89 Me. 596 | Me. | 1897
The plaintiff sues the defendants in an action of trespass on the case for forcibly occupying plaintiff’s barn, and wrongfully keeping him out of possession o'f the same, and he avers in the declaration accompanying the writ that the conduct of the defendants was malicious.
. On account of this special allegation of malice the defendants contend that the act charged against him must be proved beyond a reasonable doubt. If that ever was the doctrine in this State it is not the law now. While perhaps such a rule was at first inconsiderately allowed, by later and well-considered cases it has been rejected.
Further, the defendants contend that, inasmuch as malice is alleged, it must be proved. That is not so. The averment was an entirely unnecessary one — merely surplusage. If I wrongfully injure your property, real or personal, it matters not what my intention may be about it, — I am liable for the injury. With or without malice the actual damages would be the same. And still it may not be incorrect pleading to allege malice if exemplary damages are claimed, or if the plaintiff desires such a special finding by the jury of malice as will entitle him under a special statutory provision to execution, on his judgment, against the body of the defendant on which he cannot disclose until after an imprisonment of sixty days. But here, however, neither special damages or special execution is claimed by the plaintiff. The averment of malice could be expunged from the declaration without any effect whatever.
Exceptions overruled.
