Lovejoy v. Jones

Woods, C. J.

McCoy’s possession of the ox for a period not fixed by the contract of bailment, was terminable at the will of the plaintiff, or by any act of his own that should indicate a purpose of putting an end to the character or relation of bailee, in which he held the chattel. The act of sale was of that nature. It changed the nature of his possession from that of a bailee to that of a wrong-doer, (Sanborn v. Coleman, 6 N. H. Rep. 14 ,) and the delivery to the defendant under the sale, gave him no better or more rightful title to it. It was not one of those cases in which one, holding the chattel of another, can confer a better title than his own, as against the real owner, by reason of any power involved in the nature of the trust and confidence reposed.

The chattel was lent to McCoy, and he had no authority to put it into the hands of another, for any purpose inconsistent with that tenure of it.

The purchase and use of the chattel by the defendant amounted to a conversion, according to all the authorities, and no further evidence was required to lay the foundation for an action of trover. Hawkins v. Doty, 6 N. H. Rep. 247 ; Hyde v. Noble, 13 N. H. Rep. 494 .

But a demand, if required, is sufficiently proved to have been made by Mr. Foster, in behalf of the plaintiff, before the action was commenced, by the clear admission of the defendant. White v. Demary, 2 N. H. Rep. 546 , and authorities there cited.

By chapter 181 of the Compiled Statutes, provision is made for referring actions to commissioners, and the powers and duties of the commissioners, in such cases, are defined.

By section 32 of that chapter, power is given the commissioner, upon the request of either party, to examine the other party, as a witness in chief; and “ upon the request of either party, the other party may be examined as a witness in chief at any trial by jury.” The section next following designates the conditions upon which the case may be tried by jury.

The whole of the chapter from section 29 to section 37, in- *170 elusive, relates to the subject of referring actions to commissioners, and to proceedings consequent upon such reference, ánd to no other subject whatever, and to no other actions except such as may be so referred, unless the clause cited from the 32d section be considered to form an exception.

We think that such is not the case, and that it must be taken to refer to the subject-matter of the context exclusively.

We think it could scarcely have been the intention of the Legislature to distinguish a chapter having for its principal object to make provision for the trial of causes before commissioners, by the interpolation of a single sentence, changing an ancient and well established and highly important rule of evidence. Nor do the words of the statute demand any such construction. The section describes the terms upon which parties may be required by their opponents to testify as witnesses in chief, in actions actually referred to commissioners.

By referring the action to the commissioner, the parties are liable to be made witnesses by their opponents. Upon a subsequent trial before the jury, it seemed reasonable that the same evidence should be accessible to the parties as before ; and that a party having once tried the effect of a discovery, should not, if disappointed in its results, enjoy the privilege of a second trial without the prejudice that might result from his omission to lay the same before the jury. And that a party, having lost his case before the commissioner, by reason of his own discovery, should not, by appealing to a jury, stand upon better ground. The statute has plainly gone thus far in changing the rules of evidence, but we think it was not designed to change the rule as applicable to other forms and modes of trial.

We think that on both points made in the case, the ruling of the court was correct, and there must accordingly be Judgment on the verdict.