This section is from the book "The Gardener's Monthly And Horticulturist V18", by Thomas Meehan. See also: Four-Season Harvest: Organic Vegetables from Your Home Garden All Year Long.
A nurseryman of Germantown, Philadelphia, took pear and other trees, and having marked them found them in a garden owned by a notorious character who had already been several times in prison. The evidence that he had stolen them was so conclusive that the nurseryman did not hesitate to pull the trees up and take them home. The case was heard before a magistrate, who committed the thief to answer at the criminal court for larceny. The trees were pear trees, and had been bought to sell again, and were bedded in temporarily to being re-sold; and with this view the magistrate held the trees to be merchandize, and hence that the man had committed larceny. The case came up before His Honor, Judge Thayer, of the Criminal Court, who charged the jury that if there was ever so small a quantity of earth over the roots of the pear tree, so that the tree might possibly strike out new roots and grow, the man had not committed larceny, and the jury under the charge of the learned judge discharged the prisoner.
The question then arose as to what should be done with the prisoner. It was found that there were four ways of catching such rogues.
Larceny, which did not work. Malicious mischief - but this only holds where a man does an injury when the main element is not the benefit to himself; but here the man wanted pear trees, so that would not do. Then there was "trespass " - but a nurseryman's ground was a place of business, and it is no trespass to be found there. Then "damages" were considered, but the trees were worth only four dollars, and besides the nurseryman had regained possession. The whole range of law was examined by a careful lawyer, and the result arrived at that at common law a nurseryman had no redress for trees stolen from his grounds, unless such trees were lying on a brush heap ready for the bonfire, or in some other way disconnected with the earth. The conclusion was so remarkable that the writer of this addressed a lettter to the District Attorney of the City of Philadelphia, and received the reply we give below, noting however that in the letter to Mr. Sheppard there was no reflection on the decision of Judge Thayer, as the answer would seem to imply.
Judge Thayer is himself an excellent horticulturist, and no one would suspect him in any case of giving a decision he did not honestly believe in, while his legal learning is of too high a character to doubt the soundness of what he decides to be the law.
" Philadelphia, May 19, 1876. Mr. Thomas Meehan.
Dear Sir: - I have read your letter of the 17th very carefully, but I must say that I think the law was correctly laid down by His Honor Judge Thayer. There are many instances, however, in which things which were not the subject of larceny at common law have been made the subjects of larceny, or have otherwise received protection from positive legislation. I would suggest that you continue to give the subject your attention, and frame a clause, and submit it to the Legislature, which will cover the class of cases to which you refer. It will doubtless receive the favorable consideration to which its merits entitle it, and which a sense of justice should prompt. Very respectfully yours, etc,
We hope this will receive the attention of our legal friends who are interested in horticulture. A law such as the District Attorney suggests would require more talent to frame than the editor of this journal could bring to bear on it. It takes a very smart man to beat a rogue at law in these days.