Fretton v. Karcher

Mr. Justice Mekcur delivered the opinion of the court, On the trial of this cause the counsel for the' plaintiff in error asked the court to charge the jury on nine written points. The court answered one only, and under exceptions directed the jury to find a verdict on eleven points framed by the court, and to assess the damages,,subject to the opinion of the court on the law arising from the facts to be found by the jury. This gives rise to the first assignment of error. The court had the undoubted right to direct the jury to return a special verdict. It is one of the recognised modes by which the facts are put into the record: Miller v. Hershey, 9 P. F. Smith [428] 64. The question, however, arises as to the correctness of the specific manner in which the court submitted the facts to the jury. It was the right of the counsel to ask the court to submit to the jury all the material and controverted facts on which evidence had been given, and to withhold from them all the alleged facts, in support of which no evidence had been given. The defendant in error sought to establish two controlling facts. The one, that no rent was due when the distress was made; the other, that the proceedings relating to the sale were grossly and intentionally irregular and defective. The former, to give a right to recover ; the latter, to enhance the damages. As the jury found no rent was due, the plaintiffs in error were thereby adjudged trespassers ab initio, and the right to recover against them the value of the goods distrained, was established. This practically disposes of all the assignments not relating to the measure of damages. The first five assignments are therefore not sustained. The remaining assignments may be considered together. An examination of the testimony shows that each of the appraisers positively and distinctly testified that they were duly sworn; there was no evidence to contradict it, yet the court submitted to the jury to find that they were not sworn, and they so found. The court also submitted to the jury to find that the plaintiffs in error, before and at the time of the sale, knew these three facts. 1. That notice of the distress and cause of it was not given to the defendant in error, or left on the premises five days before the appraisement. 2. That the persons who made the appraisement were not freeholders. 3. That six days’ public notice was not given of the sale after the appraisement and before the sale. A careful reading fails to disclose any evidence that the plaintiffs in error had any knowledge of either of these facts. Mrs. Eretton is not shown to have had any knowledge whatever of the proceedings after she signed the landlord’s warrant which was directed to the constable. Mr. Eretton thereafter participated on the day of sale only. He is not shown to have had any knowledge of any irregularity in the proceedings in the intermediate time. He was at the sale and bid off some property. There is no evidence that any notice was there given, or any averment there made, by any person, that all the proceedings were not regular and according to law. It cannot admit of doubt that this supposed knowledge of the plaintiffs in error must have unduly influenced the minds of the jurors. It would naturally strike them as a wanton disregard of duty, and a reckless exercise of a pretended right through the forms of law. It must have been those facts, found without testb [429] mony, that caused the jury to return a verdict for $2500. After one-half of that sum was remitted it still stands for more than three times the sum at which the property was appraised under oath. It was contended, that inasmuch as it ivas found that no rent was due and in arrear, the 3d sect, of 21st March 1772, gave the right to recover double- the value of the goods and chattels distrained and sold. There are two answers denying that right here. 1.. The action was not brought, nor did the defendant in error declare under that statute: Morrison v. Gross, 1 Browne 1; Rees v. Emerick et al., 6 S. & R. 286; Campbell v. Finney, 3 Watts 86; Hughes et al. v. Stevens, 12 Casey 320. 2. This action is not against the “ person or persons distraining,” but against the persons in whose names the distress was made. The Act of 21st March 1772, giving double damages, applies to the former, and not the latter : Wells v. Hornish, 3 Penna. R. 30. This action was at common -law. The record does not show that any point was made by either counsel or cour,t, in regard .to the measure of damages. The good faith of the plaintiffs in error, on the one hand, or their participation in the officer’s wilful disregard of his official duty on the other, will have a legitimate influence on the question of damages. The errors are therefore sustained. Judgment reversed and a venire facias denovo awarded.