Howes v. Shed , 3 Me. 202 ( 1824 )

Mfxlen, C. J.

delivered the opinion of the Court.

This case comes before us on an exception to the opinion of the Court of Common Pleas as delivered to the jury. The opinion is expressed in general terms, but we must understand it as having reference to the, particular facts on which it was founded. The latter instruction to the jury seems not to be important ; because there are no facts in the case shewing or tending to shew that Shed took up the log and converted it to his own use. The proof is that he did not take up the log ; but that he purchased it of Patten, who did take it up, and disposed of it to Shed. The only question then is, whether the former instruction to the jury was correct. The case finds that Patten, when he sold it to the defendant Shed, informed him by what means he had obtained it. It seems he obtained it unlawfully, and without any legal authority disposed of it. Such a disposition of the log so obtained, rendered Patten liable to the penalty of the law, inasmuch as what he did, was done understandingly, and with the evident intention to make a profit out of the illegal appropriation of the property, — and the defendant, by purchasing the log under such circumstances, and with full knowledge of the illegal mode by which Patten obtained it; and his actually disposing of it after-wards, rendered him equally guilty with Patten; and the plaintiffs might have maintained an action against Patten and the defendant jointly upon the evidence before us, the whole appearing to have been one transaction. But as the action, though sounding in contract, is founded on a tort, and torts may be considered as joint or several, the present action is well brought against the defendant only. Boutelle v. Nourse 4 Mass. 431. Frost & al. v. Rowse 2 Greenl. 130. And the evidence maintains the action. The case would be otherwise if Shed had fairly purchased the log, without any knowledge of the illegal; manner in which Patten obtained it; but this knowledge connects the defendant with the wrong of Patten, and subjects him to the consequences of such connection, and the penalties of the statute. We are of opinion that the first instruction of the Judge to the jury was incorrect. The exception is allowed — the judgment of the Court- of Common Pleas must be set aside ; and a trial may be had at the bar of this Court.