HERR against SLOUGH.

1811.

October 14.

a new trial the

the deposi

tions of witnesses, taken

HIS was an action of trespass quare clausum fregit, for On a rule for breaking and entering the plaintiff's close, and quarry- court rejected ing, and carrying away stone, &c. It was tried, Feb. 7th, one thousand eight hundred and four; and a verdict given in favour of the plaintiff for seven hundred and ninety-six dollars immediately ard ten cents. A rule was obtained to shew cause why a new produced to trial should not be granted, on the following grounds: 1st. The plaintiff has misconceived his action. 2nd. He gave no proof of possession.

3rd. The damages are excessive.

It was contended, that by the 9th section of the act entitled "an act for making an artificial road from the city of Philadelphia to the borough of Lancaster," passed the 9th day of April, 1792, the defendant had a right to enter upon the plaintiff's land, for the purpose of procuring stone and other materials for said road. This act was designed to effect an object of great public good; and provides ample security for all damages done to individuals, by securing to them an equivalent for their property. It never was contemplated, by the legislature, that this should be a case of vindietive damages. They merely intended, that every man who was thus obliged to give up a portion of his property, should have a reasonable price for it; and they prescribed an express mode of ascertaining that price, by appraisers to be appointed for that purpose. To maintain this action, therefore, would be to violate the provisions of this law. It would be extraordinary indeed, to punish a man as a trespasser, for doing what the law authorised.

There is another ground, however, upon which the action eannot be sustained; and that is, the want of possession. It was proved on the trial of this cause, that the plaintiff lived at the time, at the distance of twenty miles from the place where the alleged trespass was committed; and that Michael Young and Jacob Croner were his tenants. Young and Croner must therefore be considered as having a lease of this property, for a year at least. A lease for a year is a

after the trial,

explain and qualify the evidence they gave at the

trial.

1811.

HERR

against SLOUGH.

disposition of the property for that time; and having the exclusive possession, they alone, could support an action of trespass against a stranger. (a) Lastly, if there were no other reason, the court would grant a new trial on account of the excess of damages. The Legislature certainly never intended, even supposing the present form of action could be sustained, that a man should recover more by way of damages, than the value of his property and reasonable costs of suit; and yet the jury have allowed the plaintiff, not only the value of his property, but also, in addition to that, six hundred dollars, by way of damages.(b)

The counsel in support of the motion observed, that there was sufficient evidence even from the record, to satisfy the Court that the damages were excessive.(e) The determinations of juries are not final, and a new trial will be granted even in cases of tort, where legal principles have been violated, or the damages are excessive.

It was answered, That this is a common-law-suit, not intended to be taken away by the act of assembly. The legislature, it is true, contemplated, that individuals, residing contiguous to said intended road, should upon receiving an equivalent, relinquish a portion of their private rights. But they certainly never did intend to subject the property of individuals to the wanton abuse of others, without imposing some restraint upon their conduct. The law therefore, at the same time that it grants all the privileges necessary to effect its object, sedulously guards against the violation of private rights, by imposing proper restrictions upon the exercise of those

(a 6 Com. Digest. Trespass B. page 389 390.

(6) That this was the fact, the counsel ofered to prove by a paper, purporting to be the private finding of the jury, filed with the declaration, and indorsed by the clerk, “sealed verdict." This was objected to, on the ground that no evidence can be received upon the subject, other than the record itself. All private findings cease the moment the public finding is recorded; and if loose scraps of paper were permitted to influence or set aside verdicts, there would be no use in recording them : besides, there is no evidence that this was the finding of the jury, as it was not signed by them. The Court thought the objection a good one, and accordingly rejected the evidence. Another paper was then offered to the Court, said to contain the plaintiff's own estimate of damages, but which in fact was nothing more, than an offer made by him before suit brought. The Court rejected this also, and added, that an offer made and not accepted was not even evidence at the trial. (c) 3 Black. Com. 390 1. Bays Rep 269 2 Black. Rep. 942. 2 Dall. 2 Bay's Rep 33. Styles Rep. 466 and Combuback 357.

66.

Teges. In the first place, no one can even enter upon the lands of another, without having first given notice; and after he has entered, he dare not attempt to open the ground, until the price be fixed either by agreement with the owner, or ascertained by appraisers. The defendant therefore cannot seek protection under the provisions of this law, as he hath violated it, in its most essential parts. He gave no notice of entry; and after entry, made a wanton attack upon the plaintiff's property without his knowledge and consent, as if totally regardless of all those provisions and restrictions which were intended to secure the rights of individuals, and without which, what was designed as a public benefit, would have been an act of despotism. This act therefore being in derogation of common-law-right, must be construed strictly every restriction in favor of the individual must be faithfully observed; for if a latitude of construction in one particular is allowed, where will it end? It at once substitutes the will of the wrong-doer, for the will of the law-maker. It subjects the owner to the will and pleasure of the trespasser; and obliges him to assume the character of a humble petitioner instead of representing him as a public benefactor. Every entry on the lands of another, against the owner's consent, is a trespass at common-law. To obviate this difficulty the legislature enacted, that before entry you must give notice; and therefore, if a man will undertake to enter without giving notice, and without consent, he becomes as much a trespasser, as if the act had never been passed.

Under all the circumstances of this case the damages are not excessive. The violation of public law and private right; the extensive and destructive nature of the trespass complained of, were all facts for the consideration of the jury; and in cases of torts, the question of damage belongs to them exclusively.(b)

There is no prescribed form of proving possession. It is generally supposed to be in the person to whom the land belongs; and where a man owns several tracts, he cannot have

1811.

HERR against SLOUGH.

possessionem pedis of each. This is a technical exception and no ground for a new trial after verdict.(c) Moreover, Young and Croner, were not tenants of the farm, they were merely tenants of the plaintiff's mill and quarry.

That this was the extent of their tenure, was offered to be proved by their depositions taken the morning after the trial, which go to qualify the generality of their testimony as delivered to the jury.

To this it was objected by the counsel on the otherside, that a motion for a new trial can only arise upon the facts that were submitted to the jury; and to admit subsequent depositions would be attended with extreme danger, as it would open a door to perjury, and make that endless which was intended to be finite and certain.

The motion for a new trial, was supported by Smith and Montgomery.

Hopkins opposed it.

Per CURIAM.

Franklin, President.

This was an action of trespass vi et armis quare clausum fregit. It was proved, by Michael Young and Jacob Croner, witnesses produced by the plaintiff, that he lived in Little Britain, at the distance of twenty miles from the place in which the trespass was committed. They also said that they were his tenants. He was therefore not in the actual possession of the land, and agreeably to the decision of the Court in the case of Shenk against Mundorf he cannot legally maintain this action.

The counsel for the Plaintiff, with a view to remove this difficulty, has offered to read certain dépositions, taken immediately after the trial, to shew that the plaintiff was in

(c) 3 Wils 292. 2 Wils 306.

possession of the place; and to explain and qualify the expres sions used by Young and Croner, that they were his tenants.

On a due consideration of the nature of the testimony of fered, it appears to me, that its reception, in the present stage of the cause, would be attended with such inconvenient and even dangerous consequences, as to justify me, upon every sound principle of law and policy, in refusing to admit it. I know that similar depositions have been sometimes received and acted upon by our courts, on motions for new trials. On this subject it is well remarked by Judge Brackenridge, in the case of Blaines Lessee against Johnson, (a) "that the propriety of hearing such depositions has never, "he believes, received examination and that what has pas❝sed sub silentio in practice is very distinguishable from "what has received the solemnity of a consideration on argu"ment, and the sanction of decision."

I am therefore of opinion, that there ought to be a new trial.

Rule absolute.

A

AXERS, EXECUTRIX against MUSSELMAN.

1811. October 14 On a rule to shew cause

N action on the case for money had and received, was tried and a verdict rendered in favor of the plaintiff. why a new trial should A rule to shew cause why a new trial should not be granted, not be granted, having been obtained, it was argued by Montgomery on the it was held, following among other grounds.

1st That in an action

executor or

1st. No profert was made of the letters testamentary. The brought by an objection was taken at the trial, and therefore it is not cured administrator, by the verdict. A man may sue, but cannot declare before on a cause of action arising probate consequently the plaintiff having shewn no authori- in the life-time ty to receive, had no right to recover.

of the deceased, no profert need be made of the letters

testamentary, or letters of administration; and 2ndly. It is no bar to an action for money had and received that a third person had entered into a bond to the plaintiff conditioned for the faithful collection and payment of the money in controversy.

(a) 3 Binney 103 113