153 Mass. 171 | Mass. | 1891
The following opinion was prepared by Mr. Justice Devens, and was adopted as the opinion of the court after his death by the Justices who sat with him at the argument.
We have no occasion to consider whether the rabbits, for the conversion of which this action is brought, were unlaw
Even if the taking of the rabbits was unlawful, yet, the possession of them being illegal, it is the contention of the defendant that the plaintiff cannot avail himself of this illegal possession to maintain the action. In Commonwealth v. Rourke, 10 Cush. 397, it is held to be well established at common law that property unlawfully acquired may, nevertheless, be the subject of larceny; and it is said that “ even he, who larceniously takes the stolen object from a thief whose hands have but just closed upon it, may himself be convicted therefor, in spite of the criminality of the possession of his immediate predecessor in crime.” In Commonwealth v. Coffee, 9 Gray, 139, where the article stolen was intoxicating liquor, purchased in violation of the statute of Massachusetts, and intended to be sold in violation of the act, it was held to be the subject of larceny. Even, therefore, if, as we have assumed in the case at bar, the plaintiff might have forfeited and lost his property if it had been seized upon proper legal process, and it had appeared that it was kept for an illegal purpose, he was only to be deprived of it upon such proof, and by the methods which the law points out. In the plaintiff’s hands the rabbits were still property, even if unlawfully kept for sale. If deprived of them by a wrongful seizure, the party taking them should be made responsible to him for their value.
Exceptions overruled'.