Hyde v. Morgan

14 Conn. 104 | Conn. | 1840

Storrs, J.

The onlv question in this case, is, whether in an action for the penalty prescribed m the statute alienations of land of which the grantor is ousted, excepting to the person in actual possession, brought against the grantor, it is necessary that the plaintiff should prove, on the trial, that the whole of the premises alleged, in the declaration, to have been conveyed contrary to the statute, was possessed adversely to the grantor and his grantee; or, whether the plaintiff may not prove such adverse possession as to a part only of the premises, and recover accordingly.

In this case, the execution and delivery of the conveyance from the defendant to Noyes, the alleged grantee, as stated in the declaration, were admitted; so that there was, on the trial, no question of variance between the conveyance alleged and that which was proved. The only inquiry is, how much it was necessary for the plaintiff to prove, as to the extent of the ouster, to entitle him to recover.

The genera] rule is well established, as expressed by Chitty, that in actions ex delicto, upon proof only of part of the injury charged, or of one of several injuries laid in the same count, the plaintiff will be entitled to recover pro tanto, provided the part which is proved afford perse a sufficient cause of action, 1 Chitt. Plead. 368. Maitland v. Goldney, 2 East, 438. Compagnon & ux. v. Martin, 2 Bla. Rep. 790. Gwinnet v. Phillips &. al. 3 Term Rep, 643. 645. Barnard v. Duthy, 5 Taun. 27. Jones v. Clayton, 4 Mau. & Selw. 349.

The same rule, with respect to proof of only a part of the breach set out in a declaration, applies, in general, in actions of assumpsit; and if the breach is laid as extensively as the contract, the plaintiff may recover, although he prove a part only of the breach as laid. 2 Stark. Ev. 1536. 1541. Maitland v. Goldney, 2 East 438. Barnard v. Duthy, 5 Taun. 27. Forty v. Imber, 6 East, 434. 437.

In an action of disseisin, the same rule prevails. The plaintiff, if he proves title to a part only of the demanded premises, may recover for such part; and, if he alleges a title in fee, he may recover, if he proves only a title to an estate for life, or for years. 1 Sw. Dig. 250.

In trespass also, nothing is more common than for the plaintiff to recover, on proving a part only of the injuries complained of, when the proof shews sufficient to constitute a ground of action, or a less number of trespasses than are laid in the declaration, when several are specified. The same principle is applicable to criminal prosecutions. It has never been deemed incumbent on the prosecutor to prove, for instance, on an information for theft, that the prisoner stole all the articles enumerated, or, for assault and battery, the commission of all the several acts charged. But convictions constantly take place, in these and other criminal prosecutions, generally, on proof of any of the acts laid, or a part of any of them, which constitute the offence charged.

Without further detailing the cases on the subject, it is sufficient to refer to Starkie’s Evidence, part 2. p. 1529. where the cases, shewing how far evidence is required in support of allegations in a declaration, which relate to extent, number and magnitude, are well collected, and fully sustain the charge in this case. We perceive no good reason why the same rule should not prevail in actions on penal statutes; and such we believe to have been the universal practice.

The defendant has urged, that greater strictness of proof should be required in such suits than in others, in consequence of the strictness with which penal statutes are construed. But the rules of construction which prevail in regard to those statutes, can have no bearing on the practice which should be adopted in reference to the question of proof now before us. And surely, if, in criminal proceedings, it is not necessary that the proof should be co-extensive with the charge, it cannot be required in penal actions. Indeed, in this respect, there is no reason why there should be any discrimination between them. The rule contended for, by the defendant, would produce great and unnecessary inconvenience in practice, while it would confer no substantial benefit on the defendant.

It has also been urged, that injustice would be done to the defendant, by adopting the rule laid down in the court below, inasmuch as the verdict and judgment, being general, would conclude him to a greater extent than he should be found guilty. It is obvious, however, that such cannot be the case; because if the defendant may be subjected on proof of having illegally conveyed a part only of the land alleged in the declaration to have been thus conveyed, the record would not conclude him from shewing of what particular portion of the premises the conveyance was free from objection.

A new trial, therefore, is not advised.

In this opinion the other Judges concurred, except Church, J., who was not present.

New trial not to be granted.