
    LEMUEL SAWYER vs. WILLIAM JARVIS.
    In trespass for false imprisonment, the plaintiff proved, that, under a claim of right, he entered a field cultivated and occupied by one cf the defendants, and gathered and took away corn there growing, whereupon he was arrested for petit larceny by the defendants, and committed to jail. The defendants then offered to prove, that the plaintiff’s land had been sold by the sheriff, under an execution against the plaintiff himself. This evidence was offered in mitigation of damages, and rejected by the Court below; Held, that, under these circumstances, the evidence should have been received.
    Appeal from the Superior Court of Law of Camden County, at the Fall Term, 1851, his Honor Judge Settle presiding.
    This was an action of trespass for an assault and’battery, and for false imprisonment, and was tried at Camden, Fall Term, 1851. Pleas, not guilty, justification, Statute of Limitations.
    
      .On the part .of -the plaintiff, it was proved, that, in the pah Term of 1.8.50, he was arrested by the defendant, Hum-phries, at the instance of the defendant, Jarvis, carried before the defendant, Ferebee, a magistrate of the county, and thence carried by the said Humphries, under the order of the said Ferebee, and committed to the prison of the county. The plaintiff also gave evidence of acts and declarations of the defendant, Jarvis, at and about the time of the arrest, tending to show malice in him, and previous to the arrest.
    The defendants exhibited a paper writing, purporting to be a State warrant against the plaintiff, signed by a Justice of the Peace of the county, and proved that the same was in the hands of the defendant, Humphries, at the time of his making the arrest, and that he, Humphries, was an acting constable of the county. This paper was not offered in evidence, for the purpose of justifying, but in mitigation of damages only, and is, therefore, not deemed necessary, to be made part of the case.
    In further mitigation of damages, the defendants showed that in the year 1850, the defendant, Jarvis, was in possession of a tract of land in said county, claiming title thereto, and ■raised upon it a crop of corn; that, after the corn was matured, the plaintiff and three other persons entered the field in the day time, and were there found by the defendánt, Jarvis, gathering and carrying away the corn, .and he thereupon caused the plaintiff to be arrested under the warrant aforesaid.
    The plaintiff then proved, that he entered the field under a claim of title, and with the advice of counsel, and that, soon after Jarvis had taken possession, he told him, he need spot .cultivate the land, for he, the plaintiff, would reap the benefits. The defendants then proposed, in further mitigation of damages and to rebut malice, and to show that Jarvis only desired to protect his property, to prove title -in him (Jarvis) by showing a judgment against the plaintiff, an execution, a sale, and the sheriff’s deed to him for the premises. This evidence the Court declined to receive.
    His Honor instructed the jury, at the request of the plaintiff’s counsel, to return a verdict of not guilty, as to the defendants Ferebee and Humphries; and as to the defendant Jarvis, the Court instructed the jury that the sole enquiry for them was as to the amount of damages, and that, in estimating them, they could take into consideration the provocation which the defendant Jarvis had received in having his corn taken away from him in the manner described. The jury rendered a verdict in favor of the defendants, Humphries and Ferebee, and against the defendant Jarvis, upon the issues. The defendant, Jarvis, moved for-a rule on the plaintiff to show cause why a new trial should not be granted, for error in rejecting the evidence offered, which was granted, and on argument discharged. Judgment for the plaintiff. Appeal prayed, by the defendant, Jarvis, and granted.
    
      Smith and Jordan, for the plaintiff.
    
      Ehringhaus, for the defendant.
   Pearson, J.

In an action of this kind, juries are allowed a discretion on the subject of damages, so as not merely to give a compensation for the injury actually sustained by the plaintiff, but to go farther, and increase the damages, when there are circumstances of aggravation, as a punishment to the defendant by way of “ vindictive” or “ exemplary damages.”

When the Court is called on to impose a discretionary fine, there is a greater latitude as to receiving-evidence, than is admissible in reference to the trial of the issues in the cause, before the jury, for the reason that as the fine is a matter of discretion, it is proper that the Court should be put in possession of all the circumstances that should regulate it. The same reason would seem to apply to a case, where, supposing the jury to find all “ the issues in favor of the plaintiff,” they are expected to give damages by way of punishment, to make an example of the defendant. In this case, for the purpose of mitigating the damages, the defendant proved, that he was in possession of a field, and had raised a crop of corn, and finding the plaintiff in the field gathering and carrying away his corn, he caused him to be arrested, we presume, upon a charge of larceny, although the case does not so state. The proceeding was irregular and void, and this action is for the false imprisonment. To, aggravate the damages, the plaintiff was then allowed to prove, that he had entered the field under a claim of title, and with the advice of counsel; and that, soon after the defendant took possession of the land, the plaintiff told him he need not cultivate it, for he, the plaintiff, would reap the benefit. In reply, the defendant offered to show a judgment, execution and sheriff’s deed, under which the land was sold as the property of the plaintiff and had been purchased by the defendant. This was objected to, and the Court refused to admit it.

It is certain, that great inconvenience would be the result, if in trying the issue, in a case like the present, evidence was admissible, involving the question of title; but in regard to the damages, the title would have had an important influence with the jury, and under the very peculiar circumstances, we can see no reason for excluding the evidence. The question would be received by the jury in one of two ways.

The plaintiff under a claim of right, and by the advice of a lawyer, entered the field, and began to pull corn, for the purpose of asserting his title ; thereupon, the defendant, instead of bringing an action of trespass, takes out a State’s warrant, and has the plaintiff put in jail. This conduct, on the part of the defendant, was “ high-handed and malicious, and he should be made an example of.”

The defendant was in possession of the field, and had made a crop of corn, — thereupon the plaintiff enters, and begins to pull the corn. His claim of right is all a pretext; no lawyer ever advised him to pull that corn. For the defendant had purchased this very land at Sheriff’s sale,' “ when it was sold as the property of the plaintiff, and the defendant has the Sheriff’s deed for it.” The fact that, when the defendant took possession in the Spring, and commenced his crop, the plaintiff “made his threat,” that “he would reap the benefit,” shows that he is a lawless man ; and we think it was well enough that he was put in jail far a while.

Looking at “ this side,” the Jury assessed $500 damages;'looking at “that side,” they would, probably, have assessed sixpence; and the question is, does the inconvenience, which may result from the admission of evidence of title, in an action like this, confine it to the question of damages, and confining it to a reply to evidence offered by the plaintiff in aggravation, justify the exclusion of evidence, from which the Jury would be able to look at both sides of the case ?

We think the evidence, under the peculiar circumstances, ought to have been received.

Per Curiam. Venire de novo awarded.  