47 Ky. 430 | Ky. Ct. App. | 1848
delivered the opinion, of the Court.
The plaintiff in error sued the defendants in trespass.. The declaration contained tw.o counts — trespass quare clausum fregit and trespass upon the person of the? plaintiff.
The defendants filed nine pleas, and among them pleas' of liberum tenementum, and a joint and several plea of' not guilty.
Issues having been made up on all the pleas and a verdict and judgment having been rendered for the defendants, the plaintiff has brought the case to this Court.
Whether the Court below ruled the law correctly, upon the trial, is the only question for consideration.
The declaration alledges that “the defendants, with, force and arms, broke and entered the close of the plaintiff, in the county of Garrard, lying on the east fork of
The defendants then proved that the defendant, Mad-1 dox, also, had a close in the county of Garrard, lying upon the east fork of Sugar creek, 'and adjoining the lands of Samuel Jennings and Walter Adams.
In this state of the pleadings and proof, the Court instructed the jury: “That if they believed that at the time of the alledged trespass in the declaration mentioned, the defendant, Maddox, owned land in Garrard ■county, on the east fork of Sugar creek, adjoining the -lands of Samuel Jennings and Walter Adams, and that the defendant, Cook, had acted by the authority and the command, and as the servant of said Maddox, that in "that case the law, under the pleadings in the case, was for the defendants, and that they should find accordingly*”
This instruction was clearly erroneous.
As the defendant filed a general plea of not guilty, it threw upon the plaintiff the •onus of proving his case. It gave him the right, or rather the other pleas, although all affirmative, did not deprive him of the right of open-mg and closing. Me accordingly first introduced his testimony, which strongly, to say the least of it, conduced to prove the commission of the trespass, as alledged in the first count in his declaration, and upon •his identical close as thei-ein described. This testimony was properly before the jury, and proof by the defendants, that the defendant, Maddox, also owned and possessed another and different close, but of a similar description, viz: a close on the east fork of Sugar creek, adjoining the lands of Samuel Jennings and Walter Adams, did not have the effect to remove it from the , jury, nor did that mere fact constitute" any defense or ’oppose any obstacle whatever, to the plaintiff’s recovery. Had, however, the defendants filed no plea of not guilty, and proved that the defendant, Maddox, had a
The first instruction to the jury, given on the defendant’s motion, was substantially correct. The Court was also right in refusing the second instruction asked by the plaintiff. The first, with a slight qualification in regard to the last clause, should have been given. If the defendants, knowingly, opened the road over the plaintiff’s land, where it had not been viewed, and against his consent, and in a highhanded and threatening manner, the jury might, certainly, have found vindictive damages, and with such qualification, the instruction should have been given.
The judgment is reversed and the cause remanded, that a new 'trial may be granted without the payment •of costs, and for further proceedings consistent with this opinion.