Stone v. Proctor

| Vt. | May 15, 1824

Aikens J.

delivered the opinion of the Court.

Justices’ Courts in this State, are Courts of record. If a Justice of the Peace should refuse to record, or to certify his record of any cause by him tried, of which he has jurisdiction, this Court have power to compel him; but when once the record is produced, it has the same conclusiveness between the parties, as the record of any other Court. The act fixing the time within which actions must be entered in Justices’ Courts, is directory to the Justices. Of the actual time when actions are entered, they are necessarily the judges, in the first instance. If the party is dissatisfied, he may plead the matter in abatement, and have the fact found by a Jury. But. if he waive it, and plead to the merits of the action, he is, and ought to be, bound by his election. Nor does such an objection become a part of the record, unless it is presented by a plea, that it may be answered and the issue found. The Justice did right therefore, in not incorporating the objection in his record.

There is no principle in pleadings better settled, than that where a subject matter of abatement has been waived, and a plea put in to the merits of the action — the cause for abatement cannot after-wards be resorted to. No plea in abatement having been filed before the Justice, none could be received before the County Court. And the motion to dismiss, for that cause, can only be regarded as an attempt to avoid a salutary and well settled principle of law.

A motion does not admit of an issue and finding by a Jury. To permit a motion effecting the destruction of the suit to be predicated upon the suggestion of new facts, would be an infringement of the right of trial by Jury. There was no error, then, in the rejection of the motion to dismiss.

As to the second error assigned, in the absence of precedent and settled authorities, it becomes the duty of the Court to resort to principles, and establish such rules as will be most salutary in practice, and best answer the purposes of Justice.

The distinction between real and personal estate, though of the utmost importance, and obvious enough in most cases, is, nevertheless, artificial, and in some instances, difficult in its application. Indeed, the same substance is, at different times, classed with the one or with the other, depending on its local situation, conformation, use, or other accidental qualities.

The dung of domestic animals, which is the species of manure for which this action was brought, is a substance, which may, perhaps, be ranked with either class, without violence to the general rule. In new countries, where the soil is rich and strong, it is of no value ; and its accumulation in a yard or about a stable, is regarded as a nuisance by the proprietor. Where the soil is sterile or much worn, it becomes an article of value. But so do many other decayed vegetable substances. Yet, it can hardly be contended, that when the original soil becomes exhausted from long tillage, the vegetable moulds become pari passu personal estate, because they acquire a fictitious value, from that circumstance, as a manure. The fact that the original substances were severed from the soil before being eaten by the animals, furnishes no argument. When it is voided by the animals, it has done its office, and is returned to the earth whence it came — as much so, as the leaves of the trees which are severed and decomposed by the hand of time. And it is not perceived why the herding of animals, which compels them to drop their manure within a small compass, so as to make it of easier collection than when voided about the fields, should change its character. It is nevertheless worse than useless, except as a soil. As such, it is most valuable on the premises where it is made. It is generally needed there. Its cumbersomeness and the wasting nature of its valuable properties, render it of little or no use to transport to a distance. Its analogy to other decomposed vegetables which are unquestionably of the freehold, and pass with it by deed, and the policy of the rule as applicable to rural economy, induce the Court to decide that the manure of animals being in the yard and at the stable-windows in the state in which it usually accumulates, is part and parcel of the freehold, and that, as such, it passes with the freehold, by deed.

It was said in the argument, that there is a case in Stiles, 66, Carver v. Pierce, in which it was decided that manure is personal estate. The case has not been produced in Court, and can afford no light on the subject, unless it should appear what the particular situation of the manure was. There is no doubt but that any portion of the freehold becomes quasi personal estate, by severance and removal. A load of clay, sand or stone, when in the market, or detached, collected and secured, with a view to some particular use, is, till again attached to the earth by the use intended, personal estate, and, as such, may be the subject of theft or trover.

The third exception is, that said Court refused to charge the Jury, that if they should find that the severing said manure from the freehold, and the carrying the same away, was one continued act, trover would not lie for the same; but did charge said Jury, that even if they should so find, yet trover would lie.

On this subject it is only necessary to observe, that the case proved, as stated in the bill of exceptions, did not require that this question should be decided. The request, that the Court should charge the Jury on the hypothetical point, here stated, was imper-tiner,t- And, whether the charge of the Court was right or wrong, jn reiati0n to it, is equally immaterial. If the facts should supPort ver(bct, in law, it is sufficient. A right judgment can never be reversed because it was rendered upon wrong reasons. True reasons must nevertheless exist, and the result cannot be changed.

It appears then from the case, as stated in the bill of exceptions, that the plaintiff in error, during two or three of the last days, in which he had liberty to remain on the farm, after the sale, collected this manure and carried it off from the premises, and placed it in a heap on the land of Mr. Tuttle, a near neighbor ; and that more than a month afterwards, he sold it to his own use.

The stripping the farm of the manure, was an act not authorized by the licence to remain on the place till April. It was tor-tious and in the nature of a trespass. But a trespass does not give to the trespasser the right of property. That remains in the original owner, so long as the substance remains and the same can be identified. The manure was as much Proctor’s, after being wrongfully heaped up on the land of Tuttle, as it was before. That an action of trover will lie for the subsequent conversion, by the sale of the manure in the month of May, is a proposition too clear to need elucidation.

The judgment of the County Courtis, therefore, affirmed, and interest on the amount of that judgment is adjudged to the defendant in error, as additional damages for his delay, with costs.