Hill v. Morey

The opinion of the court was delivered by Eedeield, Ch. J. I. The first objection taken in this case, by way of motion to dismiss, on the ground, that no proper minute of the time of issuing the writ, was made by the authority signing the same, coming, as it did, only at the time of trial by the jury, has been more than once decided, by this court, to be out of time. Wheelock v. Sears, 19 Vt. 559. Pollard v. Wilder, 17 Vt. 48. The plea of not guilty, is regarded, as a waiver of all dilatory defences, and this, under the present statute, is so regarded; such defences must be presented at the first term, and before pleading to the merits. II. The other objection depends a good deal upon the construction of the testimony. It is a small cause and seems to have been pretty thoroughly tried, in the county court, and we have not been able to see very clearly any error in the trial. Sturdevant,} although a volunteer, seems to have undertaken the office of a servant to the defendant pro hac vice, and to have been suffered to proceed in his service, without objection, or any other restriction,, except to be careful not to cut trees standing upon the plaintiff’s land; but he di.d cut trees on the plaintiff’s land, negligently, and for want of proper information, and upon every principle of the relation of master and servant, the defendant must be regarded, as liable for the act. If one could always excuse himself from liability for the acts of his servant, by giving such instructions, the liability would be reduced to cases of express assent. And in the present case, the act being done, in the presence of the defendant and for his benefit, and he not dissenting, in any manner, must be regarded, as assenting. As the evidence stood, there could be no reasonable doubt of defendant’s liability for the acts of Sturdevant, upon either of these grounds, and we think, the case was correctly submitted to the jury, upon both grounds. III. The other point made is certainly presented, with a commendable degree of ingenuity, but we cannot perceive that it, amounts to anything more, than testimony having some supposable tendency to show, that the plaintiff might himself have misled the defendant, as to the exact location of the dividing line between [184] them. If this were so, the parties would thus for the time, be laboring under a mutual mistake. The most we could make out of this is a license to the defendant, to occupy the land, as his own. It would not make it so, unless the occupation continued fifteen years. The permission would be revocable, at any time, upon the plaintiff’s discovering the mistake. What is this then more than a license to defendant, to do all the acts he does do, until the license is revoked ? It is true these acts are not trespasses, but lawful acts. But in order to have that so appear, it must he proved, for in the law, de non apparentibus, et non existentibus eadem est ratio. And to be.proved it must come in under the proper issue. And as a license cannot be shown under the general issue, and no other issue is formed in this case, it is the same, as if no such proof existed, or was offered. We do not perceive how this case differs from what it would be, if the plaintiff in terms had given permission to do the act complained of, and in that case confessedly no defence could be made under the general issue. Judgment affirmed.