal is a bar to 
 the defense on the other " (The Chancellor delivering the opinion of the Court 
 of Errors in Gelston v. Hoyt, 13 Johns. 561). 
 
 ^ Murphy v. Tripp, 44 Barb. 189. 
 
 * In an action for injui'y to personal property, evidence is not admissible 
 of damage to goods not mentioned in the pleadings (Whitmore v. Bowman, 4 
 Greene, Iowa, 148). 
 
 t In Murphy v. Tripp, supra, the court said : ' ' The object of the statute is-
 
 §§ 59G-598. ATTENDANT CIRCUMSTANCES. 617 
 
 8. Evidence as to value. 
 
 § 596. The plaintiff, in order to recoVer more than nominal 
 damages, must prove the value of tlie property taken, or 
 that he lias sustained some special damage.^ 
 
 9. Proof of time. 
 
 § 597. Although, as previously stated,^ the time when 
 the trespass was committed need not in general be proved 
 as laid, yet if the party in pleading time refers to a record, 
 the proof must correspond with the record. Where, there- 
 fore, in an action of trespass de bonis asportatis., the defendant 
 pleaded that he took the goods as collector of a school 
 district, by virtue of a rate bill and warrant, and averred 
 that he was elected collector of the district on a certain day, 
 " as by the records of said school district would more fully 
 appear," and the records showed that he was appointed on a 
 different day ; it was held, that although it might not have 
 been necessary to refer to the records, yet, having done so, 
 the variance was fatal.^ 
 
 10. Attenda/nt circumstances. 
 
 § 598. The attendant circumstances are proper subjects 
 of proof/ In an action for the wrongful seizure of the 
 plaintiff's goods under an attachment, it was held that the 
 fact that the plaintiff was broken up in business, and reduced 
 to poverty without the means of support, was admissible to 
 
 to prevent any interference with the paper put up by the officer, and the contents 
 tliereof, which will defeat its purpose; that is, giving notice of sale. The 
 circumstance that the notice had beeu accidentally blown down after the 
 officer had posted it, and was lying on the counter, does not relieve the defend- 
 ant, if his design was to frustrate the purpose of the officer, and to prevent 
 notice of sale being given; and that such was his design the jury were 
 warranted in finding, from the facts and circumstances presented by the testimony. 
 If the defendant, with such design, had torn off a material part of the notice 
 and carried it away, he would have been literally guilty of defacing. He is 
 none the less guilty within the meaning of the statute, having carried away the. 
 whole notice." 
 
 ' Lay V. Bayless, 4 Cold. Tenn. 246 ; Burr v. Woodrow, 1 Bush, Ky. 003. 
 
 = Ante, §§ 73, 96. '' M'Daniels v. Bucklin, 13 Vt. 279. 
 
 * Zimmerman v. Helser, 32 Md. 274; Romaine v. Norris, 3 Ilalst. 80; ante^ 
 §05.
 
 618 REMEDY FOR WRONGFUL TAKING OF PROPERTY. § 599. 
 
 sll0^v special damage.^ But tlie doctrine that tlae circum- 
 stances attending a trespass may be given in evidence in 
 order to enhance the damages, though not alleged in the 
 declaration, has no aj^plication where the circumstances 
 themselves constitute an independent cause of action ; and 
 the fact that the defendant, in protecting his own property 
 as he supposed, injured the person of the plaintiff, is not an 
 exception to the rule, where there is no allegation of personal 
 injury.' 
 
 11. Intention. 
 
 § 599. Although proof of motive. is not necessary to sus- 
 tain an action for taking and carrying away goods, yet with 
 reference to the question of damages, the intention with 
 which the act was committed, is sometimes important."^ * In 
 Wood V. Morewood * it is said to have been held by Parke 
 Baron, in an action of trover for coals taken, that if the 
 defendant took them without beino; conscious that he was 
 doing wrong, they might be estimated as if they were to be 
 sold by the plaintiff', unsevered; if otherwise, then at the 
 price they would be worth when first severed. The jury re- 
 turned the former, and the decision was acquiesced in. " This 
 seems in conflict with the decisions in New York, but shows 
 the leaning of the mind of a very distinguished jurist to- 
 wards the equity of not allowing exemplary damages to be 
 recovered against one not conscious of doing wrong, when 
 he took the goods of another." ^ In an action for taking a 
 
 ' Moore v. Scbultz, 31 Md. 418. "" Plumb v. Ives, 39 Conn. 120. 
 
 ' White Water Valley Canal Co. v. Dow, 1 Smith, Ind. 62 ; HiUman v. 
 Baumbach, 21 Texas, 203. 
 
 ' 3 Add. & El. N. S. 440, note. 
 
 ^ Whitman, C. J., Cushing v. Longfellows, 26 Maine, 306. 
 
 * Whether or not persons seizing goods exposed for sale contrary to the 
 statute against the disturbance of religious meetings (Elm. Dig. Sts. of N. J. 
 458) have committed a trespass, "will depend upon the intention with which the 
 goods were seized, and not upon the subsequent irregular conduct of those mak- 
 ing the seizure, although such subsequent conduct might be given in evidence 
 to show the intent. The intention in such case being for the jury or court be- 
 low to determine, it cannot be reviewed by the Supreme Court on certiorari 
 (Rogers v. Brown, 1 Spencer, 119). 
 
 I
 
 § 599. INTENTION. 619 
 
 slave from the plaintiif, abusive language of the defendant 
 to the plaintiff at the time, was allowed in evidence to show 
 quo animo the act was done, and to increase the damages.^ 
 Churchill v. Watson ^ was an action of trespass for taking a 
 stick of timber belonging to the plaintiff. At the trial in 
 the Circuit Court, the taking of the timber by the defend- 
 ant having been proved, the plaintiff, in order to show the 
 actual damage he had sustained, offered to prove the follow- 
 ing : That he was building a vessel, and had procured the 
 timber for her mast ; that there was no other spar on the 
 Connecticut river suitable for a mast of such a vessel ; that 
 this was well known to the defendant ; that the taking of the 
 spar by the defendant was malicious, and with intent to ob,- 
 struct the plaintiff', and prevent his building and completing 
 the vessel; and that, in consequence of the taking, the 
 plaintiff' was greatly obstructed in building his vessel, and 
 prevented from completing the same. The judge, however, 
 rejected this evidence, and, in charging the jury, adopted the 
 principle that damages were to be given for the value of the 
 property with interest, and presumptive damages for the 
 force only, without taking into consideration any of the ag- 
 gravating circumstances attending the trespass, or the actual 
 damage which the plaintiff had sustained. The Supreme 
 Court, in delivering the opinion granting a new trial, in 
 which all the judges concurred, said: "The jury ought to 
 have taken into consideration, in assessing the damages, that 
 the taking by the defendant was malicious, and with intent 
 to obstruct the plaintiff' and to prevent the building of his 
 vessel ; and all the circumstances attending the transaction 
 ought to have been heard and considered. If the defendant, 
 in a quarrelsome manner, had interfered with the building of 
 the vessel, and by threats had attempted to induce the 
 plaintiff to desist, and failing in this, and knowing that no 
 other spar could be obtained, and, with a view to prevent the 
 building of the vessel, had taken it away forcibly, or wantonly 
 
 ' Ratliff V. Huntley, 5 Iredell, 545. » 5 Day, 140.
 
 020 EEMEDY FOR WRONGFUL TAKING OF PROPERTY. § 602. 
 
 destroyed it, a jury might give a larger sum in damages tlian 
 they would do had it been taken under a mistaken apprehen- 
 sion of the rights of the parties." 
 
 § 600. To make loss of credit admissible in evidence, in 
 an action of trespass for seizing and detaining the plaintiff's 
 goods, it must be shown to be intimately connected with 
 the act complained of, and to have been done with an ag- 
 gravating and malicious intention to injure the party com- 
 plaining.-* 
 
 12. Presu^nptions. 
 
 § 601. We have heretofore spoken of the presumption of 
 fraud in the absence of explanation, where goods sold are 
 left in the possession of the vendor.^ In an action of trespass 
 for taking goods, the defendant pleaded that the goods did 
 not belong to the plaintiff, in manner and form as alleged. 
 The plaintiff' proved that he had purchased them of the 
 sheriff' under an execution issued against one Brennan. The 
 defendant proved that lie had subsequently taken them in 
 execution as the goods of Brennan, they being at the time in 
 Brennan's possession. It was held, that this evidence was 
 admissible, and that it was proper for the judge to leave it 
 to the jury to say whether the previous sale to the plaintiff 
 was hona fide or fraudulent.^ 
 
 § 602. Evidence that a party has on one occasion com- 
 mitted an offense, is incompetent to show that he subse- 
 quently committed a distinct offense of a similar nature, 
 except in a few cases where guilty knowledge or intention is 
 of the essence of the charge. Therefore, in an action against 
 an officer for seizing, under the statute, a conveyance used in 
 the transportation of intoxicating liquors, the defendant will 
 not be permitted to prove that the plaintiff, prior to the 
 enactment of the statute and for several years previous, was 
 
 ' Thomas v. Isett, 1 Iowa, 470. ' Ante, § oG2. 
 
 ' Ashley v. Mionett, 3 Nev. & P. 231 ; 8 Ad. & E. 131 ; 2 Jnr. 888.
 
 § G02. PRESUMPTIONS. 021 
 
 engaged in illegal traffic in intoxicating spirits, such evidence 
 having no logical or legal tendency to prove any matter in 
 issue at the trial.^ But where an individual in failing cir- 
 cumstances is proved to have disposed of large portions of 
 his property by fraudulent sales, to defeat or delay creditors, 
 it tends to show a similar fraudulent intent on his part as to 
 the disposition of any remainder of his property he may 
 attempt to put out of his hands at or about the same time. 
 Such evidence, however, does not affect the vendee, but 
 merely shows a fraudulent intent on the part of the vendor. 
 To affect the vendee, it must be shown that he knew and 
 participated in the intent. Blake v. White ~ was an action 
 of trespass for taking two horses alleged to be the property 
 of the plaintiff. The defendant denied that the plaintiff 
 owned the horses, and contended that they belonged to one 
 James L. Blake, a brother of the plaintiff, as the property of 
 whom they were attached on mesne process, and sold on ex- 
 ecution. Evidence was offered that the horses were pur- 
 chased by James L. Blake with money furnished him for 
 that purpose by Oliver Blake, the plaintiff, and that the 
 horses, after the purchase, were appraised to Oliver in pay- 
 ment of the money advanced by him. It was, however, con- 
 tended by the defendant that this was merely a fraudulent 
 arrangement for the cover of property, and that the purchase 
 was in fact made with James L. Blake's means, and for his 
 "use. It was held, that the entire business transactions be- 
 twixt James and Oliver in relation to other property was 
 clearly competent, as showing a general design on their part 
 to obstruct and delay the creditors of James.^ * 
 
 ' Kent V. Willey, 11 Gray, 368. ' 13 N. Hamp. 267. 
 
 ' See Foster v. Hall, 12 Pick. 89 ; Bridge v. Eggleston, 14 Mass. 245 ; Hawes 
 V. Dingley, 5 Shepl. 341; Howe v. Reed, 3 Fairf. 515; Lovell v. Briggs, 2 N. 
 Hamp. 233; Flagg v. Willington, 6 Greenl. 386; Wliittier v. Varuey, ION. 
 Hamp. 291. 
 
 * Where, in an action of trespass de honis asportatis by the vendee of goods, 
 the plaintiff makes the vendor a witness to prove that they belong to tlie phiintiff, 
 the acts and declarations of tlie witness, after he parted with his interest, are ad- 
 missible to discredit him, but not as evidence of property in the witness (Fiske 
 V. Small, 25 Maine, 455).
 
 622 REMEDY FOR WRONGFUL TAKING OF PROPERTY. § 604. 
 
 § 603. Where personal property is wrongfully seized by 
 an officer, a slight circumstance will sometimes raise a pre- 
 sumption that the seizure was made by direction of the party 
 for whom the officer acted. An attorney indorsed a writ of 
 Ji. fa. as follows : " The defendant resides at W., and is an 
 innkeeper." L. (defendant in that suit) resided at W. and 
 conducted the business of A., who was his mother-in-law, and 
 kept an inn there, and the goods on the premises were her 
 property. The sheriff having seized A.'s goods at the inn, 
 under the fi. fa.., it was held, that there was evidence to go to 
 the jury that the attorney directed the sheriff to seize the 
 goods, and to make him liable in trespass.^ In the following 
 case, the circumstance relied upon was deemed insufficient : 
 Two attorneys issued a precept on a judgment recovered in a 
 local court to the bailiff, and indorsed their names on it. 
 They knew the residence of the defendant, and one of them 
 sent him word that the levy would not be made on a par- 
 ticular day. The bailiff, while executing the levy, stated 
 that he was employed by the attorneys. The defendant's 
 house being without the jurisdiction, he brought an action 
 against the bailiff and the attorneys, who severed in their 
 pleas, and pleaded the general issue and a justification under 
 the process. It was held, that there was not sufficient evi- 
 dence to show that the attorneys authorized the illegal execu- 
 tion of the writ, independently of the special plea, and 
 therefore that they were entitled to a verdict of acquittal on 
 the general issue.^ 
 
 § 604. The fact that a persou has caused goods to be 
 attached will not estop him from showing that the goods 
 were at the time in reality his property. In an action of 
 trespass for taking and carrying away a certain wagon, it ap- 
 peared that the defendant kept the wagon ten days, when 
 the plaintiff caused it to be attached, and that the officer, 
 upon attaching it, delivered it to the hired man of the 
 
 ' Bowles V. Senior, 15 L. J. N. S. 231 ; 10 Jiir. 354. 
 
 ' Sowell V. Champion, 2 Nev. & P. 627; 6 Ad. & E. 407.
 
 § 605. PRESUMPTIONS. 623 
 
 plaintiff, who placed it under the plaintiff's shed, where it 
 had ever since remained. It was held, that the wagon was 
 not to be deemed, as matter of law, to have been transferred 
 to the plaintiff at the time it was attached and placed nnder 
 his shed ; and that the plaintiff, by causing the wagon to be 
 attached, was not estopped from claiming that he had title to 
 it when it was taken from his possession by the defendant.^ * 
 So, likewise, a person by attaching goods as the property of 
 another, will not be estopped from proving that they belong 
 to a third party.^ In an action of trespass against an officer 
 for taking and carrying away certain goods, it was objected 
 that the goods were taken by the defendant by virtue of a 
 writ against the plaintiff, and were attached as his property, 
 and therefore that the defendant was estopped to deny that 
 they were the plaintiff's property. But it was held other- 
 wise. For if the attachment was made by mistake, suppos- 
 ing the goods to be the plaintift^'s property when they were 
 not, there could be no reason why the plaintiff should be 
 entitled to an action for taking property to which he had no 
 title.^ 
 
 § 605. It is of the essence of an estoppel in pais that the 
 party claiming the benefit of the estoppel relied on the decla- 
 rations of the other party as true, and was thereby induced 
 
 ' Lewis V. Morse, 30 Conn. 211. = Loomis v. Green, 7 Maine, 386. 
 
 ' Roberts v. Wentwortb, 5 Cush. 193. 
 
 * In this case the court said: "The effect of the attachment was not to re- 
 store the property to the plaintiff, or estop him from asserting his previous own- 
 ership. By the attachment, the wagon was taken into the custody of the law, 
 and upon the termination of the suit it would be the duty of the officer to treat 
 it as any other property of the defendant seized under the same process. The 
 defendant might at any time regain possession of the wagon by a writ of re- 
 plevin ; and so long as it was holden under the attachment it is immaterial in 
 what place it is kept by the officer. The mere circumstance that it was placed 
 for safe keeping upon the plaintiffs premises makes no difference, as it was still 
 in the custody of the law. Had it appeared that the plaintiff, availing himself 
 of the situation of the property, had resumed his possession, the defendant 
 might have waived his title and shown, in mitigation of damages, that the prop- 
 erty had gone back into the plaintiff's possession. But that does not appear to 
 have been done. Had the property been in fact restored to the plaintiff, the 
 proper damages would have been those occasioiied by the taking and detention 
 merely. But as there was no evidence of any such restoration of the property, 
 we see not why the plaintiff is not entitled to a verdict for its value."
 
 C24 REMEDY FOR WRONGFUL TAKING OF PROPERTY. §606. 
 
 to act differently from what he otherwise would ; so that he 
 will be prejudiced by the other party's being permitted to 
 prove the fact different from what he has declared it to be. 
 Therefore, in an action of trespass for taking a cow, it was 
 held, that the plaintiff' was not esto2:)ped by his admission to 
 the attorney of the attaching creditor, subsequent to the 
 attachment and before the sale, that the plaintiff owned the 
 cow, because such attachment and taking were not made on 
 the faith of the admission.^ So, likewise, in an action of 
 trespass against a deputy sheriff for seizing property under 
 an attachment which was not sustained, it was held, that the 
 plaintiff was not estopj)ed to show that he owned the prop- 
 erty, although at the time of the attachment he was in em- 
 barrassed circumstances, and stated on several occasions that 
 ]io part of the property belonged to him, such declarations 
 not having affected either j^arty. If the declarations of the 
 plaintiff had been acted on, it would have been different. 
 But the case showed that the admissions, although made 
 with a view to influence the conduct of the defendant, did 
 not in fact influence it.^ 
 
 13. Evidence in justification. 
 
 § 606. The taking being proved, it is for the defendant 
 to justify an act wh\ch 2yrima facie is a trespass. When the 
 answer in effect admits property in the ]3laintiff and a taking 
 by the defendant, the case is prima facie for the plaintiff, 
 and entitles him to a verdict unless the defendant proves a 
 justification. If the defendant allege authority as an ofiicer 
 to seize the property in controversy, it is a defense in the 
 nature of an avoidance of the plaintiff's claim for damages. 
 The whole issue is then on the justification set up in the 
 answer, and it is incumbent on the defendant to go forward 
 and establish his defense.^ Woodbridge v. Conner* was an 
 
 ' Robinson v. Hawkins, 38 Vt. 693. ' Wallis v. Truesdell, 6 Pick. 455. 
 
 ' Kent V. Willey, 11 Gray, 3G8; 1 Greenlf. Ev. 635, 639. 
 * 49 Maine, 353.
 
 § 607. EVIDENCE IN JUSTIFICATION. G25 
 
 action of trespass for seizing and selling a wagon of the 
 plaintiff. A witness called by the plaintiff testified that 
 having tax bills and a warrant in his hands, the defendant 
 informed witness that the plaintiff had said he hould not 
 pay his tax, and that the defendant then directed the wit- 
 ness if the plaintiff' wonld not pay the tax to seize the prop- 
 ,erty. There was no proof that the witness was a collector 
 of taxes. "What taxes were assessed, or what warrant for 
 their collection was issued, did not appear. The judge re- 
 marked that as the defendant, if he had a justification, had 
 studiously avoided disclosing it, it was not for the court to 
 presume its existence. So, where an action was brought by 
 the assignees of an insolvent debtor against an officer for 
 taking and carrying away personal property of the debtor in 
 their possession under an attachment issued against the debtor 
 in favor of A. and others, the defendant offered to prove that 
 the assignment to the plaintiffs was fraudulent and void as 
 to creditors ; it was held that it was incumbent upon the 
 defendant to prove that A. and others were creditors of the 
 debtor, and that the property was seized upon legal proceed- 
 ings brought by them.^ 
 
 § 607. If the trespass be justified under civil or criminal 
 process, the defendant must prove every material fact of the 
 authority under which he justifies.^ Accordingly, where in 
 an action of trespass the plaintiff" called one of the de- 
 fendants, who testified to the taking, and that it was done 
 under a road warrant, it was held that this statement con- 
 stituted no defense, but that the warrant itself should have 
 been produced.'^ When goods taken by an officer are claimed 
 by a person who was not a party to the suit, and the latter 
 brings trespass, and his title is contested on the ground of 
 fraud, a judgment must be shown if the officer justifies under 
 an execution, or a debt if under a writ of attachment, be- 
 cause it is only by showing that the officer acted for a cred- 
 
 ' Cross V. Phelps, IG Barb. 502. " Batchekler v. Currier, 45 N. Ilamp. 460. 
 ' Mcricle v. Mulks, 1 Wis. 3GG. 
 Vai.. I.— 40
 
 626 REMEDY FOB WEONGFUL TAKING OF PROPERTY. § 607. 
 
 itor that lie can question the title of the vendee.^ * But if the 
 court is satisfied that there was a fraudulent transfer of the 
 property of the plaintifl:', and that consequently he liad no 
 right of action, it will not grant a new trial after verdict for 
 the defendant, though the record of the judgment was not 
 given in evidence.^ Where the defendant justifies under the 
 judgment and execution of a justice of the peace, he must 
 prove that such person is a justice.'^ But it seems to have 
 been doubted whether, in an action of trespass against an 
 officer for taking the property of the plaintiff under an at- 
 tachment issued by a justice of the peace against another 
 person, it is necessary for the defendant to prove the prelim- 
 inary proceedings in order to show the jurisdiction of the 
 justice and the regularity of the attachment.^ f 
 
 ^ Bac. Abr. Trespass, G, 1; Bull. N. P. 91, 234; Martyn v. Podger, 5 Burr. 
 2631; Lake v. Billers, 1 Ld. Raym. 733; Ack worth v. Kempe, Doug. 41; Savage 
 V. Smith, 2 W. Bl. 1104; Damon v. Bryant, 2 Pick. 411; Parker v. Walrod, 16 
 Wend. 514; affg. s. c. 13 lb. 296; Simpson v. Watrus, 3 Hill, 619; Gelhaar v. 
 Ross, 1 Hilton, 117; Candee v. Lord, 2 Comst. 269; Hall v. Stryker, 27 N. Y. 
 596; Cook v. Miller, 11 111. 610; Sexey v. Adkinson, 34 Cal. 346. 
 
 = High V. Wilson, 2 Johns. 46. See Dixon v. Watkins, 4 Eng. Ark. 139. 
 
 ' Hunter v. Harris, 4 Blackf. 126. ■* Parker v. Walrod, supra. 
 
 * The judgment is the best evidence of the relation of creditor and debtor, 
 and no other evidence in such a case will be received. Upon the production of 
 such evidence, the sheriff, as defendant, or any one having a right to avail him- 
 self of the judgment and execution, may raise and litigate the question of fraud- 
 ulent sale hy the judgment debtor to the plaintiff. The judgment establishes 
 conclusively the relation of creditor and debtor, and all are bound by it. But 
 in an action against a sheritl for wrongfully seizing goods by virtue of an attach- 
 ment, the defendant may prove, even before judgment in attachment, that the 
 sale of the goods to the plaintiff was fraudulent and void as against the attaching 
 creditors-(Rinchey v. Stryker. 31 N. Y. R. 140). In Thayer v. Willet, 5 Bosw. 
 844, it was held that a sheriff acting under a warrant of attachment issued as a 
 provisional remedy, under the Code before judgment, who has seized property in 
 the possession of a vendee claiming title under a bill of sale from the defendant 
 in the attachment, may show, in defense of an action against him by such vendee 
 to recover the property, that the alleged sale was fraudulent as against the attach- 
 ing creditor. And see to the same effect Skinner v. Oettiuger, 14 Abl). 109; 
 Patterson v. Perry, 10 lb. 82; Belmont v. Lane, 22 How. Pr. R. 365; Kelly v. 
 Breusing, 33 Barb. 123. 
 
 t Where in trespass for taking tlie plaintiff's goods, not guilty is pleaded, and 
 the plaintiff proves that the defendant, an attorney, delivered a Ji. fa. to the 
 sheriff, who thereupon took the goods, whether the defendant may give in evi- 
 dence a judgment on which the fi. fa. issued, qumre (Rundle v. Little, 6 Q. B. 174). 
 
 The validity of an execution under afi. fa. cannot be impeached at 7iis>, priua, 
 on the ground that the judgment ought to have been revived i)y scire fnciis, or 
 that there was an irregularity in the return of the writ (llabberton v. Wakefield, 
 4 Camp. 58).
 
 §§ 608, 609. EVIDENCE IN JUSTIFICATION. 627 
 
 § 608. The officer cannot prove by parol that he had a 
 legal warrant, or that he served it as directed by the statute, 
 but must show by his return what he did under it in order 
 that the court may see whether or not his acts are justified.^ 
 In Purrington v. Loring,^ which was an action of trespass for 
 taking and carrying away the plaintiffs goods, the defendant 
 pleaded that he took the goods as deputy sheriff under war- 
 rants of distress against the plaintiff. An objection to the 
 defendant's justification was, that it appeared from his return 
 upon the warrants of distress on which the chattels were 
 seized, that he sold them after having advertised the time 
 and place of sale twenty-four hours. As by the statute it 
 was the duty of the defendant to advertise four days before 
 the sale, it was admitted that the objection was fatal unless 
 the defendant could be admitted to prove by parol, notwith- 
 standing his return, that he in fact advertised the time and 
 place four days before the sale. But it was held that parol 
 evidence for this purpose was not admissible. * 
 
 § 609. As the law makes the sheriff a certifying officer 
 of his own doings upon precepts which are put into his 
 hands for service, his return is evidence of such official acts 
 as are required by the writ to be performed, but not of facts 
 to excuse their non-performance. In relation to the latter, it 
 is simply prima facie evidence and may be disproved.^ In 
 
 ' Williams v. Ives, 35 Conn. 568. ^ 7 Mass. 388. 
 
 ^ Browning v. Hanford, 5 Denio, 586; reversing s. c. 7 Hill, 130; s. c. 5 Hill, 
 588; Hatliaway v. Goodrich, 5 Vt. 65; Stanton v. Hodges, 6 lb. 64; Gyfford v. 
 Woodgate, 11 East, 397. 
 
 * In Purrington v. Loring, supra, the court said: "The officer's return must 
 be in writing, and when made upon his precept and regularly returned, it must 
 be presumed to be true until the falsity of it be proved. He cannot therefore 
 justify by a parol return when it is his duty to return his doings in writing. 
 And it may be furtiier observed, that the owner of the goods taken has no regu- 
 lar means of knowing whether the officer has done his duty other than by in- 
 specting his return, and if the return may be exphiined, or another return proved 
 by paiol, this means may be useless. And it may be added, that if parol evi- 
 dence was admissible there would be great danger of fraud and perjury. But 
 the officer by doing his duty in returning truly his proceedings indorsed on his 
 prece|)t is liable to no inconvenience if he has acted legally, and if he has not, 
 he ought not to be protected by a false return, whether in writing or by parol." 
 
 Where defects in process, or in the return of an officer, are merely formal, 
 they must be objected to by plea in abatement, or they will be cured (Kelly v. 
 Paris, 10 Vt. 261).
 
 628 REMEDY FOR WRONGFUL TAKING OF PROPERTY. § 610. 
 
 an action of trespass against an officer for taking and carry- 
 ing away a wagon, the defendant justified under a writ of 
 attachment, and the plaintiff claimed that the attachment 
 was served on Sunday and therefore illegal. It was, how- 
 ever, held that the officer's return that the attachment was 
 served on Saturday was conclusive.^ Marble v. Keyes ^ was 
 an action against an officer for attaching and holding the 
 plaintiff's goods under a writ against one Bailey, wlio had 
 the custody of tlie goods. The plaintiff proved that the 
 goods were attached as the property of Bailey, and a keeper 
 placed over them. He also introduced in evidence the writ 
 against Bailey, with the return of the officer thereon that he 
 had attached the goods, and pursuant to an application by 
 the plaintiff in the writ had caused the property to be ap- 
 praised and sold. The defendant objected that this evidence 
 was not sufficient to prove a taking upon which to maintain 
 the action. But it was held otherwise. 
 
 § 610. Between the parties and those claiming under 
 them as privies, and all others whose rights and liabilities 
 are dependent upon the suit, as bail and indorsers, the return 
 of the officer of matters material to be returned, cannot be 
 contradicted for the purpose of invalidating the officer's 
 proceedings or defeating any right acquired under them.^ * 
 
 ' Brown v. Davis, 9 N. Hamp. 76. ^ 9 Gray, 219. 
 
 = Messer v. Bailey, 31 N. Hamp. 18; Johnson v. Stone, 40 lb. 197. 
 
 * Where a warrant is returned, to have been posted at a house of public 
 worship, it will be prima facie taken to be a pul)lic place, and the party who 
 objects that from the character of the town or of the house, it is not properly 
 to be so considered, is bound to show the grounds of his objection (Scammon v. 
 Scammon, 8 Fost. 419). 
 
 Stanton v. Hodges, 6 Vt. 64, was an action of trespass for taking hay and 
 grain, which the plaintiff as deputy sheriff, having attached on a writ against 
 the defendant, had left in the possession of the defendant, and which the latter, 
 after such attachment, had taken and used. The plaintiff's return showed an 
 attachment of all the hay and grain in the defendant's barn. The defendant 
 proved that he had a new barn containing hay and grain, and an old barn contain- 
 ing hay only; and he insisted that the return was void for uncertainty, and that 
 therefore the plaintiff could not recover. CoUamer, J.: ''The return contains 
 no patent ambiguity, and was therefore not void. If any ambiguity was created 
 by the proof put in by the defendant, it was latent, and subject to explanation 
 by proof, and to be made a question to the jury. But the proof did not produce 
 even a latent ambiguity. The attachment was of hay and grain in the same 
 barn; and proving that the defendant had another barn containing hay only, no
 
 § 611. EVIDENCE IN JUSTIFICATION. 629 
 
 § 611. The return of an officer that he had attached 
 personal property, does not necessarily imply that he took 
 the property so as to make him a trespasser, if the attach- 
 ment should fail. Cases may be supposed in which evidence 
 to disprove such an inference might be admissible. If, for 
 instance, an attachment were returned at the request of the 
 owner of the property, in order to give a preference to a 
 favored creditor, the officer could not be charged as a tres- 
 passer; iov volenti non fit injuria. So, if an officer returns 
 an attachment without removing the property, leaving it in 
 the possession of the debtor at his request, the attachment 
 may be good for some purposes, as it would render him 
 liable to the creditor, and would authorize him afterward to 
 take possession of the proj^erty. Evidence therefore to 
 
 more created ambiguity, than proving that he had another barn containing 
 neither hay nor grain. The identity related to the hay and grain ; not to the 
 barns." 
 
 In Putnam v. Man, 3 Wend. 203, the question arose -whether where a 
 constable serves a summons in his own favor, issued by a justice of the peace, 
 the return made by the constable upon the summons could be impeached in an 
 action of trespass. The Supreme Court in deciding in the negative, said: "I 
 am inclined to think the constable's return upon the summons was not traversable 
 in this action. The return, though false, gave the justice jurisdiction of the 
 person of the defendant ; for the act provides that the constable serving the 
 summons shall, ujion the oath of his office, return thereupon the time and manner 
 of executing the same, and sign his name thereto; and in case the defendant 
 does not appear at the time and 2ilace appointed in such summons, and it shall 
 appear by the return, indorsed thereon, that the summons was personally served, 
 the justice shall then proceed. The return of the constable is the evidence 
 upon which the statute authorizes and requires the justice to proceed. He 
 must therefore obtain jurisdiction of the defendant's person by virtue of the 
 return; and the judgment which may be subsequently rendered will protect 
 the magistrate, the party and the officer who may be instrumental in enforcing 
 it. The constable's return is conclusive against the defendant in the cause in 
 which it is made. He cannot traverse the truth of it by a plea in abatement or- 
 otherwise; but if it l)e false, the defendant's remedy is in an action against the 
 constable for a false return. That the individual who made the false return 
 was tlie plaintiff in the suit, cannot, that I perceive, alter the case. The party 
 injured has a perfect remedy by an action for the false return; or if the de- 
 fendant acted wilfully and corruptly, he might probably be punished criminally, 
 on an indictment for a misdemeanor " (citing Wheeler v. Lampmau, 14 Johns. 
 481). 
 
 That a plaintiff, being a constable, can legally serve a summons in his own 
 favor, was decided in Tuttle v. Hunt, 2 Cowen, 436, where it was held that a 
 plaintiff in a justice's court might serve his own summons, either where he was 
 himself a constable, or was specially deputed for the purpose, in analogy to the 
 case of a capias where no bail is required, which may be served by the 
 sheriff wlien he is plaintiff, or by any other plaintiff, by special deputation 
 (s. V. Putnam v. Man, 3 Wend. 203; and see Bennet v. Fuller, 4 Johns. 486).
 
 G30 REMEDY FOR WRONGFUL TAKING OF PROPERTY. § 613. 
 
 show that in fact the officer did not remove the property, 
 would not necessarily contradict the return.^ 
 
 § 612. Where the statute does not direct that the officer 
 shall make a return, such return will not be legal evidence 
 in his behalf. What credit is to be given to the certificate 
 of an officer who is not required by law to certify his doings, 
 was considered by the Supreme Court of New Hampshire in 
 Davis V. Clements.^ In that case, the plaintiff brought an 
 action of trespass against the defendant for taking the 
 plaintiff's cattle. The defendant j^leaded in bar, that he 
 was surveyor of highways, and took the cattle as a distress 
 for non-payment of highway taxes. The plaintiff replied 
 that the defendant of his own wrong, &c., took the cattle. 
 It was proved on the trial, that the defendant w^as duly 
 chosen surveyor of highways, and had in his hands for 
 collection highway taxes against the plaintiff, and a warrant 
 to collect the same ; and in order to show that his proceed- 
 ings in distraining the cattle were regular, he offered in 
 evidence a certified return of his doings indorsed on the 
 warrant. It was held, that as the law had not made it the 
 duty of a surveyor of highways to make a return, it was no 
 better evidence for him than his own confessions and 
 declarations would have been, and was therefore clearly 
 incompetent. And a similar decision was made in an early 
 case in Vermont, in relation to the certificate of a collector 
 of taxes.^ 
 
 § 613. If there be a plea of duress, the defendant must 
 prove that he had no reasonable means of escaping from the 
 force or fear after they were applied to him, and before the 
 goods M^ere taken away.^ Accordingly, where in an action 
 of trespass for taking the jolaintiff 's horse, the defendants, 
 who were soldiers in the service of the late Confederate 
 States, pleaded that it was done by command of officers 
 in the Confederate Army, it was held that in order to amount 
 
 ' Boynton v. Willard, 10 Pick. 166. = 2 N. Hamp. 390. 
 
 ' Hathaway v. Goodrich, 5 Vt. 65. " Cunningham v. Pitzcr, 2 W. Va. 264.
 
 § 614. EVIDENCE IN JUSTIFICATION. G31 
 
 to a justification, tlie orders, and the circumstances by wliich 
 the defendants were surrounded, must be shown to have 
 amounted to compulsion.^ * 
 
 § 614, Care must be taken that the evidence in justifica- 
 tion conforms to the plea. In trespass for taking goods, the 
 defendants pleaded that W. L. was possessed of a room, and 
 that they, as his servants, removed the goods which were in- 
 cumbering the room to a convenient distance. It was held 
 that this plea was disproved, by showing that the defend- 
 ants locked up the goods in a room and took away the 
 key.^f But a substantial correspondence between the alle- 
 gations of the plea and the evidence will be sufficient. A. 
 being indebted to B., it was agreed that B. should keep A.'s 
 cow until the debt was paid; that A. might di-ive her away 
 every morning and night to be milked, and if he did not re- 
 turn her that B. might retake her whenever or wherever he 
 found her. A. drove her away, and kept her three weeks, 
 whereupon B. retook her. In trespass by A. against B., for 
 so doing, it was held that these facts supported a plea deny- 
 
 ' Witherspoon v. Woody, 4 Cold. Tenn. 605. 
 
 ' Jones V. Lewis, 7 Car. & P. 343. 
 
 * The civil law set aside a contract procured by force or fear or want of liberty 
 inrefi;ard to it. Digest, Lib. 4, Tit. 2, §1. It was said however, that the party 
 must be intimidated by the apprehension of some serious evil of a present or 
 pressing nature, and such as is capable of making an impression upon a person 
 of courage. But Pothier thinks this rule too strict, and that " regard should be 
 had to the age, sex, and condition of the parties," and that "a fear which 
 would not be deemed sufficient to have influenced a man in the prime of life 
 and of a military character, might be sufficient in respect to a woman or a man 
 in the decline of life " (Pothier on Obligations, by Evans, p. 16, art. 3, §§ 2, 25). 
 
 Courts of equity, which derive their principles in a lai'ge degree from the 
 civil law, relieve a party when he does an act or makes a contract, when he is 
 under the influence of extreme terror, or of apprehension short of duress; for 
 in cases of this sort he has no free will, but stands in vincuUs. Circumstances 
 of extreme necessity or distress of a party, although not accompanied by any 
 direct duress or restraint, may also overcome free agency, and justify the court 
 in setting aside the contract on account of some attending oppression, fraudulent 
 advantage or imposition (2 Storv's Eq. §239; and see Whelan v. Wlielan, 3 
 Cowen, 537; Sears v. Shafer, 1 Barb. 408; s. c. 2 Seld. 268; Howell v. Kansom, 
 11 Paige, 538; Ellis v. Messervie, lb. 467). 
 
 t Upon a new assignment of excessive damage to a justification, the evidence 
 on the i)art of the plaintitV must establish a clear excess and unnecessary injury 
 (Hockless V. Mitchell, 4 Esp. 86).
 
 C32 REMEDY FOR WRONGFUL TAKING OF PROPERTY. § 616. 
 
 ing A.'s property in the cow.^ So, likewise, the defendant 
 may sliow under the general issue that the goods were taken 
 as a distress for rent.^ * 
 
 § 615. Although the plea justifies the taking of all of 
 the goods specified in the declaration, yet the defendant is 
 not required to disprove the taking of such as are omitted 
 from the evidence by the plaintiff. In an action for entering 
 a store and carrying away the plaintiff's goods, the defend- 
 ant pleaded that the goods belonged to other persons, and 
 that he levied on them under executions against such per- 
 sons. At the trial, the plea was supported, except as to 
 some of the articles sj^ecified in the declaration, as to which 
 there was no proof of the value, ownership, or taking. It 
 was held that the defendant was entitled to a verdict, and 
 that it was not error in the court to refuse to charge the jury 
 that, as to, the value of the excepted articles, they must find 
 for the plaintiff.^ 
 
 14. Evidence in mitigation of damages. 
 
 § 616. The defendant may show in mitigation of dam- 
 ages, that the property did not belong to the plaintiff, and 
 that it has been apj)lied for the benefit of the owner ; ^ f or 
 
 1 Richards v. Symons, 15 L. J. N. S. 35; 10 Jur. 6. 
 
 " Reed v. Stoiiey, 2 Rich. 401. 
 
 ' Emanuel v. Cocke, 6 Dana, 212; Lovier v. Gilpin, lb. 331. 
 
 * Squire v. Hollenbeck, 9 Pick. 551; Pierce v. Benjamin, 14 lb. 356. 
 
 * In an action of trespass, for taking goods in execution under a judgment 
 which has been set aside for irregularity, evidence is not admissible under the 
 plea of not guilty to show that since the commencement of the action the pro- 
 ceeds of the execution have been paid over to the plaintiff (Rundle v. Little, 13 
 L. J. N. S. 311; 8 Jur. 668; 6 Q. B. 174). 
 
 t Squire v. Hollenbeck, supra, was an action of trespass for taking the 
 plaintiff's horse. The defendant offered to prove on the trial that the horse be- 
 longed to one Crippen, and was taken from the plaintiff and sold under an at- 
 tachment issued in favor of a creditor of Crippen, and the jjroceeds applied to 
 the payment of Crippen's debt. The Supreme Court, in granting a new trial on 
 account of the rejection of this evidence, said: '-It is clear that it is not com- 
 petent to a defendant in trespass for the taking of goods, to plead property in a 
 stranger, and upon sound principle, for the trespass may be an injury to the pos- 
 session. The question to be considered is, whether if the property comes to the 
 use of the owner, evidence of that fact may not be received in mitigation of 
 damages; and we all think it may be. The reason why a party having posses- 
 sion should maintain trespass is, that he may have sustained injury by being 
 
 4
 
 § 617. EVIDENCE IN MITIGATION OF DAMAGES. 633 
 
 in case of improper seizure of goods on execution, that with- 
 out any agency on the part of the officer, the goods in ques- 
 tion have been applied to the payment of the plaintiff's debt 
 due to a third person;^* or that the goods have been re- 
 taken by the owner.^ Where ia an action l)y one of two 
 partners to recover his interest in property taken wrongfully 
 on an execution against the firm, the other partner refusing 
 to be made a plaintiff, was joined as a defendant, it was held 
 that a retaking of the goods, either before or after the com- 
 mencement of the action by the defendant partner, was in 
 legal effect a retaking on the joint account of himself and the 
 plaintiff, and to that extent would reduce the damages.^ 
 
 § 617. Where goods are tortiously taken, and before suit 
 brought there is a sale on legal process against the owner in 
 favor of some person other than the wrong-doer, such second 
 taking will be received in mitigation of damages in an action 
 Ijy the owner against the tort feasor, if the latter took the goods 
 believing that he had a title to them.* In Kaley v. Shed,^ which 
 
 deprived of the goods ; nor Should bis claim to damages be construed strictly. 
 Ordinarily he is either the owner or answerable over to the owner; and in either 
 case he is entitled not only to damages for the taking, but also for the value of 
 the goods. Possession is ^>?'ma /acie evidence of title, and unless the contrary 
 is shown, it is suflBcient to entitle the plaintiff to recover for the value. But 
 here, if the allegation of the defendant can be made out by proof, the plaintiff is 
 not answerable over. The real damage then sustained by him arises from the 
 injury to his special property, and he ought not to recover for the value of the 
 mare. The evidence which was rejected ought to be received, and the burden 
 Avill rest on the defendant to prove satisfactorily the fact alleged, in order to 
 justify a reduction of the damages." 
 
 Where in an action of trespass against a justice of the peace for attaching 
 personal property without the jiroof required by law, the property is restored to 
 the owner before the commencement of the suit. Such restoration, although it 
 cannot be pleaded in bar, must be received in mitigation of damages; otherwise 
 the plaintiff would recover for an injury which he had not sustained (Vosburgh 
 v. Welch, 11 Johns. 175; see 4 Denio, i20). 
 
 ' Sherry v. Schuyler, 2 Hill, 204 ; Wehle v. Haviland, 42 How. Pr. R. 399. 
 
 ' Wehle agst. Butler, 43 How. Pr. R. 5. 
 
 » Nightingale v. Scannell, 18 Cai. 315. 
 
 * Higgins V. Whitney, 24 Wend. 379; Otis v. Jones, 21 lb. 394. 
 " 10 Mete. 317. 
 
 * Irish V. Cloyes, 8 Vt. 30, -was an action of trover, and the evidence of a 
 conversion consisted in a demand and refusal. Subsequently to the demand, 
 the chattels were seized by a third person, a collector of taxes, and were regu- 
 larly disposed of, to satisfy a tax. The plaintiff having thus received the benefit 
 of the property, in satisfaction of his own debt, the court held him entitled to 
 nominal damages only.
 
 G34 REMEDY FOR WRONGFUL TAKING OF PROPERTY. § 617, 
 
 was an action of trespass against a constable, it appeared that 
 the goods were taken from the plaintiff's house by the defend- 
 ant, ^vhilst in the execution of a search warrant ; but not 
 being the goods specified in the warrant, the taking was a 
 trespass. The plaintiff had demanded tlje goods, and whilst 
 the defendant was preparing to return them, they were at- 
 tached as the property of the plaintiff by another officer. It was 
 held that the property being in the custody of the law by legal 
 process, which the defendant could not resist or control, and 
 going to the plaintiff's benefit as much as if it had been re- 
 turned, such application operated to the same extent in mitiga- 
 tion of damages. In New Jersey, it has been held that when it 
 appears that the goods have been attached or taken in exe- 
 cution in the hands of the wrong-doer, upon process issued 
 against the owner, and that they have been applied in satis- 
 faction of the owner's debt, or otberwise for his benefit, this 
 may be shown in mitigation of damages, whether the process 
 be sued out by the trespasser or by a third party.^ In Mas- 
 sachusetts, an action of trespass was brought against a sheriff 
 for taking and carrying away dry goods, by virtue of an 
 attachment in favor of the creditor of the owner of the 
 goods. The latter had mortgaged the goods to the plaintiff, 
 the plaintiff taking them into his possession. A question 
 arose whether the defendant could show, in mitigation of 
 damages, that the property thus Avrongfully taken by him 
 from the possession of the plaintiff was liable to be seques- 
 tered for the debts of the mortgagor, upon the ground of its 
 having been transferred to the plaintifi" in violation of the 
 provisions of the bankrupt law, and had in fact been thus 
 sequestered, and that he had, as assignee, under the decree 
 of the District Court to that effect, accounted for the avails 
 thereof as a part of the assets of the bankrupt, to be distrib- 
 uted among his creditors. The plaintiff insisted that ifthe 
 defendant was a wrong-doer in the original taking of the 
 property, he must be charged with the whole value of it ; 
 
 ' Hoijple V. Higbee, 3 Zab. 342; but see McMicliael v. Masou, 13 Penu. St. 
 R. 214.
 
 I 618. OBJECTIONS TO EVIDENCE, WHEN TO BE MADE. 035 
 
 and this irrespective of the proceedings in bankruptcy, and 
 of the fact that he had been required to account therefor as 
 assignee. It was, however, held that the plaintiff could only 
 recovei' nominal damages.^ * 
 
 15. Objections to evidence^ when to he made. 
 
 § 018. Objections to the admissibility of evidence must be 
 made at the trial. In an action for wrongfully taking trees 
 and converting them into shingles, the defendants allowed 
 the plaintiff to give all his evidence in regard to the value 
 of the shingles, and raised no objection at the trial that the 
 plaintiff was not entitled to recover full damages because of 
 any omission or defect in the complaint. It was held that 
 the objection taken on appeal, that the complaint was not 
 for the shinofles but for the timber in its orio;inal state, came 
 too late.^ Where, in an action of trespass for taking a 
 quantity of hay, the defendant claimed under a chattel mort- 
 gage which had been filed in the town clerk's office, but it 
 was not proved where the mortgagor resided when the mort- 
 gage was executed, it was held that the plaintiff was entitled 
 to recover, the mortgage being void for want of j^roof that 
 it was filed in the proper clerk's office. This decision, how- 
 ever, was afterward overruled by the New York Court of 
 Appeals, on the ground that it did not appear that the fore- 
 going objection was made on the trial.^ 
 
 ' Perry v. Chandler, 2 Cush. 337. 
 
 * Rice V. HoUenbeck, 19 Barb. 664. = Smith v. Jenks, 1 Denio, 580. 
 
 * In this case the court said : " It is no doubt true tliat possession of personal 
 property is sufticient to entitle a party to maintain trespass against the wrong- 
 doer, and to recover tlie whole value of the property; and that it would consti- 
 tute no legal defense, either to the action or to the damages, to show merely ah 
 outstanding title in a third person, or that the plaintiff had a special property in 
 the articles whilst the general property was in another. Some of the cases cited 
 by the counsel for tiie plaintiff seem to go much further, and to hold that in a 
 case where the original taking was unlawful, the plaintiff would be entitled to 
 recover the full value of the pro|)erty taken, and that evidence of the appropria- 
 tion of the proceeds of the property to tlie use of the ])laintiff, or a surrender of 
 it, or of its proceeds, to other persons having a legal title thereto, would not be 
 competent in mitigation of damages. We think a different rule has been adopted 
 in Massachusetts" (citing Ilanmer v. Wilsey, 17 Wend. 91 ; Pierce v. Benja- 
 min, 14 Pick. 356; Kaley v. Shed, 10 Mete. 317; Scpiire v. HoUenbeck, 9 Pick. 
 551).
 
 636 REMEDY FOR WRONGFUL TAKIKG OF PROPERTY. § 619. 
 
 16. Damages in general. 
 
 § 611). The jury may take into consideration the circum- 
 stances Avbich accompanied and gave character to the wrong, 
 and give damages for whatever injury the evidence 'shows 
 necessarily resulted from the wrongful act ; ^ * and the plaint- 
 iff cannot be deprived of them by any mere act of the wrong- 
 doer — as by an unaccepted offer to return tlie property, or 
 causing it to be subsequently taken on legal process against 
 the owner.^ In an action of trespass against two creditors 
 and an officer for attaching the property of tbe debtor, it ap- 
 peared that the officer delivered the property attached to a 
 receiptor, and that the plaintiff', after commencing bis action 
 of trespass, assigned liis claim therein to the receiptor ; and 
 that judgment having afterward been rendered and execution 
 issued in the suit in which the property was attached, the of- 
 ficer demanded the j^roperty of the receiptor who refused to 
 redeliver the same. It was held that such refusal on the part 
 of the receiptor could not go in mitigation of damages, the 
 defendants not having offered to surrender to him his receipt 
 or discharge him from his liability thereon.^ Where it was 
 proved that the plaintiff' having purchased goods of the de- 
 fendant on credit, secretly absconded with them, and that the 
 defendant followed him and forcibly retook the goods, it was 
 held that the measure of damages was the value of the 
 goods, and that the defendant could not consider the debt due 
 from the plaintiff to him, or treat it as reduced by the tak- 
 ing.^ f 
 
 ' Young V. Mertens, 27 Md. 114; Baltimore &c. R. E. Co. v. Blocher, lb. 
 277; ante, §.598. 
 
 - Higgins V. Whitney, 24 Wend. 379; Hanmer v. Wilsey, 17 lb. 91; Otis v. 
 Jones, 21 lb. 394; Rogers v. Fales, 5 Penn. St. R. 154; Wooley v. Carter, 2 
 Halst. 85 ; Johnson v. Parker, 1 N. «& M. 1 ; Denison v. Hyde, 6 Conn. 507 ; 
 Burrows v. Stoddard, 3 lb. 431 ; see ante, § 617, post, § 622. 
 
 ' Ellis V. Howard, 17 Vt. 330. 
 
 ' Gillard v. Brittan, 1 Dowl. N. S. 424; 8 Mees. & W. 575; and see Knight 
 V. Herrin, 48 Maine, 533. 
 
 * Where, in an action of trespass de tonis asportatis, the defendant suffers a 
 default, the plaintiff is entitled to nominal damages only, unless he establishes a 
 claim to a larger sum (Rose v. Gallup, 33 Conn. 338). 
 
 t In an action of trespass against an officer for levying on and selling the
 
 § 620. DAMAGES IN GENERAL. 637 
 
 § 620. Where the action is for the fraudulent, malicious, 
 or wilful taking of goods, the amount of damages is in the 
 discretion of the jury.^ * But, ordinarily, for the mere taking 
 of goods, a verdict for the plaintiff should be for the value of 
 the property taken at the time of the taking, with interest.* 
 Goods having been sold, were seized by the sheriff, in transit, 
 under an attachment against the seller, and judgment by de- 
 fault entered thereon. An action was brought by the owner 
 of the goods against the sheriff for the seizure ; and subse- 
 quently, as the property was peri8hable,\ the parties agreed 
 
 plaintiff's goods, in disregard of his claim for the benefit of the exemption law^ 
 the debt cannot be defalked against the plaintiff's damages (Wilson v. McElroy, 
 32 Penn. St. R. 82). 
 
 In an action of trespass for attaching and selling trust property upon a writ 
 against the trustee personally, the judgment in the attachment suit cannot be de- 
 ducted from the value of the property sued for, on the ground that the demand 
 for which judgment was recovered, was for property bought by the trustee for 
 the benefit of the trust, and appropriated to the use of the cestui que trusty un- 
 less there was mistake or fraud in obtaining it on the personal credit of the 
 trustee. Barber v. Chapin, 28 Vt. 413, was an action of trespass against a 
 deputy sheriff for attaching and selling certain personal property held in trust by 
 the plaintiflf, on a writ in favor of Townsley & Son, against the plaintifi". At the 
 trial, in the court below, the defendant offered to prove, under the general issue, 
 that the property attached by Townsley & Son, and for which they recovered 
 judgment against the present plaintiff, was property bought for the benefit of 
 the trust fund, and applied to the use and benefit of the cestui que trust; and he 
 claimed the right to have the said judgment deducted, by way of recoupment, 
 from the value of the property sued for in the present action. But it was held 
 that the evidence was not admissible, and judgment was rendered in favor of 
 fhe plaintiflf for the full value of the property. The Supreme Court, in afiirm- 
 ing the judgment, said: "Had the plaintifi", by representing himself as the 
 owner, or perhaps by having the possession and ostensible ownership of the 
 property held in trust, gained a false credit with Townsley & Son; and, espe- 
 cially^ had he done this purposely, and the property, obtained through this false 
 credit, had gone to the use of the cestui que trust, it is very probaijlethat a court 
 of equity would have afforded some relief. But nothing of that kind was of- 
 fered to be shown in the present case. Here, for anything apparent, the fact of 
 the property being trust jiroperty was well known to Townsley & Sou at the 
 time the credit was given. And if it had not been known, it might not have 
 been the fault of the cestui que trust, or even of the trustee. The credit then 
 being given to the trustee personally, without fraud or mistake, we are unable 
 to perceive any ground for deducting the amount of the credit from the judg- 
 ment." 
 
 ' Bi-iscoe v. ]\IcElween, 43 Miss. 556 ; Jamison v. Moon, lb. 598. 
 
 - Hopple V. Higbee, 3 Zab. 342; Walker v. Borland, 21 Mo. 289; Coolidge 
 V. Choate, 11 Mete. 79; Feltcm v. Fuller, 35 N. Hamp. 226; Engle v. Jones, 51 
 Mo. 310. And see Franz v. Hilterbrand, 45 lb. 121. 
 
 * In trespass to peisonal property under a pretended claim of right, and with 
 a view to pecuniary gain only, tlie rule of damages is one of compensation merely, 
 and not punitive; no matter iiow unfounded the claim may be, provided tlie act 
 be not such as to imply malice (Lane v. Wilcox, 55 Barb. 615, per Foster, J.)
 
 638 REMEDY FOR WRONGFUL TAKING OF PROPERTY. § 621. 
 
 that an execution should issue upon the judgment in the at- 
 tachment suit, and that the goods should be sold and the 
 proceeds be paid into court to abide the result of the contro- 
 versy. It was held that the owner of the goods was entitled 
 to recover their full value, although he purchased them at 
 such sale for less than they were worth.^ In an action against 
 the collector of customs for improperly seizing and detaining 
 the plaintiff's ship, it was held that the measure of damages 
 was the difference between the price for which the vessel 
 would have sold at the time of her seizure, and the price 
 she actually sold for at public auction directly after her res- 
 toration, together with the actual expenses incurred and the 
 interest on the amount.^* "Where an action was brous-ht 
 against an officer for levying upon the plaintiff's horse, under 
 an execution against a third person, it was held that the 
 measure of damages was the value of the horse to the plaintiff 
 in his business.^ 
 
 § 621. It is obvious that the value of goods taken would 
 
 ^ Ely V. Schumacher, 29 Penn. St. R. 40. 
 
 ^ Woodham v. Gelston, 1 .Johus. 134. ' Farrel v. Colwell, 1 Vroom, 123. 
 
 * In Woodham v. Gelston, supra, the court said: " We are not now to settle 
 a rule of damage which will be applical^le in every action of trespass, but merely 
 whether the one contended for by the plaintiff be proper under all the circum- 
 stances of this case. We think it is. It is seldom that the actual injury sustained 
 in consequence of a tort can be ascertained with so much precision. Since it can 
 be so estimated, and the party is willing to adhere to this measure of damage, 
 there can be no reason to prevent his recovery to that extent. The data on which 
 this esiimate is formed are satisfactory, and leave less to an arbitrary discretion 
 than any which have been proposed as substitutes. The difference between 
 the price in the first and second sale, both being fair, though some credit was 
 given in the first, and the actual expenses he has incurred, will, with the interest, 
 amount to no more than an indemnity to the plaintiff for the injury resulting from 
 the conduct of the defendant. To such an indemnity the defendant, who is ad- 
 mitted to be a trespasser, cannot reasonably object. The marshal's fees must now 
 be presumed to have been properly paid ; and if the defendant were liable for 
 them, as was probably the case, since the property was restored, there can be no 
 hardship in refunding them to the plaintiff. At any rate, it might have been 
 shown to the jury, or stated in the case, that this was a mere voluntary payment, 
 and then a deduction would have been 2:)roper. The interest has been objected 
 to, because the jury were not obliged to allow it. If they had a discretion on this 
 subject, it is sufficient. Two trifling charges for wharfage and ship keeping must 
 be deducted, as they accrued after the restoration of the vessel. As the calcula- 
 tion now stands, the verdict includes a small sum as compound interest. We are 
 of opinion that this must be deducted, without, however, intending to say that 
 compound interest can never in any case be recovered."
 
 § 621. DAMAGES IN GENERAL. 639 
 
 not always furnish a correct standard of recompense.* A 
 party, for instance, has upon his grounds a quantity of stand- 
 ing timber, which he wishes to preserve in the expectation 
 that it may appreciate in value. It would hardly accord 
 with the claims of justice to oblige him to accept from a 
 trespasser, in an action brought to vindicate his rights, the 
 price of the timber at such time as the trespasser might 
 choose to take it.^ Neither does the law recognize the inter- 
 est as uniformly the exact measure of damages;^ but the 
 owner of the goods may prove the value of the use during 
 the time he was deprived of them.'* And there is an excep- 
 tion to the rule when the property has been restored to the 
 owner.* When goods sold under illegal process are bid in 
 for the owner by his agent, the measure of damages in an ac- 
 tion of trespass is the amount of the bid and interest, and not 
 the value of property sold.^ In case of a wrongful levy and 
 sale, the measure of damages is the value of the property at 
 the sale only where the purchaser has obtained the property ; 
 otherwise, the loss actually sustained is the measure.*' Where 
 goods wrongfully attached are left by the officer with the 
 owner, upon his giving a receipt for them, the latter, in an 
 action brought by him against the officer, will be entitled to 
 recover the value of the goods at the time of the attachment, 
 but without interest for the time during which the owner has 
 the use of them under the receipt.'^ So, likewise, if an officer 
 
 ^ Bucknam v. Nash, 12 Maine, 474. 
 
 " Longfellow v. Quimby, 29 Maine, 196 ; s. c. 33 lb. 457. 
 
 ' Warfield v. Walter, 11 Gill & Johns. 80. 
 
 * Hunt V. Haskell, 24 Maine, 339; Curtis v. Ward, 20 Conn. 204; Barry v.- 
 Bennett, 7 Mete. 354; Johnson v. Sumner, 1 lb. 172; Weld v. Oliver, 21 Pick. 
 559; Kennedy v. Whitwell, 4 lb. 460; Greenfield Bank v. Leavitt, 17 lb. 1; Fel- 
 ton V. Fuller, 35 N. Hamp. 226. 
 
 * Baker v. Freeman, 9 Wend. 36. " Warner v. Ostrander, 44 111. 356. 
 ' Eobinson v. Mansfield, 13 Pick. 139. 
 
 * In an action by a married woman for the wrongful taking and removal of 
 her personal property, under an execution against her husband, it -was held that 
 the measure of damages was not the value of the goods seized, but only such 
 damnges, if any, as she liad sustained by reason of the taking and detention of 
 the goods, and the injurious consequences thereof, if any, from the date of the 
 seizure until their restitution, unless the defendants acted after notice and wan- 
 tonly, in which case she would be entitled to exemplary damages (Strasburger v. 
 Barber, 38 Md. 103).
 
 640 REMEDY FOR WRONGFUL TAKING OF PROPERTY. § 622. 
 
 use goods which he has attached, the owner will be entitled to 
 recover their value, unless he subsequently received back the 
 property, or the same was legally disposed of for his benefit, 
 in which case the officer will only be liable for the damages 
 occasioned by the use.^ * Where, in an action for taking and 
 carrying away goods, it appeared that the plaintiff, subse- 
 quent to the asportation, received railroad checks for the 
 goods, which he handed to a third person, with instructions 
 to take charge of the property, it w^as held a sufficient exer- 
 cise of ownership over the goods by the plaintiff to be con- 
 sidered in mitigation of damages.^ 
 
 § 622. Where an action is brought by the mortgagee of 
 personal property against an officer for taking part of it, un- 
 der an attachment against the mortgagor, the defendant may 
 show that the plaintiff has been paid his claim out of the 
 
 ' Collins V. Perkins, 31 Vt. 624 ; Yale v. Saunders, 16 lb. 243 ; Stewart v. 
 Martin, lb. 397; Lamb v. Day, 8 lb. 407. 
 
 ' Dailey v. Crowley, 5 Lans. 301. 
 
 * In an action of trespass for taking a quantity of wood, it appeared that the 
 land whereon the wood was cut was claimed adversely to the plaintiff; that the 
 adverse claimant sold the wood in question to one Mann, who caused it to be 
 cut, and after it was cut employed the defendant to remove it to another part of 
 the same lot. It was held that, if the plaintiif could maintain the action, he was 
 entitled to only such actual damages as were caused by the removal (Pratt v. Bat- 
 tels, 28 Vt. 685). The court said : " We are satisfied that the defendant is not lia- 
 ble in this case lor the value of the wood as it stood upon the land. It is not pre- 
 tended that the defendant has used the wood or in any way converted it to his 
 own use, or done any act in relation to it. but simply remove it from one place to 
 another on the same premises. It was never removed from the farm on which it 
 was cut, and, in fact, the wood was left by the defendant in the actual and con- 
 structive possession of the same person in whom it was before the removal was 
 made. The plaintiff had the same constructive possession after the removal by 
 the defendant that she had before; for it was left on the same premises to which 
 she made her claim of title. The defendant, for that act, cannot be made liable 
 for the value of the wood as it stood on the stump. The plaintiff can recover but 
 nominal damages, or. at most, the actual damages sustained from the mere act of 
 removal. If the defendant had removed the w'ood from the premises, and had 
 taken the same into his exclusive possession, and an action of trespass or trover 
 had been commenced against him, yet, if before judgment the property had been 
 returned and placed upon the premises from which he had taken it, the rule of 
 damages would be the same; the plaintiff could recover but nominal damages, 
 or, at most, actual damages for the removal. The return of the property would 
 mitigate the damages to that amount. The rule of damages in this case can be 
 no greater than in that, for the injury sustained is no greater. The fact that 
 this wood was left in the same lot in which it was taken, and consequently as 
 much in the possession of the plaintiff as it was before its removal, should have 
 the effect to reduce the plaintiff's claim to nominal damages, or such actual dam- 
 ages as were sustained from the act of removing it."
 
 § 623. DAMAGES Il!f GENEEAL. 641 
 
 the property left in Ms possession.^ And if goods wrong- 
 fully taken have afterward been legally sold on an execution 
 against the claimant, such sale wdli take from the considera- 
 tion of the jury all inquiry as to the value of the property, 
 and confine them to such damages only as were actually sus- 
 tained by the wrongful taking.^ So, also, where an action of 
 trespass is brought against an officer for attaching property 
 out of his j)i"ecinct, he may show, in reduction of damages, 
 that having carried the property within his precinct, he at- 
 tached it there, on the same process, after the commencement 
 of the action of trespass against him.^ * 
 
 § 623. If goods deposited with a pawnbroker, as security 
 for advances, are distrained, the measure of damages is the 
 value of the goods, and not the plaintiff's interest in them.* 
 But where personal property mortgaged is left by agreement 
 with the mortgagor, and before forfeitiu'e is seized by the 
 mortgagee, in an action of trespass by the mortgagor there- 
 for, the measure of damages is not the value of the goods, 
 but the value of the plaintiff's interest in them at the time of 
 the trespass.^ So, likewise, when the action is brought by a 
 bailee against the general owner, the plaintiff^ can recover the 
 value of his special property only. If the suit be by the 
 
 ' Ward V. Henry, 15 Wis. 239. 
 
 * Irish V. Cloyes, 8 Vt. 30 ; Clark v. Washburn, 9 lb. 303 ; Squire v. Hollen- 
 beck, 9 Pick. 551 ; Pierce v. Benjamin, 14 lb. 356. 
 
 ' Stewart v. Martin, 16 Vt. 397. : " Swire v. Leach, 18 C. B. N. S. 479. 
 ' Brierly v. Kendall, 17 Adol. & El. K S. 937. 
 
 * Stewart v. Martin, supra, was an action of trespass against a constable for 
 attaching cows and otlier property on a writ against one Corey ; the plaintiff 
 claiming to have previously bought the property of Corey. Williams, Ch. J., in 
 delivering the opinion of the court, said: "The actual damages which the 
 plaintiff sustained were no other than nominal. The damages for driving the 
 cattle across the line between the towns of Arlington and Shaftsbuiy could be 
 no other than nominal, when they were at all times liable to be taken by the 
 creditors of Corey, and were so in fact taken by Iluling. claiming to be a cred- 
 itor. The plaintiff" may consider herself fortunate in trying this question of the 
 validity of the sale from Corey to her at the cost of the defendant, who has been 
 subject to nominal damages in consequence of his going out of his jirecinct to 
 serve the writ of Iluling. 
 
 In an action of trespass f^gainst a sheriff for seizing goods in transit, the 
 measure of damages is the value of tlie goods at the time at the place of consign- 
 ment, less the charges of the carrier for delivering it there. 
 
 Vol. I.— 41
 
 G42 REMEDY FOR WRONGFUL TAKING OF PROPERTY. § G24. 
 
 bailee against a stranger, the plaintiff is entitled to tlie value 
 of the property and interest, according to the general rule, 
 and holds the balance beyond his own claim, in trust for the 
 general owner.^ In a declaration in trespass, the plaintiff, 
 who was an attorney, stated his damages specially, namely, 
 that in consequence of the taking away of a promissory note 
 from his office by the defendant, the plaintiff w^as prevented 
 from prosecuting and collecting it, and was deprived of the 
 profit of a suit for the collection thereof. The judge charged 
 the jury, as a matter of law, that the plaintiff* 's actual damages^ 
 if they found for him, were the amount of the note, principal 
 and interest, together with five dollars for retaining fee and 
 issuing the declaration on the note. It was held, that this 
 instruction was erroneous, the law not implying that the 
 plaintiff had sustained any such damage.^ 
 
 § 624. Not only the direct damage, but the probable or 
 inevitable damages which result from the aggravating cii'- 
 cumstances attending the act, are proper to be estimated by 
 the jury.^ " In an action of trespass for the wrongful seizure 
 
 ' Russell V. Butterfield, 21 Wend. 300; White v. Webb, 15 Conn. 302; Ken- 
 nedy V. Whitwell, 4 Pick. 466 ; Spoor v. Holland, 8 Wend. 445 ; Brizsee v. 
 Maybee, 21 lb. 144. 
 
 = Dumont v. Smith, 4 Denio, 319. ' Allred v. Bray, 41 Mo. 484. 
 
 * In Suydam v. Jenkins, 3 Sandf. 614. the court laid down the following^ 
 rule for ascertaining the sum which tlie injured party ought to recover where 
 personal property is wrongfully detained, whether by force, by fraud, or by pro- 
 cess of law: " Setting aside the exceptional cases, in which exemplary damages 
 may be justly claimed and given, and confining ourselves to those in which the 
 remedy sought is simply pecuniary, the principles which, as it seems to us, are 
 manifestly just and universal in their application, are, that the owner, to whom 
 compensation is due, must be fully indemnified, and that the wrong-doer must 
 not be permitted to derive any benefit or advantage whatever from his wrongful 
 act. It may frequently happen that these i^rinciples, when applied, will co- 
 incide in the result; but there are many cases in which it will be seen that the 
 application of both is necessary. The injured party must be indemnified. He 
 must be placed in the same situation in which he would have beeu had the 
 wrong not been committed, or it had been instantly repaired by the payment of 
 the compensation then due. As the actual loss to the owner is the same, what- 
 ever may be the form of the action in which its reparation is sought, the sum 
 due to him for its compensation must be the same whether he is the plaintiff in 
 trespass or trover, or the defeudaut in replevin. There can be no variance in the 
 amount of an indemnity, and if its criterion can be fixed, any departure from the 
 standard which it establishes must be capricious and arbitrary. * * * * It 
 will be ascertained in all cases by adding to the value of the property, when the 
 owner is dispossessed, the damages which he is proved to have sustained from
 
 I 624. DAMAGES IN GENERAL. G43 
 
 and detention of the j)laintiff's sloop, it was held, tLat the 
 jury were at liberty to consider the expense which might 
 arise in the recov^ery of the property, and damage for the 
 forcible invasion of it, as well as for the injury the vessel had 
 sustained.^ Edwards v. Beacli ^ was an action for forcibly 
 taking, carrying away, and destroying the tavern sign of the 
 plaintiff. On the question of damages, the court said : " The 
 declaration charges a violation of the plaintiff's right of prop- 
 erty and possession by force, and the abduction and destruc- 
 tion of property of a certain value. The value of the prop, 
 erty, or the amount of the injury done to it, is not the only 
 ground of damages. The plaintiff is entitled to recover for 
 the force and injury, according to the nature and circum- 
 stances of the case, and the aggravations attending it, as well 
 as for the value of the property taken. Were it otherwise, 
 a person so disposed might forcibly dispossess another of any 
 article of property at his pleasure, and compel the owner, 
 however unwilling, to accept of the value in its stead." In 
 an action of trespass for wrongfully executing a distress 
 warrant, evidence of loss from the interruption of the 
 plaintiff's business is admissible; and it may be shown that 
 books of peculiar value, and files of papers inclisj^ensable to 
 the plaintiff's business, but of little value to others, were un- 
 necessarily or maliciously taken. ^ In an action for wrong- 
 fully removing a fence, the plaintiff may recover not only for 
 the damage done to the fence, but for the injury of his crops 
 by cattle entering through the breach, in the feuce.'^ In tres- 
 pass for taking saw logs, with a general averment of damages, 
 the jury were instructed that they might allow the plaintiff 
 tke profit he would have made by sawing the timber and by 
 its appreciation in price.^ Where the defendant had wrong- 
 fully seized the plaintiff's goods, but had not removed^them 
 
 the loss of its possession. * * * * But the amount of the judgment that 
 ought to he rendered in liis favor, even when no exemplary damages are claimed, 
 is not necessarily to be limited to an indemnity." 
 
 ' Denison v. Hyde, 6 Conn. 507. ' 3 Day, 447. 
 
 ' Sherman v. Dutch, 16 111. 383. ' Gray v. Waterman, 40 111. 52-2. 
 
 ' Buckuam v. Nash, 12 Maine, 474.
 
 644 REI\rEDY FOR WRONGFUL TAKING OF PROPERTY. § G24. 
 
 from the liouse in which the plaintiff resided, and another 
 wrong-doer, against the will of the defendant, seized the 
 goods while thus in the defendant's possession, the plaintiff 
 was held entitled, in an action of trespass, to recover as dam- 
 ages from the defendant the amount she had been compelled 
 to pay to the second wrong-doer to redeem the goods from 
 him.^ A bailor is entitled to damages for time spent, and 
 expenses incurred, in searching for j^roperty wrongfully taken 
 fi'om the possession of his bailee,^ In Connecticut, where the 
 defendant, an officer, had attached and removed the property 
 of the plaintiff under a writ issued and placed in the officer's 
 hands for service without authority, ifc was held, that the 
 jury, in estimating the damages, might take into considera- 
 tion the necessary expense of prosecuting the suit, over and 
 above the taxed costs;^ But in a subsequent case, in the 
 same State, it appearing that the defendant, who was a pri- 
 vate party, had acted in good faith and with an honest inten- 
 tion, the plaintiff was not allowed the expenses of the litiga- 
 tion.^ * Where goods were taken on execution, under a 
 warrant of attorney and judgment which were afterward set 
 aside as illegal, the plaintiff was not allowed, as part of the 
 damage, his costs incurred in vacating the warrant of attorney 
 and judgment.^ 
 
 ' Keene v. Dilke, 18 L. J. Exch. 440. 
 
 = Heitzman v. Divil, 11 Penn. St. R. 264. 
 
 ^ Williams v. Ives, 25 Conn. 568. See avte, § 394. 
 
 '' Dii.ble V. Morris, 26 Conn. 416. 
 
 ^ Eolloway v. Turner, 6 Q. B. 928. 
 
 * Dibble v. Mori'is, suj:ra, was an action of trespass for the attachment and 
 removal of a yoke of cattle belonging to tlie plaintifl'. The defendant was a 
 creditor of the assignor of the cattle, and seemed to have been honestly endeav- 
 oring to secure his debt by the att^ichinent of the cattle whicli had belonged to 
 his debtor, and v>ere, in fact, in the debtor's hands at the time of the attachment 
 under circumstances calculated to excite suspicions of the bona fides of the as- 
 signment. The judge before whom the cause was tried charged the jury that, 
 "in addition to the value of the property taken by the defendant, and interest 
 thereon, it would be proper for them to take into consideration the expenses 
 necessarily attendant upon prosecuting his clnim in court." The Supreme Court 
 held, that h;id the jury been instructed that if they found the attachment wanton 
 or malicious it would be proper for them to give the plaintiif the amount of his 
 expenses in the litigation, in addition to the value of the property and interest 
 thereon, the charge would have been imexccptionable, but that without that 
 qualitication it was wrong.
 
 §§ G25, G2G. DAMAGES IN GENERAL. &45 
 
 ' § 625. If there is an abuse of authority by which the party 
 becomes a trespasser ab initio^ the phiintiff may recover dam- 
 ages as well for the part of the injury which would have 
 been justified if there had been no abuse, as for that part 
 which is directly caused by the abuse.^ Where goods are 
 seized under process upon a regular judgment, but in a place 
 to which the process does not run, the owner may recover the 
 whole value of the goods, and not merely the amount of the 
 damage which he has sustained by their being taken in a 
 wrong place.^ So, likewise, if an officer sell property on ex- 
 ecution at a place other than that named in the notice of sale, 
 without adjourning to such place or obtaining the consent of 
 the execution debtor, the measure of damagjes in an action of 
 trespass therefor is the value of the property, although the 
 officer has paid over the proceeds of the sale to the execution 
 creditor.^ * 
 
 § 626. It is plain that the trespasser ought not to derive 
 a benefit from his wrongful act, and that he may be allowed 
 to the extent of the value of the property taken, with inter- 
 est, even when the amount exceeds the sum that would be 
 sufficient to indemnify the owner. If goods uninsured should, 
 by force or fraud, be removed from a warehouse, which im- 
 mediately thereafter is consumed by fire, as they must have 
 perished had they remained, it is certain that the owner sus- 
 tains no loss from their removal ; yet in an action against the 
 wrong-doer that fact cannot be given in evidence to bar a 
 recovery, nor can the recovery be for a less sum than the 
 value of the goods when removed. So, if the goods when 
 
 ' Kerbey v. Denby, 2 Gale, 31 ; 1 Mees. & W. 336. 
 
 = Sowell V. Champion, 6 Ad. & E. 407; 2 Nev. & P. 027. 
 
 =* Hall V. Ray, 40 Vt. 576. But see Briggs v. Gleason, 29 lb. 78, contra. 
 
 * In Ilall V. Ray, snpra, it was claimed by the defendant that as the proceeds 
 of the sale were applied on the execution, and the judgment debt was thereby 
 pro tanto satisfied, the damages should be diminished to the spme extent. The 
 difficulty in the way of adopting that view arose from the fact that the sale was 
 illegal. The defendant had no authority to sell and apply the property in the man- 
 ner he did. In order to entitle iiim to apply the property in payment of tliat judg- 
 ment, it was necessary for liim to make a legal sale of it. He was not the plaint- 
 iff's agent. He was the agent and officer of the law proceeding i?i invitum against 
 the plaintiff's right to hold and dispose of his own.
 
 G4G REMEDY FOR WRONGFUL TAKING OF PROPERTY. § 627. 
 
 wrongfully taken were contracted to be sold at a less price 
 than their market value, the owner would be fully indemni- 
 fied by giving him the sum, with interest, which he would 
 have realized had he retained the possession ; yet it cannot 
 be doubted that the market value when the right of action 
 accrued, with interest from that time, should be the measure 
 of damages.^ ^" 
 
 § 627. Kemote or speculative losses should not be con- 
 sidered in estimating the damages. In Boyd v. Brown,^ 
 which was an action of trespass against an officer for wrong- 
 fully attaching a vessel belonging to the plaintiff, the judge 
 instructed the jury that they were to estimate the damages 
 according to the value of the vessel at the time of taking, 
 "and the additional damages sustained, if any." It was held 
 that this remark did not justify the jury in assessing damages 
 for the breaking up of the voyage, and a verdict having been 
 found for the plaintiff for $1,075 67, it was held excessive, 
 and a new trial granted on that ground. In an action for 
 taking corn, the plaintiff, in order to enhance the damages, 
 will not be allowed to prove that by reason of the trespass 
 he was obliged to work as a day laborer to get other com.^ 
 Where oxen are taken, a sum for their services cannot be 
 
 ' Gardner v. Field, 1 Gray, 151; Campbell v. Woodworth, 26 Barb. 648; 
 Pozzoni V. Henderson, 2 E. D. Smith, 146; Trout v. Kennedy, 47 Penn. St. R. 
 
 387; Nightingale v. Scannell, 18 Cal. 315. 
 
 = 17 Pick. 453. 
 
 ' Sims V. Glazener, 14 Ala. 695. 
 
 * In 20 N. Y. 499, the Court of Appeals, in reversing the case of Campbell v. 
 Woodworth, 26 Barb. 648, held that the price the goods brought at auction was 
 proper evidence on the question of damages, to be allowed such weight as the 
 circumstances of the sale should entitle it to. 
 
 In Whitehouse v. Atkinson, 3 Car. & P. 344, which was an action by the 
 assignees of a bankrupt against a sherifi' who had sold the goods on execution. 
 Lord Tenterden, Ch. J., said to the jury: "With respect to the dan^ages, a 
 plaintiff is not bound by the sum at which goods have been sold at auction. 
 But where the plaintiff is an assignee who must have sold the goods if they had 
 come to his hands before any sale by the sheriff, it often happens that the jury 
 consider the sum at which they were actually sold at auction as a fair measure of 
 damages." 
 
 Where in an action for trespass by which the plaintiff's crop was exposed and 
 destroyed by cattle, the jury have given the highest price for which the crop 
 could have been sold, the verdict will not be set aside on the ground of exces- 
 sive damages (Denby v. Hairstou, 1 Hawks. 315).
 
 §§ 628, G29. EXEMPLARY DAMAGES. 647 
 
 added to tlieir value.^ The measure of damages for unlaw- 
 fully seizing and detaining a steamboat is the actual damage, 
 iri'espective of any question of profits or earnings.^ * 
 
 § 628. In case of the destruction of property, if it was of 
 no intrinsic value, and was designed and used to insult and 
 annoy the defendant, the plaintifl:' will only be entitled to re- 
 cover the actual value of the materials destroyed. Where 
 the plaintiff caused a picture which he had painted, and 
 which he called " The Beauty and the Beast," to be placed 
 on exhibition in Pall Mall, and the defendant having cut the 
 picture in pieces, the plaintiff claimed the full value of the 
 picture and compensation for the loss of the exhibition, the 
 defendant was allowed to prove in mitigation of damages 
 that the picture was a scandalous libel upon the defendant's 
 brother and sister. Lord Ellenborough said : " If this pic- 
 ture was a libel upon the persons introduced into it, the law 
 cannot consider it valuable as a picture. Upon an applica- 
 tion to the Lord Chancellor he would have granted an in- 
 junction against its exhibition, and the j^laintiff was both 
 civilly and criminally liable for having exhibited it. The 
 jury, therefore, in assessing the damages, must not consider 
 this as a work of art, but must award the plaintiff merely 
 the value of the canvas and paint which formed its com^^o- 
 nent parts." 
 
 17. Exemplary damages. 
 
 § 629. If the trespass be committed maliciously, and in a 
 Vanton and aggravated manner, and with the design to vex 
 and harass the plaintiff, exemplary damages may be al- 
 lowed.^ t Where the defendant, at the time of committing 
 
 ' Anthony v. Gilbert, 4 Blackf. 348. 
 
 ' Callaway &c. Co. v. Clark, 32 Mo. 305. 
 
 ' Huntlev v. Bacon, 15 Conn. 2G7 ; Linsley v. Bushnell, lb. 335 ; Milburu v. 
 Beach, 14 Mo. 104; McCullouoh v. Walton, 11 Ala. 492; Anthony v. Gilbert, 4 
 Blackf. 348; Wylie v. Smithmerman, 8 Ired. 236. 
 
 * The measure of damages for injury to property is not the cost of restoring 
 it to its original condition where such cost exceeds the value of the actual dam- 
 Age sustained by the owner (Harvey v. Sides &c. Co. 1 Nev. 539). 
 
 t Wliere the injury is proved to have been committed maliciously, wantonly.
 
 648 REMEDY FOR WRONGFUL TAKING OF PROPERTY. § 629. 
 
 the offense, opened a cliest belonging to the plaintiff, and 
 made use of language in relation to the contents of it that 
 wounded her feelings, it was held that this was proper to be 
 considered in assessing the damages. "The abuse to the 
 plaintiff, by searching her chest and indulging in improper 
 remarks, at the time and in the manner mentioned, was an 
 aggravation of the trespass, coetaneously existing with it, 
 and serving to show the malice with which her legal rights 
 were violated." ^ But the absence of any wrongful intent will 
 prevent vindictive damages. Where, in an action of trespass 
 for seizing personal property, the plaintiff's counsel admitted 
 that the defendants had not been influenced by any malicious 
 motives in making the seizure, and that they had not acted 
 therein with any view or design of oppressing or injuring 
 the plaintiff, it was held that such admission precluded the 
 plaintiff from claiming any damages against the defendant 
 by way of punishment or smart money, but that after such, 
 admission the plaintiff could recover only the actual damages 
 sustained.^ ^' In Sinclair v. Tarbox,'^ which was an action of 
 
 to gratify revenge, from a spirit of ill-will and a desire to injure, or with the 
 view of obtaining unlawfully and with a fraudulent intent, a benefit to the de- 
 fendant, by means of the injury to the property of the plaintiff, these circum- 
 stances of aggravation may, with great propriety, be considered in fixing the 
 remuneration to which the plaintiff is entitled" (Huntington, J., in Merrills v. 
 The Tariff Manf. Co. 10 Conn. 384). 
 
 In Kentucky, in trespass for enticing away a slave, it was held that the jury 
 might give smart money (Tyson v. Ewing, 3 J. J. Marsh. 185). 
 
 ' Treat v. Barber, 7 Conn. 274, per Hosmer, Oh. J. 
 
 ^ Hoyt V. Gelston, 13 Johns. 141; affi'd ou error, lb. 561. 
 
 ' 2 N. Hamp. 135. 
 
 * In Heath v. M'Inroy, 6 Johns. 277, it was proved that the defendant took 
 one of the horses from the plaintiff's team, although forbidden by the plaintiff. 
 The defendant justified the taking l)y proving that it was done under au attach- 
 ment at the suit of tlie defendant against a third person, the defendant claiming 
 that the horse was the property of such third person. It appeared that the horse 
 had previously belonged to the third person, who delivered him to the plaintiff' as 
 security for a debt for which au attachment had been issued by the plaintiff 
 against such third person, but no trial had ever taken place. The judge at the 
 circuit having refused to certify that the trespass was wilful and malicious, the 
 plaintiff now moved that he should indorse his certificate on the record. The 
 Supreme Court, in denying the motion, said: "The better construction of the 
 statute seems to be, and such is the construction now given to it in England, 
 that it rests in the discretion of the judge who tries the cause to determine, from 
 the testimony, whether the trespass was wilful and malicious. The court will 
 not, therefore, make any order in this case. If the court were now to give au 
 opinion, we should not be inclined to consider every voluntary trespass per se.
 
 § 629. EXEMPLARY DAMAGES. 640 
 
 trespass for takii>g and carryiug away a sleigh, the defendant 
 relied upon his innocence of wrongful intention. The court 
 remarked that the intent of the party might affect the dam- 
 ages ; and that as the defendant appeared not to have been 
 actuated by any bad motive, nor to have sold or converted 
 the sleigh to his own use, he should pay only the actual in- 
 jury caused by its removal. So where a party caused prop- 
 erty to be seized under an execution issued on a void judg- 
 ment, he not suspecting its invalidity, and acting under the 
 advice of counsel, it was held that a refusal to allow exem- 
 plary damages was proper.^ * 
 
 wilful and malicious. This appears too narrow a construction. The statute 
 seems to have meant, by the words wilful and malicious, some act done mala fide, 
 or with an intention to injure or vex the plaintift* or with a consciousness of 
 violating right." 
 
 ' Selden v. Cashman, 20 Cal. 56. 
 
 * It would seem to be a well settled rule in the English courts, in actions of 
 trover and trespass delonis asportatis, that when the taking is not wilful and the 
 property is not materially injured, and is returned to the real owner, the plaint- 
 iff will, on payment of the costs, proceed at his peril as to future costs (Bucklin 
 v. Beals, 38 Vt. 653). In Hart v. Skinner, 16 Vt. 138, Redfield, J., in deliver- 
 ing the opinion of the court, after reviewing the English authorities and conced- 
 ing their correctness upon principle, said: "It is not very obvious, then, why 
 the court should not have the same discretion here, in allowing or refusing costs, 
 which is exercised by the courts in England. There it is every day's practice to 
 pay money into court (wliich had not been previously tendered) under a rule 
 that the plaintiff accept the same and discontinue his suit, or proceed at his peril 
 as to costs. This sura paid into court is supposed always to cover the costs al- 
 ready accrued, and a specific amount of debt or damage." 
 
 In Bucklin v. Beals, supra, Wilson, J., in commenting upon Hart v. Skinner, 
 said: " Our courts, upon equitable principles, have introduced the practice of 
 allowing payment of the debt and costs already accrued in such cases, to be 
 made into court;' thereby placing the defendant, as to future costs, on the same 
 ground as if he had seasonably made a tender of the same sum. I think the 
 good sense of this practice is no less obvious in its application to some cases of 
 torts; and it would seem, upon principle, that in actions of trover and trespass 
 de lonis asportatis, when the takhig is not wilful and the property is not essen- 
 tially injured, the defendant should be allowed to surrender the property, and to 
 pay the actual damage for the taking and detention of it into court, together 
 with the costs of the action already accrued ; and in case the plaintiff refused to 
 accept the money paid into court, he must proceed at his peril, insomuch that if 
 at the trial he is nonsuited, or if the jury sliall not give him a sum exceeding 
 the money paid into court, he will be obliged to pay the costs of the action. 
 The numerous actions of trover and trespass de bonis asportatis growing out of 
 the sale and transfer of personal property, where the vendor had no title, and 
 where by his false and fraudulent representations, or by some indications of 
 ownership, the vendee was induced to make the purchase, where there was no 
 intentional wrong on the part of the purchaser, and no real damage done by 
 him, require tliat lie should be relieved from the rigor of the rule applicable 
 to cases of wilful and malicious trespass. The rule allowing such surrender 
 of the property, and payment in the discretion of the court, is founded in
 
 C50 REMEDY FOR WRONGFUL TAKING OF PROPERTY. § 629. 
 
 equity, which is ' the correction of that wherein the. law (by reason of its 
 universality) is deficient.' It goes upon the principle that when the defend- 
 ant is ready and willing to pay, and places within the reach of the plaintiff 
 a sum of money equal to the actual debt or damage recoverable by law, and 
 the costs already accrued, the action ought not to be further prosecuted at the 
 expense of the defendant." 
 
 Where the jury find part of the issue for the plaintiff, and. a part for the 
 defendant, a judgment erroneously entered by the plaintiff for himself on the 
 entire issue will be amended. In trespass for breaking and entering a dwelling- 
 house, and seizing and taking away divers goods and chattels there being, the 
 defendant pleaded that the house was not the plaintiff's, nor the goods his 
 goods. At the trial, the contest was as to the right to the goods. The jury 
 found that the house and part of the goods belonged to the plaintiff. The 
 plaintiff having entered the postea for himself, the court ruled that the issue 
 as to the goods was divisible, and ordered the postea to be amended by en- 
 tering it for the defendant as to those goods which were found not to be the 
 property of the plaintiff (Routledge v. Abbot, 3 Nev. & P. 560; 8 Ad. & E. 
 592; 1 W. W. & H. 372).
 
 INDEX.
 
 INDEX TO VOLUME I. 
 
 (The references are to the pages.) 
 
 ABATEMENT, 
 
 plea in, for non-joinder of party, 79. 
 
 for defects in process, or officer's return, 627, note. 
 ACCESSION, 
 
 property in goods by, 363. 
 ACCIDENT, 
 
 unavoidable, exempts from liability, 3, 136, 137. 
 
 meaning of, 3, 4, 136. 
 
 plea of, when sufficient, 3, note. 
 
 liability for, where there is blame, 5. 
 
 when party injured is wrongfully on premises, 5, note. 
 
 resulting from voluntary act, 6, 7. 
 
 when it will excuse a battery, 136, 137, 138. 
 
 burden of proof in cases of, 138. 
 ACQUITTAL, 
 
 of one of several, 96. 
 ACTION, 
 
 definition of trespass as an, 1, 3. 
 
 of trespass, will lie for want of skill and care, 5, 6, note. 
 
 judges and jurymen not liable to, 8. 
 
 will not lie for erroneous exercise of discretion, 8. 
 
 not defeated by lawfulness of occupation, 9, 10. 
 
 party violating statute not entitled to, 10, 11. 
 
 for damages, when no loss can be proved, 13, 13. 
 
 will lie without proof of wrongful intention, 13 ei seq. 
 
 where persons incite or aid trespass, 33 et seq , 
 
 where authority is delegated, 24, 35. 
 
 where a nuisance is allowed to be created by another, 24, note. 
 
 bad motives not a ground of, 18, 19, note. 
 
 for consequential injury, 19 ei seq. 
 
 will lie although other causes contributed to result, 81, 22. 
 
 may be maintained for a lawful act, 21, note. 
 
 will not lie when cause of injury remote, 33. 
 
 for injury arising subsequent to wrongful act, 23. 
 
 what essential to maintain, 31. 
 
 when a party has a choice of remedies, 33. 
 
 distinction between trespass and trespass on the case, 31, 33, note. 
 
 invasions of right entitling party to, 33, 34.
 
 G54 INDEX. 
 
 ACTIOlii— continued. 
 
 cause of, not a debt, 34, note. 
 
 for wrong committed by married woman, 38, 39, 40. 
 
 of trespass, may be maintained against minors, 41, note. 
 
 may be broiiglit against sheriff for acts of liis deputy, 51. 
 
 against corporations, 52, 53., 
 
 by, and against executors, 54. 
 
 in the case of joint wrong-doers, 61 et seq., 71, 72, 7iote. 
 
 when recovery a bar to, 62, 62 and 63, note. 
 
 cannot be maintained against fellow-trespasser, 67, 7iote. 
 
 effect of embracing distinct causes of, in same count, 76, 7iote. 
 
 may be brought by State, 80, note. 
 
 cross action in assault and battery, 133, 134. 
 
 by trespasser against owner of land, 145, 146. 
 
 for seduction of daughter, 180,181, 182. 
 
 in New York, in case of rape, 182. 
 
 for assault and battery, will not lie by wife against husband, 189. 
 
 between husband and wife, statutes of New York, 189, 190, note. 
 
 where brought for assault and battery, 195 et seq. 
 
 where personal injury results in death, 200. 
 
 for injury to person of maiTied woman, 200, 201, 202. 
 
 distinct causes of, in assault and battery cannot be united, 203, 204. 
 
 damages accruing after commencement of, 258. 
 
 against several, barred bv recoverv against one, in assault and battery. 
 263, note. 
 
 waiver of right of, 326, 327. 
 
 of false imprisonment, nature of, 328, 329. 
 
 how brought against sheriff for wrong of deputy, 491, 492, note. 
 
 general rule as to who may maintain in trespass to personal property, 
 
 507 et seq. 
 where goods are taken from officer, 528, 529, 530. 
 where goods are taken from a servant, 530, 531. 
 in case of chattels taken from officer of corporation, 531. 
 where goods taken belonged to a person deceased, 532, 533, 534. 
 where property is mortgaged, 534 et seq. 
 
 where the owner has parted with his right of possession, 547, 548. 
 in case of bailment, 548 et seq. 
 
 where there has been a conditional sale, 554, 555, 556. 
 in case of agency, 557 et seq. 
 by tenants in common, 561 et seq. 
 
 where possession of goods is obtained by fraud, 567 et seq, 
 of trespass to personal property, ground of, 585, 586, 587. 
 will lie against infant for injuring personal property, 587. 
 of replevin, effect of, as a bar, 598, 599, 600. 
 
 of trover, conflict of authority as to effect of judgment in, 600, 601. 
 proceeding for one of two injuries, not a bar, 602. See Trespass. 
 ADJOURNMENT, 
 
 of sale by request of debtor, officer not liable for, 467, 468. 
 insufficient notice of sale not cured by, 468, note.
 
 INDEX. 655 
 
 ADMISSIONS AND DECLARATIONS, 
 
 ot plaintiff as to personal injury, 230, 331. 
 
 of party that he intends to commit assault and battery, 231, 233. 
 
 silence tantamount to, 233. 
 
 one denial sufficient, 233, 334. 
 
 of plaintiff respecting defendant, 235. 
 
 of third jjerson in action for false imiirisonment, 346, note. 
 
 of one of two defendants, 346, note. 
 
 of magistrate, 346, note. 
 
 of vendor of goods, 631, note. See Evidence. 
 AFFIDAVIT, 
 
 liability of party when warrant issued upon, insufficient, 373, 273. 
 
 right of party to have it filed, 273. 
 
 need not be, to justify arrest by ofiicer, 304, note. 
 
 though defective, a good defense when, 435, note. 
 AFFRAY, 
 
 right of private person to restrain, 268. 
 
 plea justifying arrest on account of, 332, 333. 
 AGENT. See Principal and Agent. 
 AGISTER, 
 
 may maintain action, 552, 553. 
 AGREEMENT, 
 
 property made chattels by, 368, 369. See Contract. 
 AIDER AND ABETTOR, 
 
 Avho deemed, 67. 
 ALMSHOUSE, 
 
 abuse by keeper of, 187, 188, 189. 
 AMENDMENT, 
 
 after verdict, 113, 114. 
 
 of plea in assault and battery, 315. 
 
 upon what question of, depends, 594. 
 
 when exceptions will lie to refusal of, 595, note. 
 
 of judgment erroneously entsred, 650, note. 
 AMUSEMENT. See Public Amusement. 
 ANCIENT LAW, 
 
 of distress, exempted tools from seizure, 411. 
 ANCIENT WINDOW, 
 
 that I3arty was obstructing, no excuse for a battery, 142, note. 
 ANBIALS, 
 
 agister may maintain action for, 552, 553. See Wild Animals. 
 ANSWER. See Plea. 
 APPRAISERS, 
 
 certificate of, admissible in evidence, 91, note. 
 ARBITRATION, 
 
 when submission to, a bar to other remedy, 86. 
 ARREST, 
 
 for tort of wife, 39, note. 
 
 by private person when lawful, 267, 268, 269, 270. 
 
 for purpose of abducting from State, 370.
 
 656 INDEX. 
 
 AR'REST—conti7iued. 
 
 private person causing, 271 et seq. 
 
 rule as to false imprisonment in relation to the process, 277, 278. 
 
 causing arrest for felony without process, 280, 281. 
 
 malicious, by judgment creditor, 286, 287. 
 
 right of officer to detain person on suspicion of felony, 290, 291. 
 
 of innocent party by officer without warrant, 2!)2. 
 
 for assault committed in view of officer, 292, 293. 
 
 when breach of by-law ground for, 293, note. 
 
 without warrant, duty of officer in making, 293, 294. 
 
 made on Sunday, constitutes false imprisonment, 295, note. 
 
 by officer in case of escape, 296. 
 
 requisites of warrant of, 297 et seq. 
 
 duty of officer to communicate substance of warrant, 301, 303, 
 
 by officer under execution after return day, 304, vote. 
 
 officer by departing from order of, becomes a trespasser, 304, note. 
 
 tax collector not required first to search for property in New Hampshii'e, 
 805, note. 
 
 officer may make, notwithstanding he is shown the party's discharge as 
 an insolvent, 307, 308. 
 
 of privileged person, 308, 309. 
 
 of wrong person, 309. 
 
 by officer after receiving notice from attorney forbidding, 310. 
 
 what constitutes, 312, 313, 314. 
 
 without warrant, plea justifying on suspicion, 330, 331, 332. 
 
 without warrant, plea justifying on account of affray, 332, 333, 
 
 under process, plea justifying, 334, 335, 336. 
 
 officer justifying, need only prove process, 344, 345. 
 
 by private person for felony, how justified, 347, note. 
 
 allowed in New York, for injury of property, 587, 588, note. 
 ASSAULT AND BATTERY, 
 
 meaning of assault, 121. 
 
 how defined by statute of Maine, 121, note. 
 
 acts constituting assault, 122. 
 
 by pointing gun or pistol at another, 122, 123. 
 
 abusive language, 124. 
 
 battery defined, 124. 
 
 cannot be conviction for assault without battery, 124, note. 
 
 acts constituting a battery, 124, 125, 126. 
 
 when accident will excuse, 126, 127, 128. 
 
 self-defense, 128 ei seg'. 
 
 person attacked not bound to retreat, 130, note, 143. 
 
 lawful to kill assailant, when, 130, 143. 
 
 when injury of bystander justifiable, 131, 132. 
 
 justifiable in defense of property, 135 et seq. 
 
 taking goods from a wrong-doer, 136, 137, 146 et seq. 
 
 in preventing owner from taking his property, 137, 138. 
 
 in resisting unlawful attachment, 138, 139.
 
 INDEX. 657 
 
 ASSAULT AND BXTTERY-^-contlnued. 
 
 in self-defense, or defense of property, must not exceed prevention, 129, 
 
 141. 
 not a justification, that party was obstructing ancient window, 142, note. 
 no defense that party kept a disorderly house, 142, note. 
 of trespasser when actionable, 145, 146. 
 in retaking land, 149, 150. 
 of person in possession of land, after his title to occupy has ended, 150, 
 
 151. 
 by tenant in common, 151, note. 
 when railroad company liable, 163, 163, 165, 166. 
 of child at sea, libel for, 187, note. 
 will not lie by woman against her husband, 189. 
 beating horse attached to wagon, is not, 190, Tiote. 
 aiding or encouraging, 193, 194. 
 place of trial, 195 et seq. 
 holding to bail, 200. 
 parties to action, 200, 201, 202. 
 declaration, 203 et seq. 
 plea, 206 et seq. 
 
 allegations of aggravated, how regarded, 214. 
 replication, 216 et seq. 
 right to begin, 219. 
 burden of proof, 220. 
 
 proof must correspond with pleadings, 220 et seq. 
 proof of time, 224. 
 evidence as to possession, 224 et seq. 
 when new assignment necessary, 216, note, 217, 218, 219. 
 record of conviction, when evidence, 224. 
 proof of malice, 228, 229, 230. 
 proof of violence by third person, 228, note. 
 admissions and declarations, 230 et seq. 
 proof of provocation, 235 et seq. 
 proof of mitigating circumstances, 240, 241, 242. 
 evidence of excessive punishment of pupil, 230, iiote. 
 opinion of witness not admissible, 230, note. 
 evidence as to character, 243, 244, 245. 
 proof of consequences, 246, 247. 
 evidence as to pecuniary condition of party, 247. 
 damages in general, 248, 249. 
 damages for wounded feeling, 249, 250, 251. 
 malicious intent as affecting the damages, 251 et seq. 
 damages for assault upon child or servant, 255, 256, 257. 
 damages after conviction for public offense, 257. 
 damages accruing after commencement of action, 258. 
 inadequate or excessive damages, 259. 
 costs, 260, 261. 
 verdict, 261, 262, 263. • 
 
 Vol. I.— 42
 
 C58 115 DEX. 
 
 ASSAULT AND BATTBHY—catrtinued. 
 
 action against several, barred by recovery against one, 263, note. 
 ari-est by officer for, without warrant, 292, 293. 
 by officer in retaking goods which are exempt, 402. 
 ASSESSORS, 
 
 of taxes, liability of, in Massachusetts, 492 et seq. 
 protection accorded to, in New York, 495. 
 not liable for mistakes, 498, note. 
 ASSIGNMENT, 
 
 of claim for tort, 37. 
 
 may be otherwise good, though void as to creditors, 527, 528. 
 conditional vendee may make, 555, 556. 
 ASSIGNOR AND ASSIGNEE, 
 
 action when jwopertv of bankrupt has become vested in assignees, 508, 
 
 509. 
 right of jaerson to be treated as assignee of mortgage, 539, 540. 
 ATTACHMENT, 
 
 unlawful of goods, right to resist, 138, 139, 140, 141. 
 
 causing void process of, to be sued out and levied, 399, 400. 
 
 rolling stock of railroad liable to, 413, 414. 
 
 derivation of word, 417. 
 
 object of, 417. 
 
 what essential to constitute, 417, 418, 419. 
 
 duty of officer in Vermont, 419, 420, 7iote. 
 
 goods need not be secured against depredators, 420. 
 
 not dissolved by removal of property into another State, 424. 
 
 right to, depends upon law of place of property, 425, 426. 
 
 duty of officer in executing, 443, 444, 445. 
 
 will not excuse officer that property was taken from him, 448, 7iote. 
 
 hay and grain not in general removed, 444, note. 
 
 dissolved by delivery of property to owner, 444. 
 
 of goods held in common, 458. 
 
 of partnership property, 4G0. 461. 
 
 officer has no right to occupy another's building, 464. 
 
 may be justified without showing regular subsequent jiroceediugs, 471. 
 
 officer bound to act in a proper and reasonable manner, 472, 473. 
 
 of proceeds of sale, statute of Maine,- 472, note. 
 
 excessive, proof in action for, 472, 473, 7iote. 
 
 goods held under, may be again attached, 510. 
 
 against mortgagor, liability of officer for removing goods under, 537. 
 
 property left with mortgagor liable to, 544, 545, 7iote. 
 
 qualified property in chattels liable to, 549, iwte. 
 
 question as to fraud in, for jury, 581, 582. 
 
 by owner, -will not prevent his showing that the property is his, 622, 623. 
 ATTORNEY, 
 
 liability of jjarty for acts of, 24, 25. 
 
 liable with client, to false imprisonment, 286. 
 
 notifying officer not to make arrest, efi"ect of, 310. 
 
 I}laintifl''s fee as, cannot be included in damages, 642.
 
 INDEX. G59 
 
 AUCTIONEER, 
 
 may maintain action for injury of goods, 554. 
 AUTHORITY, 
 
 of statute, rule as to justification under, 55 et seq, 
 
 how pleaded, 85. 
 
 question of excess of, for jury, 143, note. 
 
 BAIL, 
 
 in actions for assault and battery, 200. 
 
 may take, detain, or surrender his principal, 268, note. 
 
 when tender and refusal of, should be replied to specially, 339, note. 
 BAILEE, 
 
 excused when goods are taken from him, 386. 
 
 cannot delegate trust, 386, note. 
 
 of mortgagee, justification by officer for takintr goods from, 539, note. 
 
 may maintain action for property taken from him, 548, 549. 
 
 action when he has not absolute right to possession, 549, note. 
 
 owner of goods taken from bailee cannot maintain action, 550, 551. 
 
 must show rightful possession, 569, 570. 
 
 becomes keeper for o-wner by operation of law, 578, 579. 
 
 not liable to trespass in North Carolina unless he has destroyed 23rop- 
 erty, 587, note. 
 
 damages in action by, against owner, 641. 
 
 damages in suit by, against sti'anger, 041, 042. 
 BANKRUPT, 
 
 action when property has become vested in assignees, 508, 509. 
 BATTERY. See Assault and Batteky. 
 BEES, 
 
 may be subject of property, 357. 
 
 when unreclaimed, belong to first occupant, 357. 
 
 belong to owner of hive as long as he can keep them in sight, 357, 358. 
 
 rule where they occupy a tree on another's land, 358. 
 
 ownership in, ratione soli, 358, note. 
 
 property in, by the civil law, 358, note. 
 BILL OF SALE, 
 
 purchaser m.^y maintain action without delivery, 525. 
 BLASTING, 
 
 injury caused by, 35. 
 BOND, 
 
 wh(-n the giving of must be alleged, 610. 
 BORROWER, 
 
 may ratify or repudiate exchange by lender, 523, 524. 
 BREACH OF THE PEACE, 
 
 words or acts of provocation may have the effect of, 2. 
 BREAKING AND ENTERING, 
 
 unlawful, may be resi-t id. 140. 
 BUILDING, 
 
 when deeme.l personal property, 377, 378, 379. 
 
 right of mortgagee of land to, 379, 380.
 
 660 LNDEX. 
 
 BURDEN OF PROOF, 
 
 in cases of accident, 138. 
 in assault and battery, 220. 
 when on defendant, in false imprisonment, 344. 
 BY-LAW, 
 
 power to arrest for breach of, must be expressly given by statute, 293, 
 
 note. 
 cannot impose unreasonable restraints, 293, note, 
 may be good in part, and bad in part, 293, note. 
 
 CANAL-BOAT, 
 
 action for injury of, 34. 
 CARRIER. See Common Carrier. 
 CERTIFICATE, 
 
 of officer's doings must contain all the facts, 318, 319. 
 CERTIORARI, 
 
 powers of justices of the peace superseded by, 58, note. 
 CHAMPERTY. See Maintenance. 
 CHARACTER, 
 
 evidence as to, in assault and battery, 243, 244, 245. 
 
 of plaintiif, not admissible in false imprisonment, 350, note. 
 CHATTELS. See Goods. 
 CHILD. See Parent ant> Child. 
 CHURCH, 
 
 right of sexton to eject undertaker from, 160, note. 
 See Religious Meeting. 
 CIRCUMSTANCES. See Evidence. 
 CIVIL LAW, 
 
 relative to fixtures, 372, note. 
 
 property in bees under, 358, note. 
 
 rule of, where goods are altered, 359. 
 
 rule of, where goods are intermingled, 364. , 
 
 set aside contract obtained by force or fear, 631, note. 
 CLERK, 
 
 has no authority to detain and search another, 285. 
 CODE, 
 
 of New York relative to misjoinder of plaintiflTs, 79, 80. 
 assignment of claim for tort under, 37. 
 relative to liability of husband for tort of wife, 39, note. 
 COLLECTOR, 
 
 liable for unauthorized seizure of goods for taxes, 499, 501. 
 
 protected when an officer de facto, 500. 
 
 must act strictly within statute, 500, 504, 505, note. 
 
 how far protected by warrant, 502, 503, 504. 
 
 of internal revenue, not liable for mistaken seizure, 502, note. 
 
 effect of purchasing at his own sale, 505. 
 
 liability where owner of property sold buys it, 505, 506. 
 
 sentence of restitution is proof of illegal seizure, 615. ' 
 
 See Taxes.
 
 INDEX. G61 
 
 COMMITMENT, 
 
 must show grounds of, 300, 301. 
 
 must state the facts which justify it, 318, 319. 
 
 magistrate liable for consequences of, 826. 
 COMMON CARKIER, 
 
 action against, founded in tort, 383, note. 
 
 may maintain action for injury of goods, 553, 554. 
 
 forfeits his lien by failing to fulfil contract, 561, 7iote. 
 COMMON LAW, 
 
 doctrine of, as to contribution, 28. 
 
 non-joinder of party plaintiff, how objected to, at, 79. 
 
 liability of husband at, for torts of wife, 38. 
 
 doctrine of, that torts die with the person innovated upon, 54. 
 
 relative to agreeing to a trespass after its commission, 66, note. 
 
 objection for non-joinder of party, how made at, 79. 
 
 rule of, as to pleading a justification, 83, 84. 
 
 Ijleadings and evidence at, 84, note. 
 
 rule of, as to allegation of time, 92, note. 
 
 justifies a battery in defense of property, 135. 
 
 right of nation to give redress for personal injury at, 195. 
 
 when courts of, have cognizance of marine trespasses, 197, 198. 
 
 remedy for seduction at, 181. 
 
 damages at, for personal injury of wife, 200, 201. 
 
 rule of, as to property in altered goods, 360, 361, 363. 
 
 rule of, in relation to the intermingling of goods, 364, 365. 
 
 chattels in possession of debtor, cannot be taken at, 410, 411. 
 
 goods, how bound by levy at, 423, note. 
 
 personal property vests in officer at, when, 443. 
 
 right of husband to wife's personal property at, 453. 
 
 did not permit immediate sale of distress, 504. 
 
 mortgage of future acquired chattels at, 541, 543. 
 
 right of lien at, 561, note. 
 
 sale in market overt at, 568. note. 
 
 right to abate nuisance at, 598, note. 
 COMMON SCHOOL DISTRICT. 
 
 See School District. 
 COMPLAINT, 
 
 party making, not liable for false imprisonment, 275, 376, 377. 
 See Declakation. 
 CONDITIONAL SALE, 
 
 action in case of, 554, 555. 
 
 vendee may assign property, 555, 556. 
 
 right of seller of goods to repossess himself of them, 403, 556. 
 CONDUCTOR, 
 
 of omnibus, abuse by, 43. 
 
 wilful detention of train by, 43. 
 
 See Master and Servant. 
 CONFESSION OF JUDGMENT, 
 
 By one of two joint defendants, 67, note.
 
 602 INDEX. 
 
 CONFUSION, 
 
 effect, where goods canuot be distinguished, 303, 3l>4. 
 
 rule of the coramou law, where wilful, 364, 365. 
 
 civil law rule, 364. 
 
 rule in case of consent, accident, or negligence, 365. 
 
 sale in case of, 365, 366. 
 CONSEQUENTIAL INJURY, 
 
 action for, 19 e^ seq. 
 
 party entitled to redress, though act lawful, 21, note. 
 
 when remote, not a ground of action, 22. 
 
 arising subsequent to wrongful act, 22. 
 CONSIGNEE, 
 
 liability of sheriff for seizing goods in custody of, 548, 549. 
 CONTRACT, 
 
 obtained by duress, set aside by civil law, 631, note. 
 
 relieved against in equity, 031, note. 
 
 carrier failing to fulfil, forfeits his lien, 561, note. 
 CONTRIBUTION, 
 
 cannot be claimed by Avrong-doer, 28, 67, note. 
 CORPORAL PUNISHMENT, 
 
 by master of vessel, 187. 
 CORPORATION, 
 
 secret intention of members of, not a ground of action, 19, note. 
 ' action of trespass may be maintained against, 52, 53. 
 
 acts of, strictly construed, 50. 
 
 liable for acts of its servants, 43, 44, note.^ 162, 103, 165, 166. 
 
 president of, not in general liable, 179, 180. 
 
 levy upon projierty of, by wrong name not trespass, 439, note. 
 
 acti(m in the case of the wrongful taking of goods, 531. 
 
 town need not be alleged as, 610, 611. 
 COSTS, 
 
 "where there is a settlement of one of two actions, 70, 71, note. 
 
 where separate actions are brought against several, 109. 
 
 in New Hampshire, in actions of review, 109, note. 
 
 in action for assault and battery, 260, 201. 
 
 when plaintiff will proceed at his peril as to, 649, note. 
 COURT, 
 
 in England, does not favor verdict where there is no injuiy, 13, note. 
 
 duty to instruct jury to find for defendant, 101. 
 
 instruction of, may be revised though not objected to, 118. 
 CREDIT, 
 
 goods sold upon, cannot be retaken, 405. 
 
 when loss of, admissible in evidence, 620. 
 CROPS, 
 
 cannot be reserved by parol, 375, note. 
 
 declaration when tortiously cut, 382, note. 
 
 DAMAGES, 
 
 action for, though no loss can be proved, 12, 13.
 
 INDEX. 663 
 
 D AM A-GES— continued. 
 
 not allowed in Engjlaud where there is no injury, 13, note. 
 
 when misunderstanding will go in reduction of, 14, note. 
 
 considered, rather than intent or malice, 15. 
 
 cannot be recovered where cause of injurj^ remote, 22. 
 
 for injury subsequent to wrongful act, 32. 
 
 when execution stayed against, 63, note. 
 
 settlement of claim for, 68 et seq. 
 
 where there are two actions, 69, 70. 
 
 when reduced p'o taiito, 72. 
 
 how alleged in declaration, 78, 79. 
 
 special, when admissible in evidence, 91. 
 
 insult and injury of wife of plaintiif not a ground for, 91, note. 
 
 certificate of appraisers as to, may be given in evidence, 91, 7iote. 
 
 need not be assessed on all the counts, 99, note. 
 
 release of codefendant admissible in mitigation, 100. 
 
 instruction not to find, error, 101, 102. 
 
 for involuntary trespass, 102. 
 
 prospective, 102. 
 
 when special may be proved, 103. 
 
 remote not allowed, 103. 
 
 not confined to pecuniary loss, 103, 104. 
 
 in action against several, 105 et seq. 
 
 expenses of suit, 104, 105. 
 
 what may be done, when separately assessed in joint action, 106. 
 
 new trial on account of, 117, 118, 119. 
 
 who entitled to, in case of personal injury of wife, 200, 201, 202. 
 
 declarations of plaintifi" in mitigation of, 235, 236 et seq. 
 
 former conduct of plaintiff will not mitigate, 239, 240. 
 
 in general, in assault and battery, 248, 249. 
 
 must be du-ect result of act in assault and battery, 248, note. 
 
 from wounded feeling, in assault and battery, 249, 250, 251. 
 
 afi'ected by malicious intent, 251 et seq. 
 
 for assault upon child or servant, 255, 256, 257. 
 
 after conviction for public offense, 257. 
 
 accruing after commencement of action, 258. 
 
 inadequate or excessive, in assault and battery, 259. 
 
 exemplary, in false imprisonment, 350, 351, 352. 
 
 in false imprisonment which was not malicious, 351. 
 
 excessive, in false imprisonment, where there was ground of suspicion, 
 
 351, note. 
 in false imprisonment, plaintiff entitled to what he has been compelled 
 
 to pay, 352, 353. 
 where a sum has been accepted in satisfaction, 353, 354. 
 remote in false imprisonment, not recoverable, 353, 7io(e. 
 in joint action for false imprisonment, 354. 
 must be excessive to be ground for reversal in false imprisonment, 354, 
 
 note. 
 mitigated by return of goods which are accepted, 406.
 
 664 INDEX. 
 
 DAMAGES— f(?« tinucd. 
 
 rule of, in action by judgment creditor, 530, ?zoi?f. 
 
 what mortgagee entitled to, in action against officer, 535, 536, note. 
 
 lor taking property, evidence in mitigation, 632, 633, 634. 
 
 in trespass to personal property, to be given for whole injury, 636. 
 
 nominal, when defendant is defaulted, 636, note. 
 
 debt cannot be defalked against, 636, 637, note. 
 
 judgment in attachment suit cannot be deducted, 637, note. 
 
 for trespass to personal property when in discretion of jui-y, 637. 
 
 when rule of, one of compensation merely, 687, note. 
 
 in general, for the mere taking of goods, 637, 638. 
 
 when value of goods not the measure of, 638, 639, 640, note. 
 
 where officer has used goods. 639, 640. 
 
 in action by married woman for her property, 639, note. 
 
 exercise of ownership in mitigation of, 640. 
 
 in action by moftgagee against officer, 640, 641. 
 
 where goods are deposited with pawnbroker, 641, 
 
 where property is seized by mortgagee before forfeiture, 641. 
 
 when action is by bailee against owner, 641. 
 
 in suit by bailee against stranger, 641, 642. 
 
 cannot include plaintiff's fee as attorney, 642. 
 
 in action against sheriff for seizing goods in transit, 641, note. 
 
 rule of, in New York where property is detained, 643, 643, note. 
 
 may be given for aggravations as well as for yalue of property, 642, 643, 
 644. 
 
 where the seizure of goods is with an abuse of authority, 645. 
 
 owner entitled to value although more than an indemnity, 645, 646. 
 
 remote or speculative, not proper, 646, 647. 
 
 when only for value of materials destroyed, 647. 
 
 exemplary, in trespass to personal property, 647, 648, 649. 
 DAUGHTER. See Parent and Child. 
 DEBT, 
 
 cannot be defalked against damages, 636, 637, note. 
 
 cause of action in trespass, is not, 34, note. 
 DEBTOR AND CREDITOR, 
 
 presumption of fraud from continued possession of vendor, 574, 575. 
 
 effect of return to owner of goods sold to creditor, 576, 577. 
 
 minor entitled to earnings as against creditors of father, 580, note. 
 
 judgment best evidence of the relation of, 626, note. 
 DECLARATION, 
 
 principal act, to be clearly alleged, 76. 
 
 general description not remedied by special finding, 76. 
 
 eflfect of embracing distinct causes of action in one count, 76, note. 
 
 description of place, 77. 
 
 allegation of time, 77, 78, 92, note. 
 
 waiver of objection to, 76, note, 78, note. 
 
 allegation of damage, 78, 79. 
 
 non-joinder of party, how objected to, 79. 
 
 nuejojuder of plaictiflf, remedy under New York Code, 79, 80.
 
 INDEX. 665 
 
 DECLARATION— cowiJjm/etZ. 
 
 whole declaration need not be proved, 91. 
 
 for seduction, cured by verdict, 182, note. 
 
 in assault and battery, 203 et seq. 
 
 technical errors in, disregarded, 206, note. 
 
 allegations of aggravated assault and battery, 214. 
 
 proof of substance of, in assault and battery sufficient, 220, 221. 
 
 where there has been an arrest for a tax wrongfully assessed, 329. 
 
 for false imprisonment, need not allege malice, 329. 
 
 a claim for special damage in false imprisonment, must be averred, 829, 
 380. 
 
 when a growing crop is tortiously cut, 382, 7iote. 
 
 in trespass to personal property, 588 et seq. 
 
 must be averment of plaintiflf's title, 591. 
 
 substantial averment of property in plaintiff sufficient, 591, 592. 
 
 need not allege that goods were in plaintiff 's possession, 592. 
 
 where plaintiff sets up title under dormant execution, 592. 
 
 count for injuring property cannot be joined to count for injuring 
 health, 592. 
 
 when it will entitle to recovery for successive trespasses, 598. 
 
 upon what question amendment of depends, 594. 
 
 when excejitions will lie to refusal of amendment, 595, 7nde. 
 DECLARATIONS. See Admissions and Declarations. 
 DH FACTO, 
 
 officer, validity of acts of, 488, 489. 
 DEFAULT, 
 
 judgment by, in action against several, 108, 114. 
 DEFENSE, 
 
 suppositions not matters of, 14. 
 
 law of State in rebellion, is not, 25, note. 
 
 of property, will justify a battery, 135 et seq. 
 
 of property, must not exceed prevention, 141, 142. 
 
 not a justification of battery that party was obstructing ancient window 
 142, note. 
 
 no excuse for a battery that party kept a disorderly house, 142, 7iote. 
 
 of property, not lawful without right of possession, 143, 144. 
 
 is not, that wrong was committed by another, 595, 596, 597, 598. 
 DEFINITION, 
 
 of trespass as a wrong and a remedy, 1, 2. 
 
 of unavoidable accident, 3, 4. 
 DEMURRER, 
 
 where the trespass is laid by way of recital only, 76. 
 
 objection not made by, is waived, 76, note. 
 DEPOT, 
 
 is not a public highway, 177. 
 
 right of traveler to occupy, 177, 178, 179. 
 
 license to remain at, revocable, 179. 
 DEPUTY SHERIFF, 
 
 action by, against sheriff, 490, note.
 
 066 INDEX. 
 
 DEPUTY SEBHIFF— continued. 
 
 when jointly liable with sheriff, 491, 492. 
 
 judgment in favor of, is evidence for sheriff, 491, note. 
 
 may maintain action for property taken from him, 529, tiote. 
 See Sheriff. 
 DISCRETION, 
 
 erroneous exercise of, not a ground of liability, 8. 
 DISORDERLY HOUSE, 
 
 the keeping of, will not excuse a battery, 142, 7iote. 
 DISTRESS, 
 
 ancient law of, exempted tools from seizure, 411. 
 
 immediate sals of, not pennitted, 504. 
 
 when justified under the general issue, 600. 
 DURESS, 
 
 evidence under plea of, 630, 631. 
 
 civil law set aside contract obtained by, 631, 7iote. 
 DWELLING-HOUSE, 
 
 forcible entry into, may be resisted, 140. 
 
 EJECTION. See Forcible Removal. 
 ELECTION, 
 
 as. to time, in declaration, 78, note. 
 
 in case of levy and sale on different days, 593, 7iote. 
 ENGLISH COURTS, 
 
 do not favor verdicts where there is no injury, 13, note. 
 ERROR, 
 
 by instructing to find for defendant if no damage, 101, 102. 
 
 cannot be taken advantage of by defendant if in his favor, 105, note. 
 
 mistake in assessment of damage, how cured, 106, 107, note. 
 
 by instructing jury to acquit, on motion of plaintiff, 112. 
 
 proceeding valid until reversed on, 115. 
 ESCAPE, 
 
 arrest by officer in case of, 296. 
 ESTOPPEL, 
 
 party claiming, must have relied upon other party, 623, 624. 
 EVIDENCE, 
 
 of language of defendant, 2. 
 
 of necessity for act, 2. 
 
 of intention, 17. 
 
 matters that may not be proved under the general issue, 83, 84, note. 
 
 where a notice accompanies the general issue, 84, note. 
 
 under plea of not guilty, and notice of former recovery, 84, 85, note. 
 
 where there are affirmative pleas, 90. 
 
 in case of a justification and new assignment, 90. 
 
 whole declaration need not in general be proved, 91, 
 
 of circumstances, when admissible, 91. 
 
 of special damage, 91. 
 
 opinions of witnesses not admissible, 91. 
 
 certificate of appraisers, 91, 7iote.
 
 INDEX. 667 
 
 EVIDENCE— coM^/« ueO. 
 
 time need not be proved, 91, 9-2, 617. 
 
 of laws of State, 93, 03. 
 
 in case of joint defendants, 93, 94. 
 
 of judgment rendered in relation to the same acts, 97, 99. 
 
 what facts deemed to be in issue, 97, 98, note. 
 
 of release of codefendant, 100. 
 
 cumulative, in discretion of court, 100. 
 
 same testimony may be waived and objected to, 101. 
 
 sufficiency of, for jury, 101. 
 
 duty of court to instruct jury as to, 101. 
 
 new trial on account of, 116, 117. 
 
 when not admissible in assault and battery without new assignment, 
 
 21%, note, 217, 318. 
 burden of, in assault and battery, 230. 
 proof of substance of declaration in assault and battery sufficient, 230, 
 
 231. 
 one of several counts in assault and battery only need be proved, 331. 
 when proof of other assaults not allowed, 231, 223. 
 under plea of son assault demesne, 223. 
 where a series of personal injuries are charged, 223. 
 record of conviction of assault and battery, 224. 
 time of assault, 334. 
 
 possession of place of assault, 224, 225, 226, 227. 
 proof of malice in assault and battery, 328, 229, 230. 
 violence by third person, 338, note. 
 
 admissions and declarations in assault and battery, 330 et seq. 
 provocation in assault and battery, 235 et seq. 
 circumstances mitigating assault, 240, 241, 243. 
 opinion of witness not admissible, 230, note. 
 of excessive punishment of pupil by master, 230, note. 
 that plaintiff attempted to deceive jury, 233, note. f 
 
 proof of consent in action for assault on female, 243. 
 proof of character in assault and battery, 248, 244, 245. 
 consequences of act in assault and battery, 246, 247. 
 pecuniary condition of party, 247. 
 
 expenses of litigation in action agaiust railroad company, 346, note. 
 what must be proved to excuse giving another in custody, 384, 285. 
 officer's return, how far admissible in his favor, 319. 
 in false imprisonment, facts and circumstances must be proved, 341 , 
 in action for false imprisonment, violence need not be proved, 342. 
 proof of animus of defendant, in false imprisonment proper, 343. 
 when burden of justifying imprisonment on defendiint, 344. 
 sufficient for officer justifying arrest, to prove process, 344, 345. 
 where there is a justification under an execution, proof as to process 
 
 not proper, 345, 346. 
 of right of wd.y, to show character of plaintiff's act, 341, note. 
 in action against two, proof of verdict in favor of onenot proper, S'i4:,note. 
 acts and declarations of third person in false imprisonment, 346, note. 
 admissions of one of two defendants in false imprisonment, 346, no te.
 
 068 IXDEX. 
 
 EVIDENCE— co)itinued. 
 
 of language of magistrate, 34G, note. 
 
 where several are charged with false imprisonment, 346. 
 
 probable cause in action for giving into custody, 346, 347. 
 
 in mitigation, not confined to time of alleged wrong, 349, 350. 
 
 prior conviction of third party, not admissible, 350, note. 
 
 if striken out, will cure improper admission, 350, note. 
 
 in action for excessive attachment, 472, 473, note. 
 
 in action against sheriff, judgment in favor of deputy, 491, note. 
 
 of possession of goods, 614, 615. 
 
 of wrongful taking, 615, 616. 
 
 of value of property taken, 617. 
 
 of circumstances, in action for taking goods, 017, 618. 
 
 of motive, in action for taking and carrying away goods, 618, 619. 
 
 presumptions, in trespass to personal property, 630 et seq. 
 
 in justification of taking personal propQrty, 624 et seq. 
 
 loss of credit, when admissible, 620. 
 
 acts and declarations of vendor of goods, 621, note. 
 
 where there is a justification under process, 625, 626. 
 
 officer's return, 627, 628, 629, 630. 
 
 under plea of duress, 630, 631. 
 
 in justification, must conform to plea, 631. 
 
 defendant need not disprove taking when omitted by plaintiff, 632. 
 
 in mitigation of damages for taking personal property, 632, 633, 634. 
 
 objections to, to be made at trial, 035. 
 EXCEPTIONS, 
 
 instruction may be revised upon, though not objected to, 116. 
 
 when they will lie to refusal of amendment, 595, note. 
 EXCUSE. See Justification. 
 EXECUTION, 
 
 where two actions are brought, 63, note. 
 
 not rendered void by misnomer of town, 300, note. 
 
 exempt goods taken on, may be retaken, 402. 
 
 what necessary to constitute a levy, 420, 421. 
 
 constructive levy in case of second execution, 421. 
 
 levy upon joint efl'ects, 422. 
 
 when levy extends constructively to subsequently acquired goods, 423, 
 423. 
 
 goods, how bound by levy at common law, 423, note. 
 
 leaving goods with debtor, not an abandonment, 424. 
 
 officer need not inquire into service of original writ, 438, 439, 440. 
 
 when voidable only, protects officer and party, 439, 440. 
 
 protects officer, though satisfied, 440. 
 
 personal property vested in officer, by, 443. 
 
 purchaser, no right to take goods against command of officer, 443, note. 
 
 officer not obliged to receive amount of, without his fees, 468, note. 
 
 sale of goods of tenants in common, under, 459, 460. 
 
 officer liable, although he do not remove property, 462, 463. 
 
 officer liable for removing goods at improper time, 464.
 
 INDEX. 669 
 
 EXECUTION" —cojitinued. 
 
 authority of person specially authorized to serve, 487, 488. 
 
 against administrator, form of, 532, 533, note. 
 
 interest of mortgagor, subject to, 544. 
 
 arrest upon, in New York, for injury of property , 587, 588, note. 
 EXECUTOES AND ADMINISTRATORS, 
 
 actions by and against, 54. 
 
 may maintain action for taking goods, 533, 533, 534. 
 
 execution against, how regarded, 532, 533, note. 
 
 actions by, under statute of New York, 533, 534, note. 
 
 action by executor of mortgagee for timber cut, 537, note. 
 EXEMPLARY DAMAGES. See Damages. 
 
 FACTOR, 
 
 action in case of loss of lien of, 560, 561. 
 FALSE IMPRISONMENT, 
 
 what constitutes, 264. 
 
 may be committed without force, 265, 7iote. 
 
 must be restraint of will, 266. 
 
 cannot be committed against one who refuses to depart, 266, 267. 
 
 when private person may lawfully artest another, 267, 268, 269, 270. 
 
 causing illegal arrest, 271 et seq. 
 
 when the consequence of orders given, 271, 272. 
 
 when warrant has been issued upon insufficient affidavit, 272, 273. 
 
 causing another to be arrested on void process, 274, 275. 
 
 party making complaint not liable, 275, 276, 277. 
 
 rule in relation to process, 277, 278. 
 
 party not liable for irregular execution of process, 278, 279. 
 
 coercion of wife but a legal presumption, 279. 
 
 causing arrest for felony without process, 280, 281. 
 
 giving in custody where no offense has been committed, 281, 282. 
 
 telling policeman to tq,ke charge of another, 282, 283. 
 
 what must be proved to excuse giving another in custody, 284, 285. 
 
 clerk or servant has no authority to detain and search another, 285. 
 
 attorney and client both liable to, 286. 
 
 malicious arrest by judgment creditor, 286, 287. 
 
 arrest and detention under military order, 288, 289, 290. 
 
 right of officer to detain person on suspicion of felony, 290, 291. 
 
 arrest by officer of innocent party without warrant, 292. 
 
 arrest by officer for assault committed in his jDresence, 292, 293. 
 
 duty of officer in making arrest without warrant, 293, 294. 
 
 officer cannot lawfully detain where the arrest was wrongful, 294, 295, 
 
 296. 
 will lie for arrest on Sunday, 295, note. 
 arrest by officer in case of escape, 296. 
 requisites of warrant of arrest, 297 et seq. 
 
 duty of officer to communicate substance of warrant, 301, 302. 
 liability of officer in execution of process, 302 eb seq. 
 warrant to justify officer, need not be on affidavit, 304, note.
 
 670 INDEX. 
 
 FALSE IMPRISONMENT— rtf«?i«we(Z. 
 
 departure of officer from order of arrest, 304, note. 
 
 judge issuing haheas corpus without jurisdiction, 304, note. 
 
 arrest by officer after party's discharge as an insolvent, 307, 308. 
 
 arrest of jirivileged person, 308, 309. 
 
 arrest of wrong person, 309. 
 
 arrest by officer receiving notice from attorney forbidding, 310. 
 
 duty and liability of party aiding officer, 310, 311, 312. 
 
 what constitutes an arrest, 312, 313, 314. 
 
 detention of party arrested by officer, 314 et seq. 
 
 officer's retura, 317, 318, 319. 
 
 responsibility of magistrates, 320 et seq. 
 
 waiver of right of action, 326, 327. 
 
 nature of the action, 328, 329. 
 
 difference between, and malicious prosecution, 328, note. 
 
 declaration, 329, 330. 
 
 plea justifying arrest without vrarrant on suspicion, 330, 331, 332. 
 
 plea justifying arrest without warrant for affray, 332, 333. 
 
 plea justifying arrest under process, 334, 335, 336. 
 
 replication to plea alleging breach of the peace, 337. 
 
 replication to plea justifying under process, 337 et seq. 
 
 facts and circumstances must be proved, 341. 
 
 magistrate's signature to ^vaxrant prima /flc/e evidence against him, 341. 
 
 actual violence need not be proved, 342. 
 
 proof of animus of defendant proper, 343. 
 
 wben burden of justifying on defendant, 344. 
 
 sufficient for officer to prove process, 344, 345. 
 
 proof of process not proper in justification under execution, 345, 346. 
 
 right of way as showing character of act, 341, note. 
 
 evidence of verdict in favor of one of several, not proper, 344, note. 
 
 acts and declarations of third person, 346, note. 
 
 admissions of one of two defendants, 346, note. 
 
 proof of language of magistrate, 346, note. 
 
 evidence where several are charged, 346. 
 
 proof of probable cause in mitigation, 346, 347, 348. 
 
 mitigating evidence not confined to time of wrong, 349, 350. 
 
 bad character of plaintiff cannot be proved, 350, note. 
 
 exemplary damages, 350, 351, 352. 
 
 damages where there is no malice, 351. 
 
 excessive damages where there was strong ground of suspicion, 351, note, 
 
 plaintiff entitled to what he has been compelled to pay, 352, 353. 
 
 where a sum has been accepted in satisfaction, 353, 354. 
 
 remote damages not recoverable, 353, note. 
 
 damages where the action is joint, 354. 
 
 damages must be excessive to be ground for reversal, 354, note. 
 FATHER. See Parkxt a>!d Child. 
 FEES, 
 
 vmtil tendered, officer need not receive amount of execution, 468, note.
 
 INDEX. 671 
 
 FELONY, 
 
 commission of, does not take away civil remedy, 33, 37. 
 prevention of, excuses homicide, 130, 143. 
 
 persons present at commission of, bound to apprehend offender, 267, 
 arrest for, by private jierson upon suspicion, 269. 
 liability of party who causes arrest for, without process, 280, 281. 
 right of officer to detain on suspicion of, 290, 291. 
 how tried under plea of justification, 347, note. 
 FEME COVERT. See Husband and Wife. 
 FENCE, 
 
 passes to grantee of real estate, 375, note. 
 FIRM. See Partnership. 
 FISHING NET, 
 
 action for injuring, 34. 
 FIXTURES, 
 
 old rule of law as to, 869, 370. 
 
 what now made to depend upon, 370, 371, 372. 
 
 annexation to the freehold not a criterion^ 371, 372, note. 
 
 civil law and French law, 372, -note. 
 
 machinery of a mill, 372, 373, note. 
 
 as between landlord and tenant, 373. 
 
 trees in a nursery, 373, note. 
 
 wine plants upon a farm, 373, 374, note. 
 
 rule as to right of tenant to remove, 374, note. 
 
 as between heir and executor, mortgagee and mortgagor, and grantee 
 
 and grantor, 374, 375. 
 what deemed, in Connecticut, 374, 375, note. 
 right of grantee of farm to manure, 375, 376. 
 growing crop, 375, note. 
 fences and fence materials, 375, note. 
 rule as to manure on fiirm occupied by tenant, 377. 
 when a building w'ill be deemed personal properly, 377, 378, 379. 
 right of mortgagee of land to building erected bv another thereon, 379,. 
 380. 
 FORCIBLE ENTRY, 
 
 into house or grounds may be resisted, 140. 
 FORCIBLE REilOVAL, 
 
 of trespasser from laud, 149, 150. 
 when and how right of, may be exercised, 151, 152. 
 not lawful to invite another to enter for the purpose of, 153. 
 when.it may be resisted, 153, 154. 
 from religious meeting, 158, 159. 
 of undertaker from church, IGO, note. 
 from jiublic conveyance, 163 et seq. 
 when party may resist expulsion from car, 170. 
 of pupil from school, 182, 183. 
 FORMER RECOVERY, 
 
 evidence under notice of, 84, 85, note. 
 must be specially pleaded, 85.
 
 672 INDEX. 
 
 FOmiER BECOYERY— continued. 
 
 when conclusive, 86, 97-99. 
 
 under submission of claim to arbitration, 86. 
 
 when a defense, although between other parties, 98, 99. 
 
 is only prima facie evidence, 99. 
 
 where the damages on one of several counts are not assessed, 99, note. 
 
 against one of several in assault and battery, will bar action against the 
 rest, 263, note. 
 FRAUD, 
 
 goods obtained by, may be retaken, 401. 
 
 action where possession is obtained by, 5Q1 et seq. 
 
 right of owner of goods in case of fraudulent sale, 570. 
 
 what deemed in sale, as to creditors, 571 et seq. 
 
 question of, for jury, 581, 582, 620. 
 
 sale may be void as to remedv, and valid as to possession of vendee, 683, 
 584.' 
 
 tendency of proof of previous fraudulent sale, 621. 
 
 in sale, as against attaching creditor, 626, note. 
 TRENCH LAW, 
 
 relative to fixtures, 372, note. 
 PRONTIER, 
 
 meaning of term, 441, 442, note. 
 
 OENERAL ISSUE, 
 
 how far it operates as a denial, 605. 
 act done through legal process cannot be shown by, 605. 
 justification of wrongful distress under, 606. 
 
 discretionary with court to allow its withdrawal, 335, note. See Plea. 
 GOODS, 
 
 taken to improve, without authority, cannot be detained, 358. 
 delivered to be manufactured, continue property of owner, 358. 
 rule of the civil law, where they are changed into a difierent species, 359. 
 common-law rule as to property in altered goods, 360, 361, 362. j 
 ' rule in New York and other States, as to title to altered goods, 862 and 
 
 note. 
 property in, by accession, 362. 
 efiiect of compounding, 363, 364. 
 
 rule of common law when they are intermingled wilfully, 364, 365. 
 civil-law rule in case of wilful intermixture, 364. 
 intermingling of, through accident or negligence, 365. 
 sale of, while mingled with those of another, 365, 366. 
 when owner estopped from asserting his title, 366, 367. 
 when sale of, by one liaving the mere possession, will transfer the title, 
 
 367. 
 when property in, vests in trespasser, 368. 
 made chattels by agreement, 368, 369. 
 vested in defendant by payment of judgment, 368, note. 
 remedy for the wrongful conversion of, into real estate, 369, note. 
 general rule as to fixtures, 369 et seq. 
 when a building will be deemed personal property, 377, 378, 379.
 
 INDEX. 673 
 
 GOODS — continued. 
 
 interference with for an instant is trespass, 381. 
 
 rio-ht to wood and timber floating in water over laud, 381, note. 
 
 to constitute a wrongful taking, need not have been a forcible dispos- 
 session, 382, 383. 
 
 trespass to, defined in North Carolina, 882, note. 
 
 trespasser acquires no title to, 382, note. 
 
 when lawfully acquired refusal to give up is not trespass, 382, note. 
 
 trespass to, may be committed without wrongful intention, 384. 
 
 to maintain action, taking must have been without permission, 384, 385. 
 
 remedy against second taker, 38."), 380. 
 
 bailee of, excused when taken from his possession, 386. 
 
 taken by servant by mistake, 387. 
 
 interfering with, after revocation of license, 388. 
 
 not a defense that they were taken with approval of wife, 388, note. 
 
 creditor obtaining goods unlawfully, 388, 389. 
 
 directing illegal seizure or sale of, 390 et seq. 
 
 when party jointly liable with officer in taking, 395, 396. 
 
 when act of agent in seizing deemed the act of his principal, 396, 397, 398. 
 
 mere purchaser at sheriflf's sale not liable, 399. 
 
 causing void attachment to be sued out, 399, 400. 
 
 causing sale by indemifying officer, 400, 401. 
 
 right of owner to retake, 401 et seq. 
 
 cannot be forcibly taken from officer by joint owner, 402, 7iote. 
 
 may be retaken by seller upon forfeiture, 403. 
 
 right where another has them for a specified time, 404, 405. 
 
 infant may retake upon rescinding sale, 405. 
 
 when sold upon credit, cannot be retaken, 405. 
 
 subsequent tender will not excuse taking, 406. 
 
 return of, if accepted by owner, will mitigate damages, 406. 
 
 wrongful taking, how affected by application to debt of owner, 406, 407. 
 
 wrongful taking not purged by subsequent sale, 407, 408. 
 
 proceedings stayed upon restoration of, 408, note. 
 
 when in process of manufacture, need not be taken by officer, 409, 410. 
 
 in actual use of debtor cannot be taken, 410, 411. 
 
 tools exempt from seizure by ancient law, 411. 
 
 rolling stock of railroad may be attached, 413, 414, 
 
 what included in necessaries, 415, 410. 
 
 debtor may waive or insist on exemption, 416, 417. 
 
 what essential to constitute attachment, 417, 418, 419. 
 
 officer in attaching, not required to secure against depredators, 420. 
 
 what necessary to constitute a levy, 420, 421. 
 
 constructive levy where second execution comes to officer's hands, 421. 
 
 levy upon joint effects, 432. 
 
 when levy extends constructively to suljsequently acquired goods, 422, 
 423. 
 
 how bound by levy at common law, 423, note. 
 
 leaving with debtor not an abandonment of levy, 424. 
 
 right to, as between attaching creditor and foreign mortgagee, 426, 427, 
 428. 
 Vol. I.— 43
 
 674 INDEX. 
 
 GOODS— continued. 
 
 may be taken by officer from owner after delivery to him by receiptor, 
 443, note. 
 
 of third person cannot lawfully be taken by officer, 447, 448. 
 
 officer excused where goods taken are in custody of judgment debtor, 
 449, 450. 
 
 of wife cannot be taken for husband's debt, 451 et seq. 
 
 liability of officer where goods are intermingled, 455 et seq. 
 
 of tenants in common, attachment and sale of, 458, 459, 460. 
 
 of partnership, attachment and sale of, 460, 461. 
 
 mortgaged, sale of by officer, 461, 462. 
 
 officer liable for wrongful levy without removal, 462, 463. 
 
 when attached, cannot lawfully be kept in another's building, 464. 
 
 liability of officer for improper removal, 464, 465. 
 
 possessor of, may maintain trespass, 507. 
 
 possession of, not sufficient to maintain action when right is in thii'd 
 person, 509, 510. 
 
 when held under attachment, may be again attached, 510. 
 
 averment of property in, maintained by proof of possession with inter- 
 est, 511, 512. 
 
 general property in, sufficient to maintain action, 512. 
 
 parting with, will not defeat action when possession can be at any time 
 resumed, 518 et seq. 
 
 eflFect of exchange of, when deposited as security for a loan, 523, 524. 
 
 purchaser may maintain action against seller without delivery, 525. 
 
 right of officer to maintain action for, 528, 529, 530. 
 
 when officer, in action by him for takinir, required to prove judgment, 
 539. 
 
 qualified property in, subject to attachment, 549, note. 
 
 special property in, forTeited by putting to improper use, 550, note. 
 
 when taken from bailee owner cannot maintain action, 550, 551. 
 
 effect of return of, when sold or pledged, 576, 577. 
 
 possession must be j^sroved, 614, G15. 
 
 proof of the taking, 615, 616. 
 
 evidence as to value, 017. 
 
 proof of circumstances of wrongful seizure, 617, 618. 
 
 evidence of intention in action for taking, 618, 619, 620. 
 
 presumptions, 620. 
 
 justification of wrongful taking, 624 ct seq. 
 
 owner, by attaching, not prevented from showing that thev are his, 622, 
 623.' 
 
 evidence in mitigation of damages for taking, 632. 633, 634. 
 
 damiges in general, 633 et seq. 
 GOVEENMENTS, 
 
 preventive force exercised by, 11, note. 
 GRAND JURY, 
 
 witness refusing to be sworn may be given in custody, 293, note. 
 
 have authority to arrest in Connecticut, 302, note. 
 
 not liable for finding indictment, 8.
 
 INDEX. 675 
 
 GRAND LARCENY, 
 
 right and duty of officer to take property in case of, 484. 
 GUARDIAN, 
 
 infant wlien sued must liave, 42. 
 
 HABEAS CORPUS, 
 
 issued without jurisdiction, is not false imprisonment, 304, note. 
 HIGHWAY, 
 
 whole space need not be graded, 4, 5. 
 
 injury of by cutting away dam, 23. 
 
 liability for playing ball upon, 23, note. 
 
 person unlawfully obstructing may be removed, 135, 136. 
 
 railway depot is not, 177. 
 HOMICIDE, 
 
 lawful in self-defense, 138, 130, 143. 
 HOUSE. See Dwelling-house. 
 HOUSEHOLD FURNITURE, 
 
 what included in necessary, 415, 416. 
 HUSBAND AND WIFE, 
 
 assignment by wife of claim for tort, 37, note. 
 
 action for wrong committed by wife, 38, 39, 40. 
 
 liability of husband at common law for torts of wife, 38. 
 
 when coercion of husband presumed, 38, 39. 
 
 what essential to exempt wife from liability, 39. 
 
 liability of wife to be sued after death of husband, 39, 40. 
 
 statutes of New York relative to liability of husband for tort of wife, 40, 
 note. 
 
 right of self-defense, 133. 
 
 action for assault and battery will not lie by wife against husband, 189. 
 
 statutes of New York relative to actions between, 189, 190, note. 
 
 who entitled to damages for personal injury of wife, 330, 201, 202. 
 
 husband cannot recover for mental suffeiing of wife, 251, note. 
 
 coercion of wife but a legal presumption, 279, 
 
 no defense that goods were taken with approval of wife, 388, note. 
 
 liability of officer for seizing wife's goods, 451, 452. 
 
 statute of Vermont exempting property of wife, 451, 452, note. 
 
 husband's right to wife's goods at common law, 452. 
 
 wife's goods cannot be taken for husband's debts in New York, 453, 454, 
 
 when property of wife vests in husband, she cannot be joined in action, 
 510, note. 
 
 damages in action by wife for taking her property, 639, v/>te. 
 
 IGNORANCE, 
 
 of boundary excused in North Carolina, 8, note. 
 INDEMNITY, 
 
 of innocent wrong-doer, 28, 29, 30, 67, note. 
 
 distinction between promises of, 23, 29. 
 
 conflict of authority as to promise of, 28, 2^^note.
 
 G76 INDEX. 
 
 INDICTMENT, 
 
 when trespass the subject of, 33, note. 
 
 proof of, for same assault, 224, 233. 
 INFANT, 
 
 may retake goods upon rescinding sale, 405. 
 
 cannot maintain action for goods which he surrendered, 547, note. 
 See Parent and Child. 
 INN, 
 
 keeper of, may prohibit persons from entering, 154. 
 
 proprietor bound to admit persons to see guests, 155. 
 
 right of landlord to eject persons, 156, 157. 
 
 action against keeper of, founded in tort, 382, note. 
 INSANE PERSON, 
 
 any one may arrest and detain, 269. 
 INSOLVENT, 
 
 may be arrested notwithstanding he shows his discharge, 307, 308. 
 INSTRUCTION. See Court. 
 INTENTION, 
 
 action will lie irrespective of, IS et seq. 
 
 character of act dependent upon, 17. 
 
 to do illegal act, 17, 18. 
 
 not a ground of action, 18, 19, note. 
 
 felonious, does not take away civil remedy, 36, 37. 
 
 how pleaded, 82. 
 
 in action for taking and carrying away goods, 618, 619, 620. 
 INTEREST, 
 
 not allowed on judgment, 115, note. 
 INTERNAL REVENUE, 
 
 collector of, not liable for mistaken seizure, 502, 7iote, 
 INTOXICATED PERSON, 
 
 abuse of, by conductor of omnibus, 42. 
 INTOXICATING LIQUOR, 
 
 action for taking, although held unlawfully, 596, 597, 598, 
 
 is not a common nuisance, 598, note. 
 ISSUE, 
 
 what facts deemed to have been in, 97, 98, note. 
 
 JAILOR, 
 
 wrongful detention of paity, 316, 317. 
 JOINT WRONG-DOERS, 
 
 who to be deemed, 22 et seq.., 63,64 et seq. 
 
 where authority. is delegated, 24, 25. 
 
 where a nuisance is allowed, 24, note. 
 
 action in the case of, Gl et seq. 
 
 in hiring carriage and horses, 66, ?iote. 
 
 where the trespass is done for one's benefit, 66, note. 
 
 confession of judgment by one, 67, note. 
 
 trespass cannot be maintained by, 67, note. 
 
 what constitutes, 67, 68.
 
 INDEX. C77 
 
 JOINT WnOH^G-DOERS— continued. 
 
 settlement with some of several, 71, 72, 
 
 nature of injury by, 71, 72, note. 
 
 release of one, 72, 7iote, 73, 74. 
 
 plea by, 82, 83. 
 
 justification by, when ill, 83, note. 
 
 evidence in relation to, 93, 94. 
 
 when admitted to testify, 94, 95, 96. 
 
 acquittal of one of several, 96. 
 
 effect of satisfaction by one, 99. 
 
 damages in action against, 105 et seq. 
 
 only liable for acts jointly committed, 108. 
 
 costs where separate actions are brought, 109. 
 
 verdict against, 110, 111. 
 
 aiding or encouraging battei'y, 193, 194. 
 
 where one is not served, 202, 203. 
 
 improper joinder of, not ground of exception after verdict, 203, tiote. 
 
 recovery against one in assault and battery will bar action against the 
 rest, 263, note. 
 
 all liable who advise or act with magistrate, 321, note, d2Q,note. 
 
 joint liability with officer in taking goods, 395, 396. 
 
 forcibly taking goods from officer by joint owner, 402, note. 
 JUDGE, 
 
 general rule as to liability of, 8. 
 
 may direct entry of verdict during trial, when, 112. 
 
 may ask jury ground of verdict, 112. 
 
 issuing habeas corpus without jurisdiction, 304, note. 
 JUDGMENT, 
 
 how pleaded, 56. 
 
 confession of, by one of two joint defendants, 67, note. 
 
 when remedy upon, lost, 74, 75. 
 
 when it will constitute a defense, 97. 
 
 explanation of rule as to effect of, 97, 98, note. 
 
 when a bar, although rendered between other parties, 98, 99. 
 
 effect of satisfaction of, by one of several, 99. 
 
 where damages are not assessed on all the counts, 99, 7ioie. 
 
 election of judgments, 107. 
 
 by default against several, 108. 
 
 can only be rendered for trespasses charged, 114. 
 
 in case of several issues, 114. 
 
 when it must be joint, 114. 
 
 where defendant dies after verdict, 115. 
 
 may be reversed as to one and affirmed as to other, 116. 
 
 against party not summoned, 115, note. 
 
 interest on, not allowed, 115, note. 
 
 •determining question of possession, 227. 
 
 goods vested in defendant by payment of, 368, note. 
 
 plaintiff in attachment suit protected by, 389, 390, note. 
 
 effect of reversal of, in attachment suit, 391, note.
 
 678 INDEX. 
 
 JTTDGM'E'NT—contirmed. 
 
 ■wlicn officer required to plead and prove, 439. 
 
 in lavor of sheriff, is evidence for sheriff, 491, 7wte. 
 
 when officer required to prove, 530. 
 
 in trover, conflict of autbority as to eflFect of, GOO, 601. 
 
 is best evidence of relation of debtor and creditor, 626, note. 
 
 in attachment suit, cannot be set off in trespass, 637, note. 
 
 ■when erroneously entered, will be amended, 650, note. 
 JUDGMENT CREDITOR, 
 
 maliciously causing arrest, 286, 287. 
 JURISDICTION, 
 
 liability of courts and ofiicers proceeding without, 55 et seq. 
 
 distinction between courts of general and limited, 56. 
 
 when want of, may be shown collaterally, 115, 321, note. 
 
 magistrate may justify without showing, 321, note. 
 
 liability of magistrate acting without, 323, 324. 
 
 want of, to render magistrate liable, must appear on face of proceedings. 
 320, note. 
 JURY, 
 
 not liable for wrong verdict, 8. 
 
 are to decide as to sufiiciency of evidence, 101. 
 
 may be asked ground of verdict, 112. 
 
 may change their mind as to verdict, 112. 
 
 polling of, 112, 11.3. 
 
 question of excess of authority to be determined by, 143, Tiote. 
 
 fact of possession question for, 576, note. 
 
 to determine question of fraud in conveyance or attachment, 581, 582. 
 
 to determine as to character of sale, 620. 
 JUSTICE OF THE PEACE, 
 
 confined to authority given by statute, 55, 321, 322. 
 
 judgment of, how pleaded, 56. 
 
 liability for illegal acts, 57, 58. 
 
 cannot act in New York, when an innkeeper, 58, note. 
 
 duty when penalties are recovered before, 58, note. 
 
 powers of, superseded by certiorari, 58, note. 
 
 liability of, for the illegal issuing of final process, 58, note. 
 
 liability of, for issuing process without complaint, 58, 59, note. 
 
 ground of liability of, 59. 
 
 not liable for error of judgment, 59, 60. 
 JUSTIFICATION, 
 
 rule of common law as to pleading, 83, 84. 
 
 jjrinciple, where several join in, 83, note. 
 
 evidence in case of, where the plaintifi'new assigns, 90. 
 
 of a battery in defense of property, 135 et seq. 
 
 of wrongful distress, 606. 
 
 when officer must plead specially, 608. 
 
 in replevin, must allege the giving of a bond, 610. 
 
 for taking personal property, evidence in, 624 et seq. 
 
 trader process, proof of, 625, 626. 
 
 evidence in, must conform to plea, 631.
 
 INDEX. 679 
 
 LAND, 
 
 forcible removal of trespasser from, 149, 150. 
 
 assault of person after his title to occupy has ended, 150, 151. 
 
 when and how right of removal from, may be exercised, 151, 152. 
 
 not lawful to invite another on, in order to eject, 153. 
 
 when removed from, naay be resisted, 153, 154. 
 LANDLORD, 
 
 may prohibit persons from entering inn, 154. 
 
 bound to admit persons who have business with guests, 155. 
 
 right to eject persons, 150, 157. 
 LANDLORD AND TENANT, 
 
 tenant may defend possession, 135. 
 
 forcible ejection of tenant unlawful, 143. 
 
 rule as to fixtures, 373. 
 
 right of tenant to remove fixtures, 374, note. 
 
 tenant of farm has no right to remove manure, 377. 
 
 when deemed in joint possession of personalty, 515, note. 
 LANGUAaE. See Words. 
 LAW, 
 
 authority in, a justification, 8. 
 
 rights distinguished by, 11. 
 
 reasonable time, a question of, 483, note. 
 
 of another State, must be proved, 92, 93. 
 LESSOR AND LESSEE. See Landlord and Tenant. 
 LIBEL, 
 
 for assault and battery of child, 187, note. 
 LICENSE, 
 
 assignee of, no right to enter premises when forbidden, 135, note. 
 
 to attend place of j)ublic amusement, may be revoked, ICO, 161. 
 
 to ren\ain upon premises of railroad company, 179. 
 
 interfering with goods after revocation of, 388. 
 LIEN, 
 
 of factor, action in case of loss of, 560, 561. 
 
 right of, at common law, 561, note. 
 
 to whom now extended, 561, note, 
 
 forfeited by failure to fulfil contract, 561, note. 
 LIMITATIONS. Statute of, 
 
 where property is tortiously severed from freehold, 374, note. 
 LIQUOR. See Intoxicating Liquor. 
 LOAN, 
 
 exchange of goods when deposited as security for, 523, 524. 
 LUNATIC. See Insane Person. 
 
 MACHINERY, 
 
 when deemed fixtures, 372, 373, note. 
 MAGISTRATE, 
 
 liable if he do not take the official oath, 320. 
 
 sole question in action against for false imprisonment, 320. 
 
 want of jurisdiction of, may be shown in collateral action, 321, note.
 
 680 INDEX. 
 
 MA-GISTBA-TE— continued. 
 
 piay justify without sliowing jurisdiction, 321, note. 
 
 all liable who advise or act with him, 331, note. 
 
 acts of, must be done within authorized locality, 323. 
 
 cannot detain person before a charge is made, 333, 323. 
 
 liable for acting without jurisdiction, 333, 324. 
 
 liable for wrong ministerial acts, 334, 325. 
 
 liable for consequences of commitment, 326. 
 
 want of jurisdiction must apjiear on the face of the proceedings, 336, note. 
 
 signature to wsiTrant 2}rima facie evidence against him, 341. 
 
 proof of what was said before, 346, note. 
 
 party complaining to, not liable for false imprisonment, 275, 276, 277. 
 MAINTENANCE, 
 
 meaning of, 38, note. 
 MALICE, 
 
 not imputed to lawful transaction, 45. 
 
 proof of, in assault and battery, 228, 229, 230. 
 
 words characterizing conduct as to, 229. 
 
 in law and actual, distinction, 253. 
 MANURE, 
 
 right of grantee of farm to, 375, 376. 
 
 tenant has no right to remove, 377. 
 
 tenant entitled to, in North Carolina, 377, note 
 MARKET OVERT, 
 
 eflfect of sale in, at common law, 568, note. 
 MASTER AND SERVANT, 
 
 promise of indemnity by master, 29, 30. ' 
 
 liability of master for wrongs of servant, 42 et seq. 
 
 principle on which master is liable, 42, 43, note. 
 
 distinction between trespass of servant and liability of master for neg- 
 ligence, 43, note. 
 
 liability of railroad company for wilful conduct of employees, 43, 44, 
 note, 162, 163, 165, 166. 
 
 when master not liable, 44, 45, 48, 49, 163, 164, 587, note. 
 
 implied authority of servant, how limited, 44, note. 
 
 when relation of, must be proved, 46. 
 
 sheriff and his deputy sustain the relation of, 52 note. 
 
 right of self-defense, 133. 
 
 chastisement of servant by master, 186, 187. 
 
 corporal punishment by master of vessel, 187. 
 
 where servant has taken goods by mistake, 387.- 
 
 action when goods are taken from servant, 530, 531. 
 
 action by master of vessel for injury of property, 554. 
 MAYOR, 
 
 liable for the wrongful taking of property for tax, 57. 
 MEETING. See Religious Meeting. 
 MILITARY OFFICER, 
 
 when amenable to civil tribunal, 288, 389, 309, note. 
 
 acts of, to be viewed with indulgence, 389, 390. 
 
 rights and responsibilities of, how governed, 290.
 
 INDEX. 681 
 
 MINORS, See Parent and Child. 
 MISTAKE, 
 
 in assessment of damages, how cured, 106, 107. 
 assessor of taxes not liable for, 498, note. 
 MONEY, 
 
 payment into court, 83, note. 
 MORTGAGOR AND MORTGAGEE, 
 
 right of foreign mortgagee to goods as against attaching creditor 426, 
 
 437, 428. 
 sale by officer of mortgaged goods, 461, 463. 
 duty of officer to inquire as to ownershiij of goods, 483, note. 
 demand upon officer by mortgagee, must be within a reasonable time, 
 
 483, 483, note. 
 mortgagee of goods may maintain action for their removal, 534, 535. 
 no demand required as between mortgagee and wrong-doer, 535, 536. 
 what damages mortgagee entitled to, in action against officer, 535, 536, 
 
 note. 
 
 action where goods are left with mortgagor by agreement, 537. 
 
 right of mortgagee to take possession of property after it has been trans- 
 ferred by mortgagor, 538, 7iote. 
 
 mortgagee may maintain action although the mortgage be afterwards 
 adjudged void, 538, 539. 
 
 recovery by second mortgagee, 539. 
 
 right of person to be treated as assignee of mortgage, 539, 540. 
 
 action by mortgagee against officer and execution creditor, 539, note, 
 
 mortgage of future acquired chattels, 541, 543. 
 
 waiver by mortgagee, 542, 543, 544. 
 
 when right of mortgagee suspended, 544. 
 
 interest of mortgagor subject to levy and sale, 544. 
 
 property left with mortgagor liable to attachment, 544, 545, note. 
 
 action by mortgagee against officer, 640, 641. 
 
 right of property in mortgagor except as to mortgagee, 545, 546. 
 
 effect of sale and mortgage to secure purchase money, 546. 
 
 damages where goods are seized by mortgagee before forfeiture, 641. 
 MOTIVE. See Intention. 
 MUSIC MASTER, 
 
 cannot lawfully beat chorister, 183, note. 
 
 NECESSARIES, 
 
 what included in, 415, 416. 
 NECESSITY, 
 
 injury caused by, excused, 3, 9, note. 
 
 must be proved to have existed at time of injury, 3. 
 NEGLIGENCE, 
 
 trespass may be maintained in case of, 34, 35. 
 NEW ASSIGNMENT, 
 
 nature and use of, 88. 
 
 has been superseded in New York, 89. 
 
 when plaintifl" restricted to, 89. 
 
 when double, 89.
 
 682 INDEX. 
 
 NEW ASSIGNMENT— fo«ii/m«Z. 
 
 when required iu assault and battery, 216, note, 217, 218, 219. 
 
 necessary in case of re-arrest, 338. 
 
 when required as to acts of officer, 613. 
 
 in trespass to personal property, 613, note. 
 
 inartificial averment in, cured by verdict, 614, note. 
 NEW TRIAL, 
 
 for admission of improper evidence, 116. 
 
 where the verdict is contrary to evidence, 117. 
 
 on account of excessive damages, 117, 118. 
 
 for smallness of damages, 119. 
 NONSUIT, 
 
 of one of several, eifect of, 94, note. 
 NOTICE, 
 
 accompanying general issue, effect of evidence under, 84, note. 
 
 of former recovery under plea of not guilty, 84, 85, note. 
 
 of time and place of sale must be given by officer, 465, 466, 467. 
 
 insufficient, not cured by adjournment, 468, note. 
 
 of sale, duty of buyer to give, 577, 578. 
 NUISANCE, 
 
 liability for, when created by anothei, 24, note. 
 
 right to abate at common law, 598, note. 
 
 spirituous liquors are not, 598, note. 
 
 OFFICER, 
 
 party liable for acts of, though officer excused, 25. 
 when authority of, a justification of others, 25. 
 party not bound to obey command of, to do unlawful act, 25. 
 omission of, to return process, will not make party liable, 26. 
 when person aiding, not liable for the acts of, 26, 27. 
 right to resist unlawful seizure of goods by, 138, 139, 140, 141. 
 may be resisted, if he do not show his warrant, 192, 
 must not use force when prisoner submits, 192. 
 
 party not responsible for irregular execution of process by, 278, 279. 
 when giving in charge of, constitutes false imprisonment, 281, 282, 283. 
 military, when amenable to civil tribunal, 288, 289, 290. 
 right to detain person on suspicion of felony, 290, 291. 
 arresting innocent party without warrant, 292. 
 arrest by, for assault committed in his presence, 292, 293. 
 duty where he makes arrest without warrant, 293, 294. 
 cannot lawfully detain where the arrest was wrongful, 294, 295, 296. 
 arrest by, in case of escape, 296. 
 duty to communicate substance of warrant, 301, 302. 
 not affected by irregularity in proceedings, 302 et seq. 
 warrant to justify, need not be founded on affidavit, 304, 7iote. 
 becomes a trespasser by departing from order of arrest, 304, 315, note. 
 may arrest notwithstanding he is shown the partv's discharge as an in- 
 solvent, 307, 308. 
 may arrest privileged jjerson, 308.
 
 INDEX. G83 
 
 OFFICER— conti7iued. 
 
 arresting wrong person, 309. 
 
 making arrest after notice from attorney not to do so, 310. 
 
 duty of i^arty to aid, 310, 311. 
 
 when party aiding -will be liable, 311, 313. 
 
 what constitutes an arrest by, 312, 313, 314. 
 
 detention of party arrested, 314, 315, 316, 317. 
 
 must set forth his acts in his return, 317, 318. 
 
 return of, how far evidence in his favor, 319. 
 
 justifying under process, must set forth return, 336. 
 
 directing illegal seizure or sale of goods by, 390 et seq. 
 
 not liable for improperly receiving money without notice, 394, note. 
 
 when party jointly liable with, in taking goods, 395, 396. 
 
 causing wrongful sale by executing indemnity to, 400, 401. 
 
 assault and battery by, in retaking goods, 402. 
 
 forcible taking of goods from, by joint owner, 402, note. 
 
 need not take goods in process of manufactiu'e, 109, 410. 
 
 what required to do to make an attachment, 417, 418, 419. 
 
 need not secure goods attached against depredators, 420. 
 
 what necessary to eflect a levy, 420, 421. 
 
 constructive levy upon receiving a second execution, 431. 
 
 levy upon joint effects, 432. 
 
 when levy extends constructively to subsequently acquired goods, 423, 
 
 433. 
 by leaving goods with debtor does not abandon levy, 434. 
 general rule as to protection afforded by process, 438, 439. 
 distinction in England as to justification under process, 430, 431. 
 duty and liability in the execution of process in New York, 431, 432. 
 bound to obey precept, 433, 434. 
 
 is hable if he knowingly executes void process, 434, 435, 436. 
 liability of, in executing writ of replevin, 436, 437, 438. 
 need not inquire into service of original writ, 438, 439, 440. 
 when required to plead and prove a judgment, 439. 
 protected by execution which is voidable only, 439, 440. 
 not bound to entertain evidence of settlement of claim, 440. i 
 
 when a volunteer, must show legality of process, 441, 443. 
 must not serve process after notice that it has been superseded, 442. 
 may take goods from owner after delivery to him by receiptor, 442, note.. 
 personal property vested in by execution, 443. 
 duty in executing attachment, 443, 444, 445. 
 no excuse that property attached was taken from his possession, 443, 
 
 note. 
 liable even where he acts in good faith, 446. 
 liability for seizing goods which are exempt, 440, 447, note. 
 cannot lawfully take [)roperty of third person, 447, 448. 
 excused where goods taken are in custody of judgment debtor, 449, 450. 
 liability for seizure of property of wife, 451, 452. 
 liaijility where goods are intermingled with debtors, 455 et seq. 
 attachment of chattel held in common, 458.
 
 684 INDEX. 
 
 OFFICER— continued. 
 
 sale of good.3 of tenants in common under execution, 459, 460. 
 
 attachment and sale of partnership property, 460, 461. 
 
 sale of mortgaged goods, 461, 463. 
 
 will be liable for wrongful levy without removal, 462, 463. 
 
 has no right to keep attached goods in another's building, 464. 
 
 liable for removing goods at improper time, 464, 465. 
 
 in seizing property, must show that he has discharged fully his duty, 
 
 465 et seq. 
 must give notice of time and place of sale, 465, 466, 467. 
 not liable for improper postponement by request of debtor, 467, 468. 
 is liable for selling goods under attachment without complying with 
 
 the statute, 468, 7wte. 
 liability of, for using property taken by him, 468, 469, 470. 
 not obliged to receive amount of execution without his fees, 468, 7iote. 
 responsibility in relation to treatment of property attached, 472,473. 
 cannot lawfully act as agent, 473. 
 when liable for nonfeasance, 473, 474, 475, 476. 
 not liable for mistake in return, 475, Tiote. 
 not liable for refusing to take bail, 476, note. 
 sheriff liable for nonfeasance of his deputy, 476, note. 
 when deemed a trespasser db initio, 476 et seq. 
 liable for leaving goods in charge of unsuitable person, 480, 481. 
 liability of, for use of goods by third jjerson, 481. 
 exercising lawful authority, not liable to third person, 482. 
 duty to inquire as to ownership of property, in case of mortgage, 482, 
 
 Jiote. 
 
 demand upon by mortgagee must be within reasonable time, 483, 483, 
 note. 
 
 may seize goods without process, 483, 484. 
 
 right to take property in grand larceny, 484. 
 
 special power and duty of, 487, 488. 
 
 de facto, validity of acts of, 488, 489. 
 
 when he holds goods under attachment, not liable for again attaching 
 
 them, 510. 
 right to maintain action for goods, 528, 529, 530. 
 when required to prove a judgment, 530. 
 
 liability for removing goods under attachment against mortgagor, 537. 
 how to justify the taking of goods from bailee of mortgagee, 539, note. 
 when in action for taking goods to plead specially, 608. 
 when acts of, should be newly assigned, 613. 
 must prove service of warrant by return, 627, 628. 
 may serve process in his own behalf, 629, note. 
 when return of, not evidence for, 630. 
 •OMNIBUS, 
 
 abuse of person by conductor, 42. 
 
 PARENT AND CHILD, 
 
 father not liable for wilful act of child, 41. 
 
 father cannot recover back money paid for tort of son, 41.
 
 INDEX. 685 
 
 PARENT AND CBILB— continued. 
 
 liability of father when present at commission of wrong hj child, 41,42. 
 
 minors may be sued for trespass, 41, note. 
 
 infant when sued must have guardian, 42. 
 
 right of self-defense, 133. 
 
 unlawful for child to disturb family, 152, 153, note. 
 
 action for seduction of daughter, 180, 181, 182. 
 
 libel for assault of child at sea, 187, note. 
 
 liability of father for injury caused by team in charge of son, 191, 192, 
 note. 
 
 minor entitled to earnings as against creditors of father, 580, note. 
 
 infant liable for injuring personal property, 587. 
 
 when plea of infancy a good defense, 585, 586, 7iote, 
 PARISH, 
 
 can only raise money for pui'poses exjiressed by law, 494, note. 
 PARTNERSHIP, 
 
 liability of members of, 54. 
 
 attachment and sale of property of, 460, 461. 
 
 settlement with one of two partners, 566, note. 
 PARTY, 
 
 non-joinder of, how objected to, 79. 
 
 remedy for misjoinder of, under New York Code, 79, 80. 
 PAWNBROKER, 
 
 measure of damages where goods are deposited with, 641. 
 PAYMENT, 
 
 of money into court, 83, note, 649, note. 
 
 of judgment, vests goods in defendant, 368. 
 PERSONAL PROPERTY, 
 
 defense of, will justify a battery, 135 et seq. 
 
 may be forcibly taken from wrong-doer, 136, 137, 146 et seq. 
 
 right to resist unlawful attachment of, 138, 139, 140, 141. 
 
 wrongful removal of, may be opposed, 141. Bee Goods. 
 PLACE, 
 
 description of. in declaration, 77. 
 
 of trial must be where goods were taken, 614, note. 
 PLATFORM. See Depot. 
 PLEA, 
 
 of unavoidable accident, when sufficient, 3, note. 
 
 in abatement at common law for non-joinder of party, 79. 
 
 requisites of plea in bar, 81. 
 
 inconsistent defenses may be interposed by, 81. 
 
 of tender, in Vermont, 81 , note. 
 
 when intent may be traversed, 82. 
 
 where the action is against several, 82, 83. 
 
 of justification, 83, 84, 85. 
 
 withdrawal of general issue, 83, note. 
 
 matters that must be specially pleaded, 84, note. 
 
 authority how stated in, 85. 
 
 general issue in assault and battery, 206, 207.
 
 <)86 INDEX. 
 
 PLEA — con tinued. 
 
 rule as to special plea in assault and battery, 207, 208. 
 
 So?i assault demesne., 209. 
 
 efi'ect of answering assault, 209. 
 
 violliter manus imjwsuit, 210, 211. 
 
 where the declaration charges several distinct assaults, 211, 212. 
 
 in bar generally, in assault and battery, 212, 213, 214. 
 
 when declaration charges aggravated assault and battery, 214. 
 
 amendment of, in assault and battery, 215. 
 
 justifying arrest without warrant on vSiispiciou, 330, 331, 332. 
 
 justifying arrest without warrant on account of affray, 332, 333. 
 
 justifying arrest under process, 334, 335, 336. 
 
 what it may contain in action for taking goods, 603. 
 
 sufficient if it substantially sets out defense, 603, 604. 
 
 how far general issue operates as a denial, 605. 
 
 requisites of, when the defendant justifies the taking of goods under 
 process, 607, 608. 
 
 when officer must plead justification sjjecially, 608. 
 
 need not traverse detention and conversion when taking justified, 609, 
 610. 
 
 of justification in replevin, must allege the giving of a bond, 610. 
 
 of not possessed, in action for taking goods, 609, note. 
 
 by collector under rate bill and warrant, 610, 611. 
 
 special, what acts admitted by, 611, 612. 
 
 need not set out tax list. 611, note. 
 
 of duress, evidence under, 630, 631. 
 
 evidence in justification must conform to, 631, note. 
 PLEDGE, 
 
 is a mere bailment, 5-53, note. 
 
 statute of New York, 553, note. 
 
 owner of goods pledged cannot maintain action, 553. 
 
 effect of return to owner of goods pledged, 576, 577. 
 POLICE. See Officeh. 
 POSSESSION, 
 
 of place of assault, proof of, 224, 225, 226, 227. 
 
 of child, fraud in obtaining not material, 227. 
 
 determined by judgment, 227. 
 
 of goods, sufficient to maintain trespass, 507. 
 
 not sufficient to maintain action when paramount right is in thii'd per- 
 son, 509, 510. 
 
 proof of, will maintain averment of property, 511, 512. 
 
 constructive, cannot prevail against actual, 515, note. 
 
 when deemed joint as between vendor and vendee, or lessor and lessee, 
 515, note. 
 
 of personal property, when constructive, 516, 517, 518. 
 
 parting with, with right to resume at any time, will not defeat action, 
 518 cf seq. 
 
 constructive of vendee, when goods sold deemed in, 526, 527. 
 in the case of a corporation, 531. 
 mortgagee entitled to, 534.
 
 INDEX. 687 
 
 POSSESSION— 6-(?w?i?iMe^. 
 
 presumption of fraud from continued, 574, 575. 
 
 question of, for jury, 570, note. 
 
 owner by parting witli, loses right of action, 547, 548, 551, 553, note. 
 
 must be shown to be rightful, 5G9, 570. 
 
 obtained by fraud, action in case of, 567 et seg. 
 
 pledgee entitled to, 553. 
 
 of goods, must be proved, 614, 615. 
 POSTPONEMENT. See Adjournme^it. 
 PRESIDENT, 
 
 of railroad company, liability of, for acts of agent, 179, 180. 
 PRESUMPTIONS. See Evidence. 
 PRINCIPAL AND AGENT, 
 
 when principal liable for wrongful acts of agent, 27, 28, 50, 51. 
 
 promise of indemnity of agent when implied, 28, 29, note. 
 
 responsibility of j^rincipal for acts of subagents, 47, 48. 
 
 ofBcer cannot act as agent, 473. 
 
 when act of agent in seizing goods deemed act of principal, 396, 897, 
 398. 
 
 action where agent is in possession, 557 et seq. 
 
 action where lien of factor is lost, 560, 561. 
 PRIVILEGED PERSON, 
 
 may be arrested upon regular process, 308. 
 
 may waive privilege, 309. 
 PRIZE, 
 
 seizure as, is not trespass, 485, 486. 
 PROBABLE CAUSE, 
 
 of suspicion, in actions for false imprisonment, 346, 347, 348. 
 PROCESS, 
 
 its not being returned will not prejudice person aiding officer, 26. 
 
 liability of justice of the peace for, 58, 7iotc. 
 
 omission to serve, in assault and battery, 202, 203. 
 
 void, causing another to be arrested on, 274, 275. 
 
 rule as to false imprisonment for arrest under, 277, 278. 
 
 party not responsible for irregular execution of, by officer, 278, 279. 
 
 liability of attorney and client for, 286. 
 
 liability of officer in execution of, 302 et sej. 
 
 plea justifying arrest under, 334, 335, 336. 
 
 replication to plea justifying under, 337 et seg. 
 
 sufficient for officer justifying arrest to prove, 344, 345. 
 
 proof of service of, where defendant justifies under execution, 345, 846. 
 
 liability of party causing it to be issued without jurisdiction, 391, 392. 
 
 party not in general liable for irregular execution of, 392, 393, 394. 
 
 directing officer to continue to act under it, 394. 
 
 causing void attachment to be levied, 899, 400. 
 
 general rule as to protection afforded officer by, 428, 429. 
 
 distinction in England as to justification of officer under, 430, 431. 
 
 duty and liability of officer in the execution of, in New York, 431, 482. 
 
 officer bound to obey, 433, 434.
 
 688 INDEX. 
 
 FHO CESS— continued. 
 
 when void on its face, officer executing it a trespasser, 434, 435, 436. 
 
 void and voidable, distinction, 435, note. 
 
 liability of officer in executing writ of replevin, 43G, 437, 438. 
 
 original, officer having execution, need not inquire into service of, 438, 
 439,440. 
 
 Icgalitv of, must be shown by officer when he acts as a volunteer, 441, 
 442. 
 
 officer must not serve after notice that it has been superseded, 442. 
 
 officer permitted to seize goods without, 483, 484. 
 
 service of, by person sj)ecially appointed, 487. 
 
 act done under, cannot be shown under general issue, 605. 
 
 when to be objected to by plea in abatement, 637, note. 
 
 officer may serve in his own favor, 629, note. 
 
 proof of justification of trespass to personal property under, 625, 626. 
 PROPERTY, 
 
 how far use of, justifiable, 10, note. 
 
 defense of, will justify a battery, 135 et s;q. 
 PROVOCATION, 
 
 words or acts of, may have elFect of breach of the peace, 2. 
 PUBLIC AMUSEMENT, 
 
 license to attend, may be revoked, IGO, 161. 
 PUBLIC OFFENSE, 
 
 damages after conviction for, 257. 
 PUNISHMENT. See Corporal Punishment. 
 PUPIL, 
 
 right of teacher to chastise, 182 et seq. 
 
 supervision of teacher over, 185. 
 
 chastisement of, by teacher, for acts done at home, 185, 186. 
 ' evidence of excessive punishment of, 230, note. 
 
 RAILROAD COMPANY, 
 
 locating road does not constitute trespass, 34, note. 
 
 liable for conduct of employees, 43, 44, note, 162, 163, 165, 166. 
 
 when not liable for acts of servants, 163, 164. 
 
 right to enforce regulations, 166, 167. 
 
 contract implied by ticket, 167. 
 
 right to eject party from car, 167, 168, 169. 
 
 when party may resist expulsion from train, 170. 
 
 effect of special condition on ticket, 170 etseq. 
 
 party bound to surrender ticket when required, 174. 
 
 discrimination in fare proper, 175, 176. 
 
 duty to keep office open until departure of train, 176. 
 
 right of access to depot of, 177 et seq. 
 
 liability of president for acts of agent, 179, 180. 
 RAPE, 
 
 action for in New York, 183. 
 REAL ESTATE, 
 
 inquiry where wrongful acts are done upon, 45, 46. 
 
 general rule as to liability of owner of, 46, 47, 48.
 
 INDEX. 689 
 
 REBELLION, 
 
 is no excuse that act was done under law of State engaged in, 25, note. 
 RECEIPT, 
 
 genuineness of, need not be investigated by officer, 440. 
 
 illegal tax not waived by, 498, note. 
 RECEIPTOR, 
 
 of property attached may maintain trespass, 519. 
 RECORD, 
 
 of conviction of assault and battery, when evidence, 224, 233. 
 
 determining question of possession, 227. 
 
 proof of time must correspond with, 617. 
 RECOVERY, 
 
 when a bar to an action, 62 and 62, 63, note., 74, 75. 
 
 in suit brought before removal of property, not a bar, 598. 
 
 eflfect as a bar in replevin, 598, 599, 600. 
 
 not barred by agreement of, one of two joint owners, 562, 563, note. 
 
 not prevented by settlement with one of two partners, 566, note. 
 RELATIVE RIGHTS, 
 
 injuries to, included in trespass, 1. 
 RELEASE, 
 
 of one of the cotrespassers, 72, note^ 73, 74, 100. 
 
 upon payment of part of demand, 74, note. 
 
 where the person released was not liable, 74, note. 
 RELIGIOUS MEETING, 
 
 person disturbing may be removed, 158, 159, 268. 
 REMEDY, 
 
 upon judgment when lost, 74, 75. 
 
 given by statute, when party confined to, 75. 
 
 for non-joinder and misjoinder of parties plaintiff, 79, 80. 
 REPLEVIN, 
 
 liability of officer in executing writ of, 436, 437, 438. 
 
 efiect of recovery in, as a bar, 598, 599, 600. 
 
 plea of justification in, must allege the giving of a bond, 610. 
 REPLICATION, 
 
 abuse of authority must be set forth in, 85. 
 
 what it should contain, 87, 88, 612, 613. 
 
 when acts may be replied to separately, 87, 88. 
 
 when double, 89. 
 
 when required to be special in assault and battery, 216. 
 
 when deemed bad in assault and battery, 217, 218, 
 
 to plea in false imprisonment alleging breach of the peace, 337. 
 to plea in false imprisonment justifying under process, 337 et seq. 
 tender and refusal of bail, 339, note. 
 
 in action for taking goods, 612,613. 
 
 when excess must be shown in, 613, ' 
 
 defect in, when cured by verdict, 613, 614. 
 in action for goods, when required to be special, 613, note 
 REPLY. See Replication. 
 
 Vol. I.— 44 . '
 
 690 INDEX. 
 
 RESTITUTION, 
 
 sentence of, evidence of illegal seizure, 615. 
 RETURN, 
 
 must set forth officer's doings, 317, 318, 336. 
 
 how far evidence in officer's favor, 319. 
 
 officer not liable for omission or mistake in, 475, note. 
 
 what was done under warrant to be proved by, 627, 628. 
 
 is not evidence to excuse non-performance, 637. 
 
 when to be objected to by plea in abatement, 627, note. 
 * cannot be contradicted, 628. 
 
 evidence that attaching officer did not remove property does not con- 
 tradict, 629, 630. 
 
 not evidence for officer when not directed by statute, 630. 
 RIGHT TO BEGIN. See Tkial. 
 RIGHT OF WAY. 5ee Way. 
 ROCKS, 
 
 injury caused by blasting, 35. 
 
 SABBATH. See Sunday. 
 
 sale. 
 
 of goods while mingled with those of another, 365, 366. 
 
 of goods by one having the mere possession, 367. 
 
 of goods by sheriff, mere purchaser at, not liable, 399. 
 
 causing wrongful, by indemnifying officer, 400,401. 
 
 goods may be retaken by seller upon forfeiture of condition, 403. 
 
 infant upon rescinding, may retake goods, 405. 
 
 goods sold upon credit cannot be retaken, 405. 
 
 purchaser at, no right to take property against command of officer, 443, 
 
 note. 
 property bought at, may be left with defendant, 445. 
 of goods of tenants in common under execution, 459, 460. 
 
 of partnership property, 460,461. 
 
 of mortgaged goods, 461,462. 
 
 officer must give notice of time and place of, 465, 466, 467. 
 
 officer not liable for improper postponement of, by request of debtor, 
 467,468. 
 
 when made contrary to the statute, is void, 466, note, 468, note. 
 
 made after sunset is void, 467, note. 
 
 insufficient notice of, not cured by adjournment, 468, iwte. 
 
 immediate, of distress, not permitted, 504. 
 
 effect of collector of taxes purchasing at, 505. 
 
 of subsequently acquired property, vendee of cannot maintain action, 
 542, note. 
 
 conditional, action in case of, 554, 555. 
 
 of entire chattel by tenant in common, 562. 
 
 hona fide purchaser not liable to action, 567, 568. 
 
 vendee must show rightful possession, 568, 569, 570. 
 
 in maiket overt, effect of, at common law, 568, note. 
 
 fraudulent, right of owner of goods to them in case of, 570. 
 
 when void as to creditors, 571 et seq.
 
 INDEX. 691 
 
 SALE — continued. 
 
 duty of buyer to give notice of, 577, 578. 
 
 when vendee may employ vendor to make, 579. 
 
 question as to v^hether or not it is fraudulent, is for the jury, 620. 
 
 fraudulent, eflfect of proof of, 621. 
 
 fraud in, as against attaching creditor, 626, note. 
 SATISFACTION. /See Recovery ; Settlement. 
 SCHOLAR. See Pupil. 
 SCHOOL DISTRICT, 
 
 illegal collection of tax by trustees of, 57. 
 
 not embraced in statute of Massachusetts exempting assessors, 495, 496. 
 
 trustees of, liable in Rhode Island, 496. 
 
 limits of, how defined by towns in Massachusetts, 496, note. 
 
 liability and duty of trustees of, in New York, 497, 498. 
 
 insufficient description of, 503, note. 
 SCHOOL HOUSE, 
 
 liability of minors for entering when forbidden, 41, note. 
 SCHOOLMASTER. See Teacher. 
 SCHOOL MEETING, 
 
 acts of, not made void by insufficient description of school district, 502, 
 note. 
 SCHOONER, 
 
 running into and sinking, 35. 
 SECURITY, 
 
 eflfect of exchange of goods when deposited as, 523, 524. 
 
 assignment as, may be otherwise good, though void as to creditors, 527, 
 528. 
 SEDUCTION, 
 
 of daughter, action for, 180, 181, 183. 
 
 remedy for, at common law, 181. 
 
 omission in declaration for, cured by verdict, 183, note. 
 SELECTMEN, 
 
 liability for illegal tax in Connecticut and New Hampshire, 496. 497. 
 SELF-DEFENSE, 
 
 excuses breaches of the peace and homicide, 128, 130, 143. 
 
 must not exceed prevention, 129, 130, 131. 
 
 when injury of bystander justifiable, 131, 132. 
 
 right to protect others, 133. 
 SERVANT. See Master and Servant. 
 SETTLEMENT, 
 
 of claim for damages, 68 et seq. 
 
 with some of several, 71, 72. 
 
 where there are two actions, 69, 70. 
 
 rule as to costs, 70, 71, note. 
 
 by one of several tenants in common, eflfect of, 565, 566, 5G7. 
 
 with one of two partners, 566, note. 
 SEXTON, 
 
 right to eject undertaker, 160, nota.
 
 692 INDEX. 
 
 SHERIFF, 
 
 liable for torts of his deputy, 51, 489, 490, 491. 
 
 election of party to sue, 51. 
 
 relation to deputy, 52, note. 
 
 mere purchaser at sale of goods by, not liable, 399. 
 
 personal property vests in, by execution, 443. 
 
 liable for nonfeasance of deputy, 476, note. 
 
 ground of liability of, for acts of deputy, 491. 
 
 when jointly liable with deputy, 491, 492. 
 
 when dej)uty may maintain action against, 490, note. 
 
 not liable in California for act of his deputy, 491, note. 
 
 may prove judgment in favor of his deputy, 491, note. 
 
 action how brought against for wrong of deputy, 491, 493, note. 
 
 liable for seizing goods in possession of consignee, 548, 549. 
 
 return of, evidence of official acts, 627. 
 
 damages in action against, for seizing goods in transit, 641, note. 
 SHOPKEEPER, 
 
 intrusted with goods, may maintain action for their injury, 554. 
 SILENCE, 
 
 may be tantamount to admission, 233. 
 SPECIAL OFFICER, 
 
 power and duty of, 487, 488. 
 STATE, 
 
 action may be brought by, 80, note. 
 
 laws of, how proved, 92, 93. 
 STATUTE, 
 
 party violating, not entitled to redress, 10. 
 
 of New York, as to right of action in case of felony, 37. 
 
 of New York, as to husband's liability, 40, note. 
 
 of New York and Vermont as to right of executor to bring action, 54, 
 note. 
 
 liability under authority derived from, 55, et seq. 
 
 of Wisconsin, as to action by executor, 55, note. 
 
 jurisdiction prohibited by, cannot be given by consent, 56. 
 
 of New York, disqualifies justice when an innkeeper, 58, ?iote. 
 
 when party confined to remedy given by, 75. 
 
 of Vermont, relative to plea offender, 81, 7iote. 
 
 of New Hampshire, as to costs in actions of review, 109, note. 
 
 of Maine, defining assault and battery, 121, note. 
 
 of New York, relative to action for rape, 182. 
 
 of New York, as to actions between husband and wife, 189, 190, jwte. 
 
 of New York, relative to injuries caused by driver, 190, note. 
 
 when extraterritorial, 195, 196. 
 
 of New York, relative to action by married woman, 201, note. 
 
 of New Hampshire, relative to lumber floated upon land, 381, 382, note. 
 
 of Vermont, exempting wife's property from attachment, 451, 452, note. 
 
 sale made contrary to, is void, 466, 468, note. 
 
 of Massachusetts, relative to impounding beasts, 466, 7iote. 
 
 of Maine, permitting attachment of proceeds of sale, 472, note.
 
 INDEX. 693 
 
 ST ATVT^E— continued. 
 
 of New York, as to custody of stolen property, 484, 485, note. 
 of Massachusetts, as to liability of towns for illegal taxes, 495. 
 giving to towns in Massachusetts power to define school districts, 496, 
 note. 
 
 of New York, as to actions by executors and administrators, 538, 534, 
 note. 
 
 of New York, relative to chattels pledged, 553, note. 
 
 of Connecticut, as to joinder of trespass and trover, 589, 590, note. 
 STATUTE OF LIMITATIONS. See Limitations, Statute of. 
 STEAMBOAT, 
 
 injury by discharge of gun on, 34, 35. 
 STOCK, 
 
 rolling, of railroad company may be attached, 413, 414. 
 SUNDAY, 
 
 definition and origin of, 294, 295, note. 
 SUPERVISOR, 
 
 of taxes in Michigan protected by tax-roll, 504, -not^. 
 SUSPICION, 
 
 probable cause of, in actions for false imprisonment, 346, 347, 348. 
 
 TAX COLLECTOR. See Collector; Taxes. 
 
 TAXES, 
 
 liability of mayor for wrongful collection of, 57. 
 
 illegal collection by trustees of school district, 57. 
 
 supervisor of, in Michigan, protected by tax-roll, 304, note. 
 
 collector purchasing at his own sale, 505. 
 
 liability of collector where goods sold are bought by owner, 505, 506. 
 
 collector in New Hampshire may arrest without searching for property, 
 
 305, 7wte. 
 declaration for arrest on account of, 329. 
 liability of assessors in Massachusetts, 492 et seq. 
 protection accorded to assessors in New York, 495. 
 liability of towns in Massachusetts for illegal assessment of, 495. 
 illegal, liability of selectmen for, in Connecticut and New Hampshire, 
 
 496, 497. 
 
 liability of trustees of school district in the collection of, in New York, 
 
 497, 498. 
 
 when illegal, application need not be made to abate, 498, note. 
 illegality of, not waived by giving receipt, 498, note. 
 liability of collector of, 498 et seq. 
 
 property not to be sold for, until after a reasonable time, 504. 
 sale for, may be private, or at auction, 504. 
 TEACHER, 
 
 chastisement of pupil by, when lawful, 182, 183, 184. 
 supervision of, over scholars, 185. 
 
 right to chastise pupil for acts done at home, 185, 186. 
 of music, cannot lawfully beat chorister, 182, note. 
 evidence of excessive punishment by, 230, note.
 
 694 INDEX. 
 
 TENANTS IN COMMON, 
 
 assault and battery by, 151, note. 
 
 attachment of goods of, 458. 
 
 sale of goods of, under execution, 459, 460. 
 
 right to maintain action against cotenant, 561, 563. 
 
 one may sell his interest, 563. 
 
 effect of sale of entire cliattel, by one, 562. 
 
 joint recovery not barred by agreement of one, 562, 583, note. 
 
 when each may appropriate his share of the property, 563. 
 
 when one may entirely change property, 563, 564. 
 
 implied engagement to divide property, 563, note. 
 
 cannot lawfully diminish value of jiroperty, 564, 565. 
 
 must join in action, 565. 
 
 effect of settlement by one, 565, 566, 567. 
 TENDER, 
 
 plea of, in VeiTQont, 81, note. 
 
 reply as to, 87. 
 
 of bail, when it should be replied to specially, 339, note. 
 
 of goods, will not excuse wrongful taking, 406. 
 THEATER. See Public Amusement. 
 TICKET, 
 
 contract implied by, 167. 
 
 effect of special condition, 170 et seq. 
 
 party bound to surrender, 174. 
 TIMBER, 
 
 inducing another to cut and remove, 24, note. 
 
 what not deemed a participation in the cutting of, 63, 64, note. 
 
 correct instruction as to liability for cutting, 65, 66. 
 
 TIME, 
 
 TOOLS, 
 
 TORT, 
 
 allegation of, in declaration, 77, 78. 
 need not in general be proved, 91, 92, 617. 
 rule of common law as to allegation of, 92, iiote. 
 how laid in action for assault and battery, 205. 
 reasonable, a question of law, 483, note. 
 sale for taxes not to be until after a reasonable, 504. 
 proof of, must correspond with record, 617. 
 
 allegation of, by which recovery may be had for successive trespasses, 
 593. 
 
 were exempt from seizure by ancient law of distress, 411. 
 
 what deemed, 411. 
 
 what not regarded as implements. 412, 413. 
 
 when claim for, assignable, 37. 
 
 assignment of claim for, by wife, 37, note. 
 
 of wife, liability of husband for, 38, 39. 
 
 of wife, arrest for, 39, 7iote. 
 
 of servant, liability of master for, 42 et seq. 
 
 action against innkeeper or common carrier founded in, 382, note.
 
 INDEX. 695 
 
 TOWNS, 
 
 liability of, in Massachusetts, for illegal assessment, 495. 
 
 liability of selectmen for illegal tax in Connecticut and New Hampshire, 
 496, 497. 
 
 limits of school districts, how defined by in Massachusetts, 496, rivtc. 
 
 existence or authority as a corporation, need not be alleged, 610, 611. 
 TREES, 
 
 action for cutting on one's own premises, 34. 
 
 liability of employer for the cutting of, by employee, 47. 
 
 how regarded with reference to fixtures, 373, note. 
 TRESPASS, 
 
 definition, 1. 
 
 includes injuries to relative rights, 1. 
 
 the name of an action, 1, 3. 
 
 words do not constitute, 2. 
 
 language may qualify, 2. 
 
 distinction in actions of, abolished in Delaware, 2, note. 
 
 may be brought in case of injury from want of skill and care, 5, 6, note. 
 
 when to be deemed involuntary, 7, note. 
 
 justified by authority in law, 8. 
 
 judges and jurymen not liable to action for, 8. 
 
 will lie without proof of wrongful intention, 13 et seq. 
 
 inciting or aiding, 22 et seq. 
 ' commission of, by delegating authority, 24, 25. 
 
 ratification and adoption, 27, 28. 
 
 what essential to maintain action, 31. 
 
 when party has a choice of remedies, 32. 
 
 distinction between, and trespass on the case, 31, 32, note. 
 
 when indictable, 33, n^te. 
 
 when consent will not take away remedy, 33, note. 
 
 will lie in case of negligence, 34, 35. 
 
 for cutting down trees on one's own premises, 34. 
 
 for injury to canal-boat, 34. 
 
 for damaging a fishing net, 34. 
 
 for injury by discharge of gun on steamboat, 34, 35. 
 
 for running into and sinking schooner, 35. 
 
 for injury caused by blasting rocks, 35. 
 
 not caused by locating railroad, 34, note. 
 
 cause of action in, not a debt, 34, note. 
 
 for injury to incorporeal right, 35, 36, ?iote. 
 
 is proper remedy for false imprisonment, 328, note. 
 
 for injury which party has no right to do himself, 36. 
 
 not taken away by commission of act with felonious intent, 36, 37. 
 
 minors may be sued for, 41, note. 
 
 entry of school house by minors when forbidden, constitutes, 41, n^ote. 
 
 liability of sheriff for wrongful acts of his deputy, 51. 
 
 action of, against corporations, 52, 53. 
 
 liability of partners, 54. 
 
 action of, by executors and administrators, 54, note.
 
 696 INDEX. 
 
 TB.'ESVAQS-coniinued. 
 
 by the joint hiring of carnage and horses, 66, note. 
 
 by receiving a trespasser, 66, note. 
 
 action of, cannot be maintained against cotrespasser, 67, note. 
 
 damages for involuntary, 103. 
 
 may be maintained for reckless driving, 190, 191. 
 
 will lie against tather for injury of team by son, 191, 192, nofe. 
 
 interference with goods for an instant is, 381. 
 
 need not have been a forcible taking of goods to constitute, 382, 383. 
 
 on personal property defined in North Carolina, 383, note. 
 
 refusal to give uji goods lawfully acquired is not, 382, note. 
 
 taking away property levied on, v.hen enough is left to satisfy execu- 
 tion is not, 384, note. 
 
 may be committed to goods without wrongful intention, 384. 
 
 the taking of goods must have been without permission, 384, 385. 
 
 remedy against second taker, 385, 386. 
 
 interfering with goods after revocation of license, 368. 
 
 no defense that goods were taken with approval of wife, 388, note. 
 
 directing illegal seizure or sale of goods, 390 et seg. 
 
 levy ujjon property of corporation by wrong name, is not, 439, note. 
 
 ab initio, what essential to constitute, 476 et seg. 
 
 seizure as prize, is not, 485, 486. 
 
 possessor of personal property may maintain, 507. 
 
 will not lie when right of property is in another, 509, 510. 
 
 owner cannot bring, when goods are in custody of law, 510. 
 
 general property in goods sufficient to maintain, 512. 
 
 rule as to the right that is essential to maintain, 513 et seg. 
 
 receiptor of property attached, may maintain, 519. 
 
 may be maintained by purchaser of goods against seller, without deliv- 
 ery, 525. 
 
 where goods are taken from officer, 538, 529, 530. 
 
 actions of, in New York, by executors and administrators, 533, 534, note. 
 
 will not lie against bailee unless be has destroyed property, 587, note. 
 
 will not lie against master for injury of property by servant, when, 587, 
 note. 
 
 when declaration will entitle to recovery for successive, 593. 
 
 levy, taking away, and sale constitute single, 593, note. 
 
 may be maintained for liquor sold without license, 596, 597, 598. 
 See Action. 
 TRESPASSER, 
 
 may maintain a,ction for wanton injury, 145, 146. 
 
 forcible removal of, from land, 149, 150. 
 
 person entering an inn to do unlawful act is, 154. 
 
 may become, by refusing to leave place of public amusement, 160, 161. 
 
 TRIAL. 
 
 right to open and close, 90. 
 
 proceeding for one of two injuries not a bar to second action, 602, 
 
 must be where goods were taken, 614, note. 
 
 objections to evidence to be made at, 635.
 
 INDEX. 697 
 
 TROVER, 
 
 conflict of authority as to effect of judgment in, 600, 601. 
 TRUSTEE, 
 
 illegal collection of tax by, 57. 
 liability in Rhode Island, 496. 
 Uability and duty in New York, 497, 498. 
 
 UNDERTAKER, 
 
 right of sexton to eject from church, 160, note. 
 UNITED STATES COLLECTOR, 
 
 sentence of restitution proof of illegal seizure by, 615. 
 UNITED STATES OFFICER, 
 
 acts of, when justifiable, 9. 
 
 VARIANCE, 
 
 waiver of, 101. 
 VENDOR AND VENDEE, 
 
 when deemed in joint possession of personalty, 515, note. 
 
 purchaser may maintain action against seller without delivery, 535. 
 
 when goods sold deemed in constructive possession of vendee, 536, 537. 
 
 action in" case of conditional sale, 554, 555. 
 
 resumption of possession by vendor, 556. 
 
 bonajide purchaser protected, 567, 568. 
 
 vendee must show rightful possession, 568, 569, 570. 
 
 presumption of fraud from continued possession of vendor, 574, 575. 
 
 duty of vendee to give notice of, 577, 578. 
 
 when vendee may lend or employ vendor to sell, 579. 
 
 sale void as to remedy and valid as to possession of vendee, 583, 584. 
 VENUE, 
 
 changed to place of taking goods, 614, note. 
 VERDICT, 
 
 may be general, 110. 
 
 must embrace issue, 110, 111, note. 
 
 when the action is against several, 110, 111. 
 
 when plaintiff entitled to, although the declaration is bad, 111, note. 
 
 when judge may direct entry of, during trial, 113. 
 
 jury may be asked ground of, 113. 
 
 jury may change their mind as to, 118. 
 
 polling jury, 113, 113. 
 
 amendment after, 113, 114. 
 
 new trial when verdict is contrary to, 117. 
 
 in action for assault and battery, 361, 263, 363. 
 VESSEL, 
 
 corporal punishment by master of, 187. 
 
 libel for assault and battery of child, 187, note. 
 
 master of, may maintain action for injury of property, 554. 
 Vol. L-45
 
 698 INDEX. 
 
 WAIVER, 
 
 by not demurring to declaration, 76, note^ 78. note 
 
 of objection on account of variance, 101. 
 
 of irrelevant testimony, 101. 
 
 of right of action, 326, 327. 
 
 by mortgagee of claim under mortgage, 542, 543, 544. 
 
 is question of fact, 585, note. 
 WARRANT, 
 
 officer may be resisted if he do do not show, 192. 
 
 party liable when issued upon insufficient affidavit, 272, 273. 
 
 officer arresting innocent party without, 292. 
 
 may be directed to private individual, 297. 
 
 must contain a command, 297. 
 
 dii-ection material, 297, 298. 
 
 name of party must be correctly stated, 298, 299. 
 
 of commitment, must show grounds, 300, 301. 
 
 misnomer of town in which jail is situate will not vitiate, 300, note. 
 
 informality in, will not make magistrate or officer liable, 300, note. 
 
 duty of officer to communicate substance of, 301, 302. 
 
 to justify officer, need not be founded on affidavit, C04, note. 
 
 signature to, prima facie evidence against magistrate, 341. 
 
 how far collector of taxes protected by, 502, 503, 504. 
 
 the best evidence of what was done by virtue of it, 615. 
 
 what was done imder it to be proved by return, 627. 
 WAY, 
 
 right of, may be proved to show character of act, 341, note. 
 WHAIJFmGER, 
 
 not responsible for goods taken from him by process, 386, 387. 
 WIFE. 8ee Htjsbasd and Wife. 
 WILD ANIMALS, 
 
 how far under the protection of the law, 355, 356, 357. 
 
 bees deemed, 357. 
 
 manucapture not necessaiy to property in, 356. 
 
 to acquire title to fish, they must be under control, 356. 
 
 when property in, arises ratione soli, 357. 358, 7wte. 
 WINE PLANTS, 
 
 when deemed personal property, 373, 374, note. 
 WITNESS, 
 
 opinion of, not evidence, 91. 
 
 when defendant may be examined as, 94, 95, 96. 
 
 examination of party as, in New York, 94, 95, 96, note. 
 
 when defendant not competent as, 97, note. 
 
 the calling of further, in discretion of court, 100. 
 
 new trial will not be granted to enable party to be, 116, note 
 
 refusing to be sworn before grand jury, 293, note. 
 WORDS, 
 
 do not constitute trespass, 2. 
 
 when proof of, proper, 2. 
 
 in case of threatened assault, 124.
 
 INDEX. 699 
 
 WORDS— co7iHnued. 
 
 characterizing coudnct as to malice, 239. 
 
 admissible in mitigation of damages for assault, 236, 237, 238. 
 WOUNDED FEELING, 
 
 damages for, in assault and battery, 249, 250, 251. 
 
 party not entitled to recover for mental suflfering of wife, 251, note. 
 WRIT, 
 
 of replevin, liability of officer in executing, 436, 437, 438. 
 
 original, officer having execution need not inquire into service of. 438. 
 439, 440. 
 WRIT OF ERROR. &<? Error. 
 WRONG-DOER, 
 
 indemnity of, 28, 29, 30, 67, note. See Jolnt Wrong-doers. 
 
 END OF vol. I.
 
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