Janvrin v. Scammon

Eastman, J.

By section 3 of chapter 207 of the Revised Statutes, it is provided that if any person shall throw down or leave open any bar, gate or fence belonging to or enclosing any land holden in common, or belonging to any particular person, or shall aid therein, he shall for every such offence forfeit and pay treble damages to the person injured, and also a sum not exceeding fifteen dollars, according to aggravation of the offence.

By the fifth section of the same chapter, it is provided that in any case which may arise under the preceding sections, the plaintiff may proceed as at common law, or the plaintiff, his agent or attorney, may make oath that certain acts, set forth in the declaration, have been committed, and that he suspects that the defendant committed such acts, and the court upon such and other evidence to be offered by the plaintiff, may award him damages and costs as aforesaid, unless the defendant shall acquit himself upon oath, to be administered by the court, in which case he shall recover of the plaintiff double costs.

Upon these sections the plaintiff contends that his action was founded, and that under their provisions he was entitled to put the defendants on oath, as provided in the fifth section.

But the plaintiff’s declaration was not drawn upon the statute. It is in the ordinary common law form of trespass quare clausum; and there is nothing in it showing the action to be upon the statute. But even if it had been in *287 tended as such, it would be bad, for debt and not trespass is the correct form of action to enforce the penalty given by statute for injuries of the kind complained of. This was settled in Morrison v. Bedell, 2 Foster’s Rep. 234. As we said in that case, the recovery under the statute is strictly and solely for a forfeiture and penalty. In the terms of the section upon which the plaintiff might have founded his action, if the facts would warrant it, it is provided that the wrong doer shall for every such offence forfeit and pay the amount named. And this is not in the nature of damages for the injury done, but is a penalty for the wrongful act committed.

The distinction which is suggested in the argument, and which is supposed to be pointed out in Morrison v. Bedell, page 240, does not exist in the manner contended for. The only recovery which can be had upon the statute is by an action of debt, and the declaration should be a special one upon the statute, in order to bring the action within its operation and effect.

The distinction alluded to, in Morrison v. Bedell, by the learned judge who delivered the opinion in that case, is that which exists between a penal statute and one giving increased damages or costs to a plaintiff. In a suit upon a penal statute the action should be debt; it is to recover a forfeiture ; while where the statute simply provides that the plaintiff shall recover double or treble damages or double costs, the form may be according to the nature of the injury. In the latter cases the statutes only affect the mode of entering up judgment after the real damages have been found by the jury. The provision giving plaintiffs, under such circumstances, increased damages or costs, is an authority and direction to the court as to the mode of entering up judgment after the damages, that is, after the actual single damages have been found and assessed by the jury; so that if the statute should provide for the recovery of double damages, the court would order the amount found by the jury *288 to be doubled in making up the judgment. And this the authorities cited in Morrison v. Bedell clearly show. Clark v. Worthington, 12 Pick. 571; Worster v. Proprietors Canal Bridge, 16 Pick. 549 .

Because the statute fixes the forfeiture at treble the actual damages, that does not make it a statute for the recovery of increased damages, inasmuch as the treble damages are declared to be the penalty and forfeiture. And it is no objection to the maintaining of debt for the recovery of a forfeiture, as is contended by the plaintiff, that the amount may depend on the finding of the jury. Warren v. Doolittle, 5 Cowen 678; Cross v. The United States, 1 Gallison 2 6; Com. Dig. Pld. 2, S. 14; Wyford v. Tuck, 1 Bos. & Pul. 458.

The error into which the plaintiff has fallen appears to have arisen from the form which the forfeiture is made to take by the statute. The fact that it is fixed at treble the damages to the person injured, has apparently led him to construe the statute as one for increased damages merely, instead of a penal statute as it is.

Our views of the law being as expressed, the first question presented by the case is easily determined. The provision of the statute that, “ in any' case which may arise under the preceding sections,” the plaintiff may proceed as at common law, or may make oath that the acts set forth in his declaration have been committed, and that he suspects the defendant committed them, and that the court shall award judgment unless the defendant shall acquit himself upon oath, applies to those actions and those only which are brought upon the statute, and where the declarations are specially drawn upon the statute. If the declaration is properly drawn, so as to show that it is founded upon the statute, the plaintiff has his election either to proceed and prove his case in the ordinary way, as at common law, or to make oath himself, and to put his antagonist to acquit himself upon oath. But this provision of the statute applies only *289 to cases arising under the statute itself, where a special declaration has been drawn upon it. The party cannot tender his own oath in this way, in a common action of trespass quare clausum, such as is the form of action here. The ruling of the court, therefore, in refusing the motion for judgment against the defendants, unless they should acquit themselves upon oath, was correct.

The next question presented by the case relates to the correctness of the ruling, by which the court refused to limit the costs of Small.

The limitation of these costs was, under the circumstances, a matter resting in the sound discretion of the court below. This is nothing in our statute or practice imperative in such cases, and it was proper for that court to say whether, upon the facts presented, the costs should be limited or not Having exercised that discretion, this court will not interfere to change the order. We have repeatedly held that we do not interfere with the discretionary rulings of the common pleas, unless that court transfers the question of discretion for us to determine.

We think, too, that the ruling of the court was also correct in declining to require the witness to answer the questions put, after he had stated that his answers might subject him to a criminal prosecution. A witness cannot be compelled to answer a question, if his answer will expose him to be criminally prosecuted; and he is not bound to testify to any particular fact, if a full account of his knowledge of such fact would so expose him. If the fact to which he is interrogated forms but one link in the chain of testimony which is to convict him, he is protected.

Whether the answer may tend to criminate or expose the witness, is a point which the court will determine under all the circumstances of the case; but without requiring him fully to explain how he might be criminated by the answer, which the truth would oblige him to give; for if he were obliged to show how the effect would be produced, the pro *290 tection which the rule is designed to afford would be destroyed. Such is the doctrine of the books. People v. Mather, 4 Wend. 229 ; Marshall, C. J. in 1 Burr’s Trial 244 ; 1 Greenl. on Ev. § 451; State v. K. 4 N. H. Rep. 562 ; State v. Foster, 3 Foster’s Rep. 348.

The privilege is personal to the witness, and when a question is put, he in the first place decides for himself whether the answer will criminate him, and whether he will avail himself of his privilege. The court, also, will frequently interfere and inform the witness of his privilege, when they see that the question may lead to an answer tending to criminate him. When he places himself upon his privilege he will be protected, unless the court can see from the circumstances of the case that he is in error, or that it is a mere pretext on the part of the witness to avoid answering, and that his answer cannot, from the nature of things, criminate him. It must be manifest, however, that in many cases it will be impossible for the court to anticipate what effect the answer may have, and wherever they cannot see that he will not be criminated, the privilege will be recognized and protected. State v. Foster, 3 Foster’s Rep. 348, and authorities there cited.

Upon these principles, we think that the court decided correctly in denying the motion of the plaintiff. The counsel moved the court to require of the witness to explain how his answers to the questions might tend to subject him to a criminal prosecution, and also that the witness be compelled to answer the questions. It would have been clearly wrong to have granted the first part of the motion; and as to the latter part there is nothing reported in the case to show that the statement of the witness that the answers would criminate him, was incorrect. The court, at the trial, from the appearance of the witness and other circumstances, could better judge of the matter than this court, and we think the ruling was well enough and founded upon correct principles.

*291 But the nonsuit must be set aside. The evidence, though slight, was still competent to be considered, and being competent, should have been submitted to the jury.

The plaintiff proved that the defendant was in such a situation that he could have committed the trespass. He was near the place where the fence was thrown down, and was there on the evening before the act ■was committed. He proposed also to show that the defendant was hostile to him. In what this hostility consisted does not appear; but if it was evidenced by threats of injury or the like, it would have been competent. The plaintiff also showed that the defendant attempted to prevent Small, who was in company with him on the evening before the trespass, from testifying in the case. And there was a conversation about lowering the fence. These circumstances had a tendency to show the defendant guilty of the trespass. Of their sufficiency we are not to judge, but the jury. But they should, we think, have been submitted to the jury for their determination.

Nonsuit set aside.