4 N.H. 104 | Superior Court of New Hampshire | 1827
It is very clear, that a judgment founded upon an imperfect verdict is erroneous, so that the only question to be determined in this case is, whether all the matter necessary to entitle the plaintiff in the original suit to judgment can be collected from the verdict returned. We have attentively examined the verdict. It is expressly found that the waggon was not the property of Balster, but was the property of Kingsbury ; and we think it may be collected from the finding that Holman took the waggon ; and if from the finding that Holman took the waggon of Kingsbury it must be necessarily inferred that Holman was guilty of a trespass to Kingsbury, the verdict is sufficient.
But no such inference is to be necessarily concluded from the verdict. The waggon may have been the property of Kingsbury and may have been taken by Holman and still no wrong have been done, for which Kingsbury could maintain an action of trespass. The waggon might have been bailed to Balster by Kingsbury for a term of time which had not expired when it was taken, in which case Kingsbury, not having any possession either actual or constructive, could not maintain trespass. 1 N. H. Rep. 110, Clark v. Carlton. It might possibly have been in the possession of Balster under such circumstances, that although belonging to Kingsbury, it might have been legally taken as the property of Balster.
We are therefore of opinion that the judgment must be reversed, and in order to enable us to render a proper judgment there must be a venire facias de novo, and the cause tried at the bar of this court. 2 D. & E. 125,
Judgment reversed.