Johannesson vs. Borschenius. been instructed to disregard this evidence, and this verdict had still been rendered, the judgment must have been reversed. For it is beyond possibility that a lawyer should say that this evidence did not improperly influence the jury; and if there is any reason to believe it did, an instruction to disregard it does not cure error. State Bank v. Dutton, 11 Wis., 371; Remington v. Bailey, 13 id., 332; Custleman v. Griffin, id., 535; Posey v. Rice, 29 id., 93. Welch & Botkin, contra, argued that the general instruction of the court laid down the correct rule; that if even nominal damages are otherwise found, and the jury also find that the taking and conversion were willful and malicious, then it is their sole province to say how much punitory damages should be allowed. Mc Williams v. Bragg, 3 Wis., 424, and cases there cited. DIXON, C. J. The judge instructed the jury that the only cause of action for the conversion of property, proved or which the evidence tended to prove, was for the taking and detention of the receipt. He charged that the school land certificates, mentioned in the second count of the complaint, were, at the time of the alleged conversion of them by the defendant, the property of the defendant by legal title, and consequently that whatever right the plaintiff might have had in equity to compel a transfer of them, if any, yet the defendant could not be found to have converted them as against the plaintiff. We are of opinion that the judge was correct in these propositions, and hence that the only damages recoverable in this action are those growing out of the alleged conversion of the receipt, to wit, for the trouble, loss and expense to which the plaintiff was subjected in consequence of its having been taken and detained, and in order to regain possession of it, together with such vindictive damages, if any, as the jury shall think the defendant ought to pay, in case they find his motives and conduct on the occasion of the alleged conversion to have been fraudulent and op Johannesson vs. Borschenius. pressive, malicious or insulting. The case stood, therefore, upon the final summing up and charge of the court, as if there had been no second count in the complaint, but only a count for the conversion of the receipt. In this view of the case, which we have already said we regard as correct, it is obvious that there was considerable testimony introduced in behalf of the plaintiff upon the trial, and to which the defendant objected, which ought to have been rejected. Such was the character of all the evidence the plaintiff was permitted to give of the expenses he incurred and the loss and trouble to which he was put about the certificates, and for the purpose of setting aside the patent. This was foreign. to the only good cause of action stated, and of which any proof was given, and was incompetent and improper testimony. It was evidence of damages which could not be recovered in this action, but which sounded in contract and not in tort, and hence were recoverable, if at all, only in an action of assumpsit, or of that nature, for a breach of the implied promise of the defendant not to take the certificates or the patent or the title of the lands to himself or to another, but to cause them to be transferred to the plaintiff. The essential difference between actions ex delicto and ex contractu, and in the nature and effect of the judgment, is well known, and positively forbids the recovery of damages upon contract in an action of tort, if any proper objection be taken. Supervisors v. Decker, 30 Wis., 631; Anderson v. Case, 28 id., 505. The effect of admitting improper evidence is well understood. It is fatal to the verdict and judgment, unless the jury were positively directed to disregard it; and even then the error will not be cured if it appears that their verdict was in any way affected by it. State Bank v. Dutton, 11 Wis., 371; Johnson v. Hamburger, 13 id., 175; Remington v. Bailey, id., 332; Castleman v. Griffin, id., 535; Conklin v. Parsons, 1 Chand., 240 (2 Pinney, 264); Rabke v. Andrews, 26 Wis., 351, 354. At the request of the defendant, the court instructed the jury that no Ainsworth vs. Barry. damages could be allowed or assessed to the plaintiff in any manner arising from the withholding of the school land certificates, nor for his attorneys' fees charged or paid for the recovery of them, and none for his own time spent in the effort to obtain them from the defendant. It can hardly be said that this was equivalent to a positive direction to the jury, in their consideration of the case, to disregard all the evidence which had been given upon that subject; but if it was, still the evidence respecting that trouble and expense in and about the setting aside of the patent remained untouched. The jury were left to consider that evidence, which was improperly received, and no one knows what effect it may have had upon their verdict. By the Court-Judgment reversed, and a new trial awarded. AINSWORTH VS. BARRY. FORCIBLE ENTRY AND DETAINER. (1) When the action will lie. (2) Evidence. 1. The parties to the action had had negotiations about the purchase and sale of a dwelling house belonging to plaintiff and in his possession, but there had been no sale or delivery of possession to defendant. The house was vacant, the doors and windows were fastened in the usual manner, and plaintiff had the key, which he refused to deliver to defendant. The latter then made an entry into the house, after dark, by forcing open a window which was fastened, after trying to get through the back door. As soon as plaintiff discovered that defendant was in possession (with his family and household goods), which was a day or two after such entry, he ordered him out, and threatened to send an officer to put him out; but defendant refused to leave the house; and thereupon this action was brought, under the statute "Of forcible entry and unlawful detainer" (R. S., ch. 151). Held, that upon the facts stated the jury might have found that defendant broke into the house with some degree of force, intending to hold possession by force; and the action would lie. 2. The jury having been instructed that if defendant did not himself use Ainsworth vs. Barry. force to effect his entrance, but entered through a door opened by his wife, he was not chargeable in this form of action, the exclusion of the wife, as a witness in defendant's behalf, to show in what manner she entered the house, is not error. APPEAL from the Circuit Court for Dane County. This was an action of forcible entry and detainer, brought in justice's court, where plaintiff had judgment; and defendant appealed to the circuit court. The statute (R. S., ch. 151, sec. 1) upon which the action is founded, provides as follows: "No person or persons shall hereafter make any entry into lands, tenements or other possessions, but in cases where entry is given by law, and in such cases not with strong hand, nor with multitude of people, but only in a peaceable manner; and if any person from henceforth do to the contrary, and thereof be duly convicted, he shall be punished by fine." The opinion states the facts. The jury found that the defendant, was guilty of the unlawful and forcible entry of the preinises described in the complaint in this action, as therein alleged, and that the plaintiff ought to have restitution of the said premises without delay." Judgment for the plaintiff, for restitution of the property, and costs, and that the defendant pay a fine of one dollar; from which judgment defendant appealed. Vilas & Bryant, for appellant, insisted that the object of the statute was originally, and a just interpretation requires its construction to be, to prevent such conduct as is calculated to create breaches of the peace, inspire personal terror, or do, at at least, as to property, some actual, visible, physical violence and destruction. See 1 Hawk. P. C., ch. 28, secs. 25-27; 2 Bac. Abr., 558; Winterfield v. Stauss, 24 Wis., 394; Willard v. Warren, 17 Wend., 257; People v. Rickert, 8 Cow., 226; Commonwealth v. Dudley, 10 Mass., 403; Frazier v. Hanlon, 5 Cal., 156; Commonwealth v. Shattuck, 4 Cush., 141. 2. It was error to exclude defendant's wife as a witness to the manner of entering the house. Defendant had testified that what she did Ainsworth vs. Barry. he could not see, and since it was her act for which he was on trial, she was competent. If she was his agent to commit an offense out of his sight, she could also testify to the manner of its commission, as he might have done had he committed the act. Birdsall v. Dunn, 16 Wis., 235; Respublica v. Shryber, 1 Dall., 68. Gill & Foot, contra, argued that Barry's entry into the house. after dark by forcing open a window, the premises being in the actual possession of Ainsworth, who had refused Barry the key, and the doors and windows being all fastened in the usual manner, and Barry's refusal to go out when ordered to do so, showed the entry to have been a forcible one, made with "strong hand," within the meaning of the statute. Jarvis v. Hamilton, 19 Wis., 187. The term "entry with strong hand," as used in the statute, means an entry under such circumstances as would induce an ordinarily prudent person to believe that an attempt to regain possession would be resisted with force; and the character of the entry may be proven by any and all circumstances that relate to the taking, holding or detention. A forcible detainer, when proven, is not a distinct offense, but only evidence giv ing character to the entry. See McCauley v. Weller, 12 Cal., 527; Scarlett v. Lamarque, 5 id.. 63; Shoudy v. School Directors, 32 Ill., 290; Davidson v. Phillips, 9 Yerg., 93; Childress v. Black, id., 317. The statute was evidently intended to protect possessions that are temporarily vacant, and to relieve an injured party from the necessity and danger of using physical force to regain possession. COLE, J. It would be a most unprofitable labor to go through all the cases found in the books, or even cited by counsel, and attempt to reconcile all that is said in them in respect to the degree of force or personal violence which must be used or threatened in order to constitute the forcible entry or forcible detainer contemplated by the statute. The divergence of views sometimes expressed is doubtless in part owing |