32 Conn. 335 | Conn. | 1865
The statute on which this action is brought contains various provisions for the preservation of game and fish. The 5th section, which is especially relied upon, enacts as follows:—“ Any person who shall enter the lands or premises of any resident of this state with any fire-arms or other implements for the purpose of hunting or fishing contrary to the provisions of this act, at any season of the year, without the consent of the owner of said land or premises, shall be deemed guilty of a trespass, and shall forfeit and pay to the owners or possessers of such land and premises the sum of ten dollars, in addition to the provisions of this act, to be recovered by an action on this statute.”
The defendant claimed that he entered the premises by consent of the owner. The plaintiff replied that the license was revoked 'by his wife acting under his express authority, and that the defendant continued to hunt after the revocation. The defendant denied that he had any knowledge or means of knowing that she had such authority, and further insisted that even if there had been a legal revocation of the license, yet as his original entry had been by consent, he could not be made liable under the statute for subsequently remaining on the
The court very properly held that the wife could not revoke her husband’s license unless Specially authorized by him, but that there was no necessity that her authority should be expressly disclosed to the defendant. It was sufficient if the circumstances indicated to him an apparent authority to do so. The court then went on to state the various facts claimed by the plaintiff to be proved, and said that if these facts should be found to be true, they, “ and other circumstances attending the transaction,” would justify the jury in finding “ sufficient apparent authority,” so as to make the revocation effective. The words “ other circumstances ” may be left out of consideration, as no others were proved or claimed, and if they had existed they should have been particularly specified in the charge.
The precise question is, whether the defendant, from the facts within his knowledge as proved, was bound to understand that she had such authority, or at least to suppose so and to make enquiry on the subject. The circumstances ennmerated by the court are, 1st, that the plaintiff was absent from home on the day of the trespass; 2d, that he left the premises in the sole care of his wife ; 3d, that he gave her express directions to forbid hunting and to order trespassers away. Now of these things the defendant, for aught that appears, was entirely ignorant, and there was nothing to call his attention to them. • The other facts are, that she ordered him away, that he knew she was the plaintiff’s wife, and that he did not ask for her authority or refuse to leave on that account. Certainly there was nothing in these circumstances calculated to inform the defendant of her special authority or to stimulate an enquiry. He knew that her husband had given him a direct license, and what reason was there to suppose that without notice or apparent cause he had ordered her to recall it ? The law implies no such powers in the wife, but the reverse, and she claimed none at the time. Her act would not of itself convey any intimation of the will of her husband. The defendant might well suppose that of her own motion she
On the question of revoeation we think that the charge was incorrect.
On another part of the charge also we accept the ideas of the defendant. The unlawful entry upon the land, which calls down the penalty of the law, is the. first crossing of the owner’s line. This is one entire and single act. It can not be divided or multiplied, and it constitutes a complete offense. But the act in this case was by consent of the plaintiff. It is true that there are certain instances where an entry having been made under authority of the law and not merely by c'on-sent of the owner, subsequent acts of abuse render the party a trespasser ab initio. But the principle - is not applicable to a case like this, instituted upon a penal statute, in relation to which the rule of construction is so familiar. The legal fiction that a fresh step on the land after revocation of the license is a new entry ought not to- be adopted for the purpose of creating a crime and inflicting a penalty.
We advise a new trial.
In this opinion the other judges concurred.
