Edmunds v. Leavitt, 27 N.H. 198

Eastman, J. Three issues were joined in this case. The first was upon the property in the steers, the defendant alleging that they belonged to Nathaniel Edmunds, and not to the plaintiff; the second, upon the possession and keeping of the steers, last before the taking, the defendant alleging that they were in the possession of Nathaniel Edmunds; and the third, upon the defendant’s knowledge of the ownership of the steers, he alleging that he did not know that they were the plaintiff’s.

To sustain the two first issues, the defendant having introduced evidence tending to show that the steers were the property of Nathaniel Edmunds, and were in his possession last before the taking, then offered the testimony of Greenough, showing a sale of the oxen in the fall of the year after the controversy arose. The taking of the property was on the 25th of May, 1850, and the testimony of Greenough related to a transaction in the fall of 1850. The court ruled the evidence of Greenough to be incompetent ; and we think correctly so.

The testimony related to the oxen, not the steers; aud had it been admitted, a collateral issue might at once have been raised. It, moreover, had reference to a transaction occurring months subsequent to the origin of the controversy, during which time the situation of all of the property might have been changed; and we do not see that it had that connection with the matter in dispute which could make it competent either to prove or disprove the issues.

The course pursued by the court in declining to instruct the jury, that they should not find the second issue for the plaintiff unless they found that the steers were last before the taking in the possession or keeping of the plaintiff, and that the defendant knew that they were so in the possession or keeping of the plaintiff, was also correct. The issue was upon the possession and keeping of the steers, and the issue was tendered by the defendant himself. If he had desired to make the question of knowledge a material one, he should have framed his pleadings accordingly.

The plaintiff' gave him an opportunity so to do, had he deemed it essential. As it was, the question of knowledge as to the possession and keeping was not put in issue by the pleadings, and it was, therefore, not necessary that the jury should so find. So far as we can judge, from the facts disclosed, the rulings in the case were quite favorable enough to the defendant, and there must be— Judgment on the verdict