Ogden v. Riley

The opinion of the court was delivered by Hornblower, C. J. The words charged to have been spoken by the defendant, in the first count, are “John Ogden has stole my marie;” in the third count, the words are the same, with a little variation in the inuendo; and in the fifth count, the words are, “ You are a thief, you have stolen my marie.” To these three counts there is a general demurrer, and a joinder therein. Marie is a substance known, eo nomine, in the law. It is a kind of earth or mineral, (4 Jac. Law Dict. 242) and in its natural state, is a part of the freehold. There is nothing in the declaration to shew, that the marie spoken of, and said to have been stolen, had been previously dug up, or severed from the land or freehold. That which is annexed to, and constitutes a part of the freehold, is not the subject of larceny ; and to charge a man with stealing that which cannot be stole, is not of itself, actionable. So to say “ You are a thief, you stole my trees,” or “ You are a thief for you stole my trees,” or, “ and you stole my trees,” is not actionable ; for by trees, when spoken of by that name, and not described as cut down or separated from the land, the law intends, trees standing or growing. When cut down or severed from the land, they become wood or brush, and may be the subject of theft. Smith v. Ward, Cro. Jac, 674; Baker v. Pierce, 6 Mod. 23. So, “ He is a thief and stole my furze,” or “ He stole iron bars out of my window,” are not actionable for the same reason. 1 Com. Dig. 267, F. 4. Formerly, a distinction was made between saying, “You are. a thief, you have stolen” or “ and have stolen my trees,” and saying, “You are a thief, for you have stolen, &c.” But latter [188] opinions make no difference, if the words were spoken at the same time. Smith v. Ward, Cro. Jac. 674. The'words in the fifth count, are “You are a thief, you stole my marie.” The latter words are explanatory of the former; they were all spoken at once, and the word “ for” is as distinctly understood, as if it had been used. 1 Com. Dig. 207, F. 15 & 16 ; 8 Arch. and Christ. Bl. Com. 116 in note. As therefore marie in its natural state, is part of the land, and as it is not shewn in the declaration that.the words were spoken in reference to marie dug up, or severed from the freehold, I am of opinion the demurrer is well taken. At the same time, I confess if this was a new question, my reason might lead me to a different result, especially since the old rule, that words are to be taken in mitiori sensu, has been exploded, and the more rational one adopted, that the words are to be taken in their plain and obvious meaning, in which the rest of the world naturally understand them. (Roberts v. Camden, 9 East. 93; Republic v. Keating, 1 Dall. R. 114; Rue v. Mitchell, 2 Dall. R. 58 ; Brown v. Lamberton, 2 Bin. R. 34. If a man says, “ A is carting my marie,” every body understands by it that the marie he is carting, has been dug up and separated from the land, and they so understand it, because it cannot be carted unless it is dug up, and I venture to say, that when a man charges another with stealing his trees or his marie, all the rest of mankind except lawyers, understand it in the same way, and for the same good common sense reason : viz, that he could not steal the trees or the marie unless the former was cut down or the latter dug up. The artificial reasoning is, that trees, or furze, or marie, being a part of the freehold and continuing so, cannot be stolen; and therefore the slanderer must be understood to mean by stealing, a trespass only, or by the word “ thief” a trespasser. But why not with more reason, understand him as he says; and when he charges another with stealing trees, or marie, suppose he means, trees or marie, in a situation to be stolen. I do not see, why the word thief or stole when applied to trees, may not be considered as explanatory of trees cut down or severed, as the word trees, be considered as restraining the charge of theft to a mere trespass. [189] But as Holt, Chief Justice, said in the case cited from 6 Mod. “ It is not worth while to be learned on this subject.” We are bound by authorities, and judgment must be entered for the defendant on the demurrer. Ford, J. concurred. Judgment for defendant. Cited in Cole v. Grant, 3 Harr. 332.