Holly v. Brown

Storrs, J. The declaration in this case is so inartificially drawn, that it is dificult to determine whether the entry upon the plaintiff’s close and also the asportation of his property, or the asportation alone, is to be deemed the gravamen of the action. If, on this point, there is a fair doubt, from which the defendants can claim a benefit, it would be consonant with general principles to adopt the former construction, since it is the most unfavourable for the plaintiff, who was bound to be more precise in his pleading. The result, however, to which we have come, would not be varied in whichsoever light it is to be viewed. Considering it, in the first place, as a count de bonis aspor-tatis merely,Jt is obvious that it is unnecessary to examine any part of the charge, excepting that which relates to the title of the personal property alleged to be taken: for in that case, the other portion of it, which proceeded on the idea that it was to be treated as a count in quare clausum fregit, would be irrelevant, and therefore unimportant, and whether correct or not, no just ground for a new trial. It is very clear, that if the plaintiff had wrongfully disposed of the property composing the printing establishment, which he had mortgaged to Brown and others, and converted the same into money, the articles in question, which were bought with the avails, would not, by mere operation of law, belong to the mortgagees. The title to those articles would be in the plaintiff, as though they were purchased with any other of his funds: for the legal title to the avails of the property thus sold vested in the plaintiff, although he would be liable to the mortgagees for the wrongful conversion of it. — 266 — The articles procured by the plaintiff being bought with his money, the title to them was presumptively inhim ; yet if they were procured for the purpose simply of replenishing the establishment mortgaged, of supplying the place of articles belonging to it, which had been lost or destroyed by use, and were attached to, and incorporated with, it, accordingly, they would become a part of the establishment, and by right of accession, belong to the owners of it. They would form an incident to, and follow the title of, the printing establishment, to which they were attached, which would be the principal thing ; as if the borrower of a watch should replace its crystal, or of a musical instrument, one of its strings, keys or pipes, which had been lost, destroyed or become useless while in his service ; in which cases they would belong to the lender. Oinneprincipóle trahit ad se accessorium. But it is claimed by the defendants, that, as Smith, the owner of the building, had a right to enter peaceably and dispossess the plaintiff, who was a mere tenant at sufferance, and directed the defendants, Brown and Hoyt, as owners of the property in question, to remove it therefrom, they would be justified in so doing. This claim proceeds on the ground that the defendants were acting lawfully as the servants of Smith, and in the exercise of his right of entry. The court charged the jury, that Smith had such right •, but the removal of the property, by the defendants, in pursuance of those directions, would not constitute such an entry upon the premises on behalf of Smith, as would revest him with the possession. It would not be for the purpose of making an entry, or as the agent of Smith, but on their own behalf, as owners of the property, and for the mere purpose of removing it. The court also charged the jury, that the defendants had a lawful right to enter said building peaceably, and remove the property of which they were owners. This light they had by authority of law, and not by permission of Smith. In exercising it, therefore, they would not act as his agent, or by virtue of his permission. But it was claimed only, that he authorized the defendants to remove their own property; and the property which they did remove, is found by the jury to belong to the plaintiff. The justification of the defendants, therefore, founded either on their right of property, or on the authority of Smith, fails, — 267 — The defendants, however, further claim, that the breach of the plaintiff’s close is the gist of this action ; — that it is necessary to prove such breach, in order to entitle him to succeed; and that if he failed to do so, or such breach was justified by the defendants, the plaintiff cannot recover for the asportation of his personal property. If the gravamen consists solely of the breach of close, this claim is correct; but if it consists of that and also of the as-portation, it is otherwise. The rules of pleading embrace and clearly define the doctrine applicable to this subject. The whole declaration or count must be answered. Thus, in trespass for breaking and entering a close, and with cattle eating up the grass, a justification, which is good for the breaking and entering, is bad as to the trespass with cattle. 1 Saund. 27. So in trespass for entering the close of the plaintiff and destroying the fence enclosing it, both must be answered ; and a justification for merely breaking the close, is bad. 4 Wend. 647. The rule is, however, to be understood of that part of the declaration, which is material and the gist of the action; and therefore, when any thing is inserted in the declaration as matter of aggravation, the plea need not answer or justify that; for the answering of that which is the gist of the action, will cover the whole declaration, 1 Saund. 27. Thus, in trespass qu. cl.fr. for breaking and entering the dwelling-house of the plaintiff and debauching his daughter, the breaking and entering is the gist of the action, and the debauching mere matter of aggravation; and if the breach of close is not proved, the defendant is entitled to a verdict. 2 T. R. 168. So in trespass for breaking and entering the plaintiff’s house, and expelling him therefrom, (so, however, that an assault and battery or trespass is not committed by such expulsion,) the expulsion is mere aggravation ; and a justification of the breaking and entering covers the whole. 3 T. R. 292. The plaintiff need not prove all the allegations in his declaration; but he must prove enough of them to constitute a ground of action, and to entitle him to recover in the form of action which he has adopted, and that is sufficient. Bul. N. P. 94. Hyde v. Morgan, 14 Conn. Rep. 104. This follows from the rule that every material part of the declaration must be answered, and is illustrated by the practice which has always prevailed’, especially in actions for torts. — 268 — And evén where distinct causes of action are embraced in -the same count, provided they be such that the same species of remedy is appropriate to them all, although it may constitute duplicity in pleading, and in that respect be objectionable ; yet, if the defendant does not take advantage of the objection, by special demurrer, he waives the objection, and must be prepared to meet all the charges ; and if the plaintiff substan ■ tiates any of them, he will be entitled to recover. In order to apply these rules, and to distinguish between what constitutes the gist of the action of trespass, and what is mere matter of aggravation, it is only necessary to ascertain what allegations in the declaration describe a substantive ground of recovery in that kind of action: for although the declaration may contain averments descriptive of a cause of action of another kind, which may properly be introduced and proved, to enhance the damages, as shewing the aggravated character of the transaction ; yet they will not be deemed to be any part of the gist of the suit, and do not form a distinct substantive ground of damage. Thus, in the case of Bennett v. Alcott, 2 Term Rep. 166. 168., the debauching of the plaintiff’s daughter formed a substantive ground of action, but not of an action of trespass, and therefore, no recovery in that case could be had upon it as for a substantive injury; and the only use which could be made of the debauching, was, to shew the character and enormity of the trespass, in order to enhancejthe damages. So in Bracegirdle v. Orford, 2 M. & S. 77., where the declaration was for breaking and entering the plaintiff’s house, and without probable cause, and under a false charge, that the plaintiff had stolen property in her house, searching and ransacking the same, by means whereof, the plaintiff was interrupted in the quiet enjoyment of her house, and her character injured; the court held, that the declaration was good, the trespass being the substantive allegation, and the rest, matter of aggravation only ; that the jury could not go beyond the. damages for the trespass, and consider the rest as a subject of substantive damage, or in any other wise than as connected with the trespass; that the breaking and entering the house for the purpose of searching it, and under a false charge, constitutes the trespass; and that the false charge was not a distinct substantive ground of damage. But where in a declaration — 269 — in trespass qu. cl.fr. a distinct trespass to the person or goods is not alleged, it is settled, on the best authority, that the - whole of the trespasses alleged, constitute the gist of the action ; that they must all be answered; and that the plaintiff may recover for any of them, which are not denied or excused. In Phillips v. Howgate, 5 B. & A. 220., where the declaration alleged, that the defendant broke and entered the dwelling-house of the plaintiff, and assaulted and imprisoned him; and during such imprisonment, struck, pulled and pushed him about; the defendant pleaded in justification, that he arrested the plaintiff under process of court, and that. the plaintiff, while in custody, having conducted himself in a violent manner, the defendant necessarily, and to prevent his escape, struck him, &c.; it was held, that this latter part of the justification not being proved, the plaintiff was entitled to judgment. And the reasoning of the court most fully sustains the principles above laid down. See also Wheelock v. Young & al., 4 Wend. 647. In the present case, the declaration alleges, not only an entry upon the plaintiff’s close, but an asportation of his property. These constitute the gist of the action. They are neither of them matters of aggravation, but substantive and distinct causes of action, and proper to be redressed by this species of action. A special plea of justification not answering each and every of them, would be bad. Proof of either of them, will entitle the plaintiff to recover. The claim of the defendants, that proof of the breaking and entering is indispensable to a recovery, is, therefore, unfounded. The law was, indeed, so laid down to the jury, and, in this respect, fa-vourably for the defendants; but, although there are cases countenancing the doctrine, especially that of Ropes v. Barker, 4 Pick. 239., the contrary is, in our opinion, conclusively established, both by principle and the weight of authority. The defendants also insist, that, on the facts claimed to have been proved by the parties, the court should have charged the jury, that Smith had entered upon the premises, and divested the plaintiff of the possession thereof, so that the latter could not maintain this action. It is not every entry upon land by the landlord, that amounts to a dispossession of the tenant. If he enters, by invitation or permission of the tenant, for another object than to take possession, as, for in — 270 — stance, to see the house, to dine, or to hunt with him, it is no dispossession: if, however, he enters and takes possession, by surrendry of the tenant, or without his consent, to exercise acts of ownership, or to take any profit, as to cut down trees, plough or dig the soil, or the like, it amounts to an entry and dispossession of the tenant. Co. Litt. 245. b. The entry, in order to revest possession, must not be merely casual, but animo clamandi, and for the purpose of taking possession ; and these are evinced by the acts and declarations of the party. 1 Chitt. Gen. Prac. 574. The character of the entry, in this case, was properly submitted to the jury, for them to find whether it was such as amounted to an ouster of the plaintiff. An exception is taken to that part of the charge, which stated, that if the plaintiff was in possession of the locus in quo jointly with any other person or persons, it was a sufficient possession to maintain the action. In the language of Williams, in his note to Cabell v. Vaughan, 1 Saund. 291. f. g. “with respect to actions of tort; such as trespass quare clausum, or for taking goods, trover, case for malfeasance, misfeasance, or nonfeasance, and such like actions of tort; it seems fully and clearly established, that if only one of two or more joint tenants, parceners, tenants in common, partners, executors, assignees of bankrupts, and others who regularly ought to join, bring any such actions, the plaintiff must plead the omission in abatement, and cannot give it in evidence under the general issue.” See cases cited in notes to 1 Wms. Saund. 291. f. g. and 5 East 420. 6 T. R. 766. 7 T. R. 279. 1 Chitt. Pl. 8. (Am. ed. 66.) Although the charge embraced in its terms a possession of the plaintiff jointly with Smith, as well as any other person, there was no claim made that any such concurrent possession existed in this case. Nor was the entry by the defendants claimed to be by authority of Smith, while he was in possession, either solely, or jointly with the plaintiff. The defendants, therefore, could not be prejudiced, by this part of the charge. Nor is there any error in the charge, that if the defendants owned the press, but not the types and other materials purchased by the plaintiff, and had a right to enter to take, and did take, the press, but also took the types and other materials, the plaintiff could recover for taking the latter. The right of the defendants to enter, in order to take their prop — 271 — erty, being by authority of law, an abuse of that authority, by a subsequent unlawful act, makes him a trespasser ab initio ; (2 Stark. Ev. 1444.) and it is obvious that a right to take their own, forms no excuse for taking the plaintiff’s, property. Independently, however, of the questions connected with the breach of the plaintiff’s close, we think that the justice of the case would not require the granting of a new trial; since it appears, that the great question on the trial related to the title of the personal property; that the damages claimed had reference to it alone ; and that it was submitted to the jury favourably to the defendants, though, in our opinion correctly. A new trial, therefore, is not advised. In this opinion the other Judges concurred. New trial not to be granted.