62 N.H. 388 | N.H. | 1882
The question is not whether the plaintiff might have maintained trespass qu. cl., but whether he can maintain trespass in this county for taking possession of and injuring his building situated in Belknap county. The declaration is for trespass to a chattel, and alleges that the defendant "with force and arms broke and entered the Concord tent, being the personal estate of the plaintiff, situate in Alton in our county of Belknap, on the camp-meeting ground, so called, and then and there, with force and arms, broke and entered the rooms, apartments in said Concord tent," c. Whether the ancient reason for the distinction between transitory and local actions has not to some *391
extent ceased it is unnecessary to inquire, for it cannot be denied that the law has settled the distinction, and that the action trespass qu. cl. is local. Doulson v. Matthews, 4 T. R. 503. But in this case the building, having been erected by one person upon land of another under a parol license, is personal property (Dame v. Dame,
The award was as follows: "Mrs. Burleigh shall make out and execute a bill of sale of all, her right, title, and interest in and to the Concord tent, — to wit, fifteen shares of the stock, — and that said T. H. Ford shall pay her therefor the sum of $2 per share, and that, in addition thereto, said Ford shall pay said Mrs. Burleigh the sum of $1.90; and the board of referees further find that said Ford holds and controls all of the remaining shares making up the balance of the old stock; and the board of referees further find that said Mrs. Burleigh shall immediately quit the Concord tent in a quiet manner, and that all parties shall not further trouble the matter by discussion." In a former suit between these parties it was held that the award did not exceed the submission. Ford v. Burleigh,
The parties are equally bound by it. The plaintiff was bound to pay, and could have been compelled to pay, the sum of $2 per share for the defendant's fifteen shares, whether owned or controlled *392
by her, without further inquiry into the question of ownership or title. The parties had litigated that question before a tribunal of their own choosing, and it was no longer an open question between them. On the other hand, upon the tender by the plaintiff of the sum of $31.90 to the defendant, the arbitration and award vested the title to the defendant's interest and property in the tent in the plaintiff. The requirement that she should execute a bill of sale was unnecessary. The tent being personal property, no deed or memorandum in writing was necessary to pass the title (Ford v. Burleigh,
Since the award was published it appears that the defendant has purchased three of the original shares. The doubt which at first existed, whether these three shares were a part of the thirty-five shares found by the award to be owned and controlled by the plaintiff, is removed by the amended case, which shows that at the time of the hearing and award the defendant in fact owned but eight shares, and controlled none; that there were seven shares which neither the plaintiff nor the defendant owned or controlled; and that the three shares purchased by the defendant after the hearing were three of the seven shares owned by others. The only fact important to know is, whether the three shares were part of the plaintiff's thirty-five, and it is immaterial whether the defendant did or did not own or control them at the time of the hearing, for it appears from the case reserved at the October term, 1881, and made a part of this case by reference (reported in
The plaintiff is entitled to judgment on the verdict in the first suit, and to the injunction prayed for in the second suit.
Exceptions sustained.
ALLEN and CLARK, JJ., did not sit: the others concurred. *393