Beedy v. Reding , 16 Me. 362 ( 1839 )

The opinion of the Court was drawn up by

Weston C. J.

The case does not state the instructions actually given by the presiding Judge to the jury. It does not appear, that he was requested by the counsel for the defendant, to instruct them according t.o his views of the law. All that does appear is, that the counsel took certain legal positions, in relation to which the Judge was silent; for it is not stated that he overruled them. But aside from the manner in which the case is presented, upon examining the evidence, we are not satisfied that the verdict ought to be disturbed. For any thing which appears, the jury negatived the assumptions, upon which the defence was based. The minor sons of the defendant, being at the time members of his family, with the defendant’s team, at three several times, hauled away the plaintiff’s wood. This could hardly have been done, without the defendant’s knowledge, if it had not his approbation. It was his duty to have restrained them from trespassing on his neighbor’s property. Qui non prohibet, cum prohibere possit, jubet. And this maxim may be applied, with great propriety to minor children, residing with, and under the control of their father. If he had caused them to carry the wood back, when the fact came to his knowledge, if he did not know it at the time, he would have done his duty to his children and to his neighbor. Considering the relation in which he stood, and the repeated use of his team in getting the wood, it would not be easy otherwise for him to escape legal liability, upon a just view of the facts.

Exceptions overruled.