Andrea v. Thatcher

Dixox, C. J. There was no error in striking out the words “by permission of,” and inserting in their place the words “under and by virtue of authority from,” in the second and fifth instructions asked by counsel for the defendants. The idea of counsel in drawing the instructions no doubt was, that, in order to render the plaintiff, Andrea, liable to removal by virtue of the process in the forcible entry action against Smith, the jury must find that Andrea entered under Smith — that he [475] was Smith’s tenant or representative. That idea was more clearly expressed by the words snbstitnted by the conrt, than by those employed by connsel, which possibly might be susceptible of a different construction; and if so, the instructions as asked would have been erroneous. If Andrea did not enter under Smith, and by virtue of authority from him, and with' notice of the pendency of the forcible entry action, he was not subject to removal by virtue of the process in that action. The question then arises, where instructions are thus correctly modified and given, whether the judgment must be reversed under the provisions of chapter 101, Laws of 1868. It would be very strange if such were the law, yet if the statute so declared we should have to give effect to its provisions. The act declares that if the judge shall give any charge to a jury, or make any comments, upon the law or facts, without the same being reduced to writing before it is given, any judgment which shall be rendered upon the verdict of such jury shall be reversed upon appeal or writ of error to the supreme court, upon the fact appearing; provided that a charge in writing may be waived by counsel at the time of the commencement of the trial. But to the proviso that the judge shall give each instruction asked by counsel on the trial of a cause to the jury, without change or modification, the same as asked, or shall refuse each in full, no such consequence for a failure to comply with it is attached. If the legislature had intended that any such consequence should follow a mere modification of a written instruction, whether right or wrong, as that the judgment should be absolutely reversed, no doubt such intention would have been clearly expressed by the act. It is a statute in derogation of the common law, and which, in providing that a judgment in itself correct, and by which justice has been done between the parties, shall be reversed because the judge failed to reduce his charge to writing before giving it to the jury, [476] is almost penal in its character, visiitng the successful party with the loss of his judgment and a bill of costs as the result of a technical failure or mistake on the part of the judge, for which such party was not responsible, and which caused no actual damage or injury to the opposite party. We do not think this provision should be extended beyond its strict and literal import, and are therefore of opinion that the error of the judge in modifying the instructions is not one for which the judgment should be reversed. As to the rulings of the court in refusing to give the third, fourth, sixth, ninth and tenth instructions asked for the defendants, and in giving those asked for the plaintiff, we can discover no error in them for which the verdict ought to be set aside. The instructions asked on both sides were very general as to what would constitute an abuse of legal process, or an excess of authority on the part of an officer executing a writ. The conduct of the officer which would amount to such abuse or excess, was not specifically defined. In Taylor v. Jones (42 N. H. 25), it was held that there must be such a complete departure from the line of duty — such an improper and illegal exercise of the authority to the prejudice of another- — -such an active and willful wrong perpetrated — as will warrant the conclusion that its perpetrator intended from the first to do wrong, and to use his legal authority as a cover to his illegal conduct. And in Fullom v. Stearnes (30 Vt. 453), it is said that the jury should find that the officer acted willfully, rashly, maliciously or wantonly. But upon the facts in this case, we think there is no reason to apprehend that the jury were misled, or made any mistake, or could have made any, for want of more specific instructions upon this point. The conduct of the officer was grossly reprehensible and improper, and such as admitted of no excuse or justification. The removal of the plaintiff and his family of small children from the house was attended with circumstances of great outrage and [477] aggravation. The acts of the officer, and those of the riotous crowd of men he brought with him, were rude, hasty and insolent. Within one hour after the rendition of judgment 'in the forcible entry action, and with no time or opportunity given to the plaintiff to remove his family or provide for their protection, he and they were turned into the street in the night-time, at an inclement season of the year, and their furniture, clothing and goods, not lost or destroyed, were thrown, damaged and broken, out into the mud. If not himself actuated by malice toward the plaintiff and his family, then certainly the officer must have been a willing instrument in the hands of the plaintiff in the forcible entry action, under the guise of legal process, to execute his malicious purposes, which was far worse. Under these circumstances, even if there were some errors or mistakes in the instructions, we would be inclined to say, as was said by the court in a similar case (Burton v. Calaway, 20 Ind. R. 469), that the verdict and judgment are so clearly right upon the evidence, that we think it immaterial whether the instructions were strictly correct or otherwise. By the Qowrt. — The judgment below is affirmed, with costs.