Rogers v. Clough

| N.H. | Dec 5, 1911

The plaintiffs concede that as to them the defendants' title is good, but contend that they should not be compelled to pay the loss caused by their unlawfully preventing the defendants from removing the timber, because, as they say, there are persons who might legally have done what they did. They neither defend through these persons nor contend that these persons have any claim against them because of the injunction. If there is a rule which permits a person to do, without incurring liability, whatever any one may legally do (Jenkins v. Parkill, 25 Ind. 473" court="Ind." date_filed="1865-11-15" href="https://app.midpage.ai/document/jenkins-v-parkhill-7037051?utm_source=webapp" opinion_id="7037051">25 Ind. 473), it does not obtain in this jurisdiction. Beach v. Morgan, 67 N.H. 529" court="N.H." date_filed="1893-12-05" href="https://app.midpage.ai/document/beach-v-morgan-3549799?utm_source=webapp" opinion_id="3549799">67 N.H. 529, 531. In this state a person must defend in his own right. Roberts v. Rowe, 75 N.H. 36" court="N.H." date_filed="1908-10-06" href="https://app.midpage.ai/document/roberts-v-rowe-3556204?utm_source=webapp" opinion_id="3556204">75 N.H. 36. He cannot defend in the right of others unless he claims through them (Fowler v. Owen, 68 N.H. 270" court="N.H." date_filed="1895-06-05" href="https://app.midpage.ai/document/fowler-v-owen-3553261?utm_source=webapp" opinion_id="3553261">68 N.H. 270, 272); and this seems to be the general rule, in so far, at least, as actions of this kind are concerned. Slack v. Stephens, 19 Col. App. 532; 22 Cyc. 1042. The question whether the plaintiffs might have shown that others were making such persistent claims to the land that it is improbable the defendants would have cut the timber, even if they had not been enjoined, is not raised and has not been considered.

The injunction was granted on condition that the plaintiffs give "a bond with sufficient sureties in the sum of $500, to answer to said defendants for any loss, cost, damage, or expense to which they may become subject on account of said suit or this injunction." If it were not for this order, the defendants' recovery would be limited to their taxable costs. On the other hand, procuring the injunction bound the plaintiffs to comply with the conditions on which it was issued. Consequently the order limits both the amount the defendants can recover and the items of expense which are chargeable to the plaintiffs. In other words, the amount the defendants can recover in excess of their taxable costs and the items which compose it both depend on the terms of the order. If the language the court used is given its ordinary meaning, or for that matter any meaning of which it is fairly capable, the defendants must have understood that they could not recover more than $500 in case the plaintiffs failed; for the decree provides that the plaintiffs are to answer to them in that sum — not to pay whatever "loss, cost, damage, or expense" they may sustain. The decree provides in terms that the plaintiffs are to answer for any expense to which the defendants may become subject on account of said suit. Therefore the court did not err when it refused to limit the costs of suit to $15, nor when it limited the defendants' damages to $500.

Exceptions overruled: case discharged.

All concurred.