Dexter v. Cole

By the Oourt, Colts, J. We have no doubt but the action of trespass would lie in this case. In driving off the sheep, the defendant in error without doubt unlawfully interfered with the property of Dexter; and it has been frequently decided, that to maintain trespass de bonis asportatis, it was not necessary to prove actual forcible dispossession of property ; but that evidence of any unlawful interference with, or exercise of acts of ownership over, property, to the exclusion of the owner would sustain the action. (Gibbs vs. Chase, 10 Mass. 128; Miller vs. Baker, 1 Met., 27; Phillips and Brown vs. Hall, et al., 8 Wend., 610; Morgan vs. Varick, Id., 587; Wintringhouse vs. La Foy, 7 Cowen, 735; Reynolds vs. Shuler, 5 Id., 325; 1 Chitty Pl., 11th Arner. Ed., 170, and cases cited [322] in the notes.) Neither is it necessary to prove that the act was done with a wrongful intent; it being sufficient if it was without a justifiable cause or purpose, though it were done accidentally, or by mistake. 2 Green. Ev., section 622; Grulle vs. Snow, 19 J. R., 381. There is nothing inconsistent with these authorities in the case of Parker vs. Walrod, 13 Wend, 296, cited upon the brief of the counsel for the defendant in error. Upon the other point in the case, we think there was some evidence to support the verdict of the jury, and therefore the judgment of the justice should not be reversed because the proof was insufficient. It was the province of the j ury to weigh the evidence and determine what facts were established by it, and the county court ought not to reverse the judgment, because the proof was not sufficient in its opinion to justify the finding of the jury. The judgment of the county court is therefore reversed and the judgment of the justice affirmed.