2 N.H. 135 (N.H. 1819), Sinclair v. Tarbox

Citation:2 N.H. 135
Opinion Judge:WOODBURY, J.
Party Name:JONATHAN SINCLAIR v. DAVID TARBOX.
Attorney:J. Bell, counsel for the plaintiff. Nelson, for the defendant.
Court:Superior Court of New Hampshire
 
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Page 135

2 N.H. 135 (N.H. 1819)

JONATHAN SINCLAIR

v.

DAVID TARBOX.

Superior Court of Judicature of New Hampshire.

November, 1819

Trespass and case are sometimes concurrent remedies; and though the latter would be more proper under certain circumstances, yet the former remedy, if attempted, is to be supported wherever a tort has been committed on property, in which the plaintiff has an interest and possession actual or constructive.

When a sheriff delivers property to a receipter, and the receipter delivers it to a third person, whose servant removes and leaves it at a distance, trespass lies against the servant, though ignorant, at the time of the removal, of the sheriff's interest in the property.

The rule of damage, however, is not the value of the property, unless the defendant converted it to his own use; but merely the injury caused by such removal of it.

THIS was trespass de bonis asportatis, for a sleigh and harness.

At the trial here in May last, on the general issue, it appeared in evidence, that the plaintiff, being a deputy sheriff, by virtue of a writ of attachment against one Ford, seized the property described in this declaration, and delivered it on receipt for safe custody to one D. E. : that a few months after, D. E. having occasion to be absent, requested his brother J. E. to keep this property for him till wanted by the plaintiff; and that thereupon, J. E. soon absconded to the state of New-York, and the defendant in his employ drove thither, and left the sleigh in dispute; but was altogether ignorant of the plaintiff's interest in the same.

On these facts a verdict was taken for the value of the sleigh, subject to further consideration.

J. Bell, counsel for the plaintiff.

Nelson, for the defendant.

WOODBURY, J.

In this case the first objection is to the form of the action.

But the inclination of courts should be to prevent the delay, inconvenience and cost of another action, whenever the present one has merits, and can be supported on any fair construction of legal principles.1

On the facts of this case, trover is the more usual remedy, and would certainly have been safer.2 But trespass also will lie if a tort has been committed, and the plaintiff having an interest in the sleigh, had also an actual, or the right to an actual possession of it. 1 N.H. 110, Clark v....

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