Bateman v. Goodyear

Williams, Ch. J. The evidence offered by the defendants, on the trial, was rejected by the court, on the authority of Bliss v. Bange, 6 Conn. Rep. 78. That action was similar to this; and the evidence offered was similar. There, the defendant justified under the plea of liberum tenementum ; and the only question before this court, was, whether the plaintiff should not have judgment in his favour, notwithstanding a verdict had been given for the defendant; and upon that question, the court held, that whatever might be the common law, or the law of other states, as our statute expressly gave the action of trespass, to the person aggrieved or forcibly ejected, they were not at liberty to disobey a plain, legislative enactment. The effect of the verdict in that case, was the only question before the court; and it does not appear, by the report, that a word was said, by the bar or the bench, as to the damages. The judge who delivered the opinion, indeed, does say: “The [580] statute designedly excludes the examination and decision of , ■ , . . . . . ... ,. ..... question or title, and on principles of public policy, prohibits forcibIe entries and detainers, and authorizes the process of restitution and the action of trespass.” 6 Conn. Rep. 80. It is apparent, that if the statute did give this action of trespass whenever there was a forcible entry, the title could be no justification ; for the effect of such construction would be, to nullify the statute. The remarks of the judge, therefore, are to be considered as applicable to the question before the court; and as no question of damages was pending, we have no. evidence that there was an intended reference to any such question, but rather ought to refer them to the subject matter then before the court. After that decision, the cause went backtothé superior court, to ascertain the damages; and it is said, that before that court this evidence was not admitted. But whether it was offered and rejected, or whether it was not offered at all, we are not exactly informed. However that may have been, the decision there would not be binding upon this court; and we are at liberty to decide it upon principle. Does the statute, then, require such a construction as is claimed by the plaintiff? The statute gives to the party aggrieved an action of trespass and treble damages. Had it given an action of trespass, and nothing more, it would seem as if the amount of damages, must have been regulated upon the same principles as in other actions of trespass ; and when treble damages are given, such an enactment does not at all affect the principle upon which single damages are to be given. What then is the principle, upon which damages are given, in an action of trespass l The party is to be indemnified, for what he has actually suffered ; and then all those circumstances, which give character to the transaction, are to be weighed and considered. Bracegirdle v. Orford & al. 2 Mau. & Selw. 77. Churchill v. Watson, 5 Day 140. Thus, whether the entry was violent or quiet, whether through malice or mistake, whether under colour of right, or without any pretence of title, are all proper subjects of consideration. And if a person, acting without pretence of right, would be subject to greater damages than one acting under a bona fide claim of title, surely such claim, accompanied by proof of actual title, should be submitted to the triers. For [581] instance, if a tenant at sufferance was holding over, and the lessor ejected him by force, under an execution, which was technically defective, ought that man to recover the same damages as if he had been dispossessed, in the night season, by an armed ruffian, whose object was plunder? It may be said, that effect cannot be given to the statute, unless a more rigid rule is adopted. But as the statute is of a penal nature, it may well be doubted, whether it should be extended by construction. At all events, we should hesitate before we should say, that restitution of the property, with treble damages, and the costs of two suits, did not constitute a sufficient punishment. We think, then, that upon well settled principles of law, the defendant was entitled to this evidence, unless another objection is to prevail; that these proceedings are no evidence of title. This objection does not appear to have been made in the court below ; but the precise ground on which the evidence was ruled out, was, that the title could not be shewn ; and thus the party may have been precluded from the proper proof. If, however, he should have offered such proof, and the evidence was not proper to prove title, as we think it was not; yet, as it went to prove the relation the defendants stood in towards this property, a majority of the court do not hesitate to say, ⅛⅜⅛ it was a circumstance proper for the consideration of the jury 4 We see nothing in the statute, nothing in the principles of the common law, and nothing in the decision of this court, forbidding it. A new trial, therefore, must be granted. Bissell, Church and Waite, Js. concurred in this opinion. Huntington, J. dissented, New trial to be granted.