Cheswell v. Chapman , 42 N.H. 47 ( 1860 )

Sargent, J.

We think the ruling of the court, in admitting the evidence of the drawing of the second load of hay, was correct. The defendant can not complain that, instead of two suits, or ten suits, if there had been as many loads of hay drawn, he has been charged with the whole in one suit; the breaking being treated as one, and all the damage for all the tearing down of fence and treading down of grass at all the different loads being included. We think the usual course is, where there are several distinct entries of the same close, upon the same day, for the same general purpose, which might each be technically termed a breaking, and where the object is, as in this case, to try some question of right, to bring but one suit; counting on one breaking and entering, and claiming and proving all the damage sustained at all the several entries. No one probably ever knew a trespass charged with a continuando, from one hour or period in a day to some other hour or period of the same day; nor does the law favor the bringing of a multiplicity of suits, especially small ones of trifling amount, where one would as well settle all the questions of right, and the plaintiff could as well recover all his actual damage in one suit as in two or ten. And certainly the defendant can not complain of this, though, perhaps, he might have done so with some reason, had the opposite course, the one he here suggests, been pursued.

The instructions to the jury, which were objected to, were so nearly in the words of the opinion heretofore delivered in this case (38 N. H. 14), and in the words of the pleadings, that we see no reason to change them.

A quaere might, perhaps, arise, whether, under all the circumstances of the case, the instructions to the jury, that the fact of Paul Oheswell’s plowing across the alleged passway, if they should find the fact to be so, was strong evidence of the non-existence of the right, should not rather have been a direction to the jury to consider that fact in connection with others, and give it such "weight as they should think it deserved. Because there might be circumstances under which a man who owns the whole of a large field, and had no person’s convenience to consult but his own, might plow directly across his own path, thinking it less trouble to pass over the plowed ground a short distance to the portion of the field beyond it, than to throw out his plow at every furrow, and leave a pass-way in the middle of his plowed land.

Had it been plowed after the partition, then the act might have been, perhaps, considered a denial, by the person thus plowing it, of the right of the other party to pass in this place. But before the partition, when there was no fence where the line now runs, the acts of the owner, in his own field, might not, under certain circumstances, have been very strong evidence of the nonexistence of a way at this place, and, under such circumstances, the instructions may have been too favorable to the plaintiff.

The defendant, in his argument, raises the objection that these replications, one denying the right of way, as pleaded by the defendant, and the others, newly assigning trespasses extra viarn, are bad, or, at least, improper. This exception comes too late. No such exceptions appear in the case, and it appears that these issues, thus raised, have all been joined and tried by the jury, and a verdict returned, all without objection.

But even if the objection had been made seasonably, it could not have availed the defendant. Part of the fence may have been taken down in the passway, and the defendant may be justified for doing that; and some may have been taken down out of the way, and that would not be covered by his justification; and so of the grass trodden down and destroyed, the same may be true. In such cases, where the plaintiff disputes the alleged right of way, and also affirms that the defendant has committed trespasses in other parts of his land, he should traverse the right of way, and newly assign for the trespasses extra viam. 1 Ch. PL 631; 2 Greenl. Ev. sec. 661; 2 Phill. Ev. (4 C. &H.) 199.

It is claimed that the judgment should be arrested, upon the ground that the verdict is not a sufficient finding of the issues. There is no formal defect in the verdict, and if there was, that would not be material. It is not necessary that the verdict should follow the precise language of the issue, but it must be responsive to it, and so expressed as to render it certain that the jury decided the question or questions submitted to them; and any uncertainty on this point is fatal. Coffin v. Jones, 11 Pick. 47.

That case was debt on a bond, and the defendant pleaded (1) non est factum, (2) solvit ad diem, and (3) solvit post diem. Issues were joined on each of these pleas, and the jury returned a verdict that the defendant is not indebted to the plaintiff in manner and form, &c. Wilde, J., in the opinion delivered in the case, says : “¥e think it does not appear, in the present case,'that the jury were agreed as to any one of the issues, for they might have been divided in opinion as to each, and yet have agreed to the verdict returned. Some of the jury, for instance, might have been of the opinion that the deed had not been executed, or that it might have been improperly obtained, but that no payment had been made; while others might be satisfied with the evidence of the execution of the deed and also of the payment. If the jury were thus divided in opinion, they could not agree on either of the issues, yet they would all agree that the defendant was not indebted. It can not, therefore, be ascertained by the terms of the verdict that the jury were agreed as to any one of the issues, so that the verdict is substantially defective and uncertain ; the issues are not found directly nor by necessary implication.”

These remarks are equally true in the present case, and if that verdict was not sufficient in these respects, it is difficult to see how the one in the present case can be so. Por aught that now occurs to us, this verdict might be well enough upon all the first seventeen issues, if there had been no others; for it must be presumed that the plain-, tiff made out all these affirmatively, in order that the defendant should be found guilty. But when the eighteenth and nineteenth issues -were raised and joined, it makes it impossible to tell which issue the verdict finds ; whether it finds that the defendant had no right of way there, and was, therefore, guilty of trespasses in all the acts he did, or whether it finds that the defendant had a right of way, as he claims, but that he was guilty of trespasses outside this way, under the new assignment. The verdict would be well enough upon either of these issues alone; but when both were joined, it became impossible to tell which issue the verdict finds, or to which it applies.

It is not certain that the jury ever agreed upon either issue. Half the jury may have found that there was no right of way belonging to' the defendant, where he claimed it, that his justification failed, and that he was guilty of the •whole ; while the other half may have found that the right of way existed as alleged, and that so far the defendant was justified, but that he committed trespasses extra viam, so that the verdict is entirely uncertain. It would not be conclusive upon , either issue. It does not establish the right of way, nor does it find that there is no such right. It settles nothing. And were judgment to be rendered upon it, it might be reversed upon error.

It is not a case where the court can work the verdict into form, or one where the court are competent to collect the meaning of the jury from the terms of the verdict, because it is impossible here to tell, even by argument or inference, which issue the jury intended to find, or whether they in fact agreed upon either of them. And though one verdict may be a sufficient finding upon several issues (Porter v. Rummery, 10 Mass. 66) as it might have been in this case, probably, upon the first seventeen issues, had there been no new assignment, still, as the case now stands, the verdict is not only insufficient for the two issues referred to, but is entirely uncertain as to either. For this cause, the motion in arrest of judgment must prevail.

For although a verdict which is informal, and does not find the issue in terms, will be sufficient, if a finding of the matter in issue can be concluded out of it, yet if it be so uncertain that it can not be clearly ascertained whether the jury meant to find the issue or not, or what issue they meant to find, and when the verdict, as in this ease, could not be conclusive upon either issue, it is bad. Thompson v. Button, 14 Johns. 84; Hodges v. Raymond, 9 Mass. 316; Porter v. Rummery, ante; Jewett v. Davis, 6 N. H. 518; Stearns v. Barrett, 1 Mason 170; Brunswick v. McKean, 4 Greenl. 508; Coffin v. Jones, 11 Pick. 47; Pettes v. Bingham, 10 N. H. 514; Allen v. Aldrich, 27 N. H. 63.

A new trial granted.