
    Hamilton C. Payne et al. vs. John Green.
    In an action of trespass, the defendants aslced the court to instruct the jury that if they believed that the defendants acted by summons of an officer to assist him in executing legal process, and did not exceed their authority in their acts, they should find for the defendants ; held, that the instruction was legal and proper and ought to have been given; legal process is as much a justification to those summoned to aid an officer in executing it, if they do not commit excesses, as to the officer.
    Charges must be given with reference to the evidence before the jury, they must be applicable to the state of case made out.
    P. and others were sued in trespass, in five counts, for five different trespasses; the declaration charging the trespasses to have been committed on a certain day, and on divers other days, between that and another day; the defendants plead not guilty, generally, and the parties agreed that any special matter might be given in evidence which might have been pleaded; the plaintiff proved several trespasses by the defendants, all committed within the time laid, some committed while an officer was present with a search-warrant, and they were by his summons aiding him in the search, and others, before the officer was present; the defendant on the trial asked the court to instruct the jury that if they believed the defendants acted by summons of the officer to aid him in executing his warrant, and they did not exceed their authority, they must find for the defendants : Held, that under the pleadings and proof the instruction was applicable and ought to have been given.
    The plaintiff in trespass by alleging trespasses to have been committed on a certain day, and on divers other days between that and another day, makes the time a descriptive part of the trespass, opens the door for proof as to any trespass committed within that time, but excludes all others.
    Where there are several counts in a declaration in trespass, and a general plea of not guilty, with leave given to give any special matter in evidence that might be pleaded, the plea will be as broad as the declaration, and will be considered as justifying to the counts collectively and separately and to each trespass, where the counts are so framed as to include more than one trespass.
    It is right that the jury should have the law explicitly laid down to them ; and if the court below refuse an instruction which is the law and applicable to the case, the high court of errors and appeals will reverse the judgment notwithstanding the circuit court may have given other instructions from which inferentially, by mere inference of law, as a consequence, the proposition of law embodied in the refused instruction, might have been drawn.
    In error from the circuit court of Lafayette county; Hon. Hugh R. Miller, judge.
    John Green, on the 17th day of February, 1841, sued Hamilton C. Payne and seven others in trespass vi et armis, in the circuit court of De Soto county. The first count alleged that “ on the fourth day of July, 1840, and on divers other days, and times between that day and the commencement of the suit in De Soto county, defendants broke and entered the close of the plaintiff, &c.” The second count alleged that “ the defendants on the days and years aforesaid ” seized, took and carried away certain property of the plaintiff, &c. The third count “ that on the days and years aforesaid,” they assaulted Adela Green, the wife of the plaintiff; the fourth count “that on the 20th of February, 1841,” they assaulted and beat the plaintiff; the fifth count “ that on the day and year last aforesaid” they assaulted and beat the plaintiff and Samuel Green, a minor, his son. The defendants appeared and plead not guilty to the whole declaration; and it was agreed that the defendants might give any special matter in evidence which might have been pleaded; and the plaintiff any special matter which might have been rejoined. After various mis-trials and continuances the venue was changed, on the application of the defendants, to Lafayette county, in April, 1846.
    At the October term, 1846, a trial was had in that county, and a verdict rendered for the plaintiff for the sum of $2250. A motion was made for a new trial and refused.
    It is not necessary to set out all the evidence given on the trial. It will be sufficient to state but a portion of it. Elizabeth Berry, a daughter of plaintiff, stated that in the fall of 1840, the defendants, with others, some twenty in number, came to her father’s house, climbed over his fences, entered the yard, and avowed their determination to drive him from the neighborhood, &c.; after staying some time, they went off up the road, and in a short time returned with W. L. G. King, an officer, who was not with them before; when they came the second time they said they had a search-warrant to search for a mill-band, &c., and the search accordingly took place; some time after this, all in the fall of 1840, the defendants came again, the plaintiff being from home, and took possession of a negro of the plaintiff’s, and were guilty of other trespasses, &c. Nancy Scheeltz, another daughter of plaintiff, proved similar facts as to the defendants entering the close and house of plaintiff, before the officer came with the warrant, and their subsequent return at a different time, and their conduct on those occasions, which need not here be further detailed. David Berry, the husband of the first witness, was present when the search under the search-warrant was conducted, and saw nothing wrong. It was in September, 1840. This was the substance of plaintiff’s testimony.
    The defendants introduced George Foote, who was mayor of Hernando, and ex officio justice of the peace, who proved that on the 12th of October, 1840, he issued a warrant to search the premises of John Green, charged with stealing a mill-band belonging to Edward Orne; that he deputed Washington L. G. King as an officer to make the search ; he also issued a warrant for the apprehension of a slave named Jim, of Green’s, charged with larceny, and deputed King to serve it. This warrant was produced, and was indorsed, “ executed Oct. 13th, 1840, W. L. G. King.” W. L. G. King testified that he was the officer who served the warrants; he summoned the defendants to aid him; the record recites that “ the defendants then read the warrant in their justification with the returns;” and the witness King proceeded to state that the execution of the warrants was accomplished in an orderly manner; no improper language, nor threats, nor insolence, used, &c.; the slave, Jim, was taken before the magistrate and whipped for the larceny. Many other witnesses were examined, but for the proper understanding of the opinion of the court their evidence need not be stated.
    The court, at the instance of plaintiff, instructed the jury :
    1. That in giving damages they had a right to consider of the motives of the trespassers and if they were found to be malicious and to proceed from a reckless disregard of the rights of others, they could give vindictive damages :
    
      2. If process be used to cover oppression and trespass, it is a circumstance of aggravation and not of justification.
    3. The entry of a crowd into the yard of another, in a threatening attitude, is a trespass.
    4. Persons, when in the service of legal process, by going in unusual numbers, and acting in a rude and threatening manner, may become trespassers.
    
      For the defendant the court gave these charges :
    1. An officer, to whom process is directed, must judge whether aid is necessary to the execution of that process, and citizens are required to obey his summons when called on by the officer.
    2. If the prosecution in this case before the magistrate was malicious, and without probable cause, an action will lie against the prosecutor for damages.
    The court refused to give these :
    1. If the jury believe that the defendants acted by summons of an officer, to assist him in executing legal process, and did not exceed that authority in their acts, then they must find for the defendants.
    The defendants sue out this writ of error.
    
      T. J. Word, for plaintiffs in error,
    Cited 2 Greenl. Ev. 272, 273, § 88; lb. 634; 3 Term Rep. 292-296; 8 John. R. 69; 13 lb. 444; 5 Wend. 240; lb. 170; 6 Cow. 176 ; 3 Phil. Ev. Cow. and Hill’s notes, 1207, n. 869; lb. 1219, n. 862; How. & Hutch. 430, § 21.
    Watson, for defendant in error,
    Cited 14 Pet. 448; 5 Cow. 173,; 9 lb. 840 ; 5 How. Miss. R. 495; 11 East, 451; 6 How. Miss. R. 46; 2 S. & M. 388; 6 lb. 218; 8 lb. 401; 13 Ohio 508, 522; 3 Day, 447, 450 ; 2 Hump. 140 ; 7 S. & M. 270 ; 2 Caines’ R. 85; 10 John. 451; 7 How. Miss. R. 328 ; 1 S. & M. 22; 4 lb. 193; 8 lb. 298; Graham on New Trials, 301, 302, 305.
    
      H. W. Walter, for plaintiff in error,
    in reply,
    Cited 3 Phil. Ev. Cow. and Hill, 1207; 3 Term R. 153 ; lb. 535; 1 Chit. Plead. 152, 214; 5 How. Miss. R. 495; 3 Wend. 418 ; lb. 102; 15 lb. 647; 5 lb. 191; 3 Dev. 485 ; 11 Pick. 348; 11 Wend. 83; 3 Bing. 319; 10 Barn. & Cres. 145; 8 S. & M. 145; 2 Greenl. Ev. § 278 ; lb. 89; Peake’s Ev. 505; Buller’s N. P. 89; 2 Ired. Law Rep. 216 ; 2 Greenl. Ev. § 272-286; 4 Hawk’s Law and Eq. 61; 7 How. Miss. R. 365 ; 2 Hayw. 53; 2 Ired. Dig. 802; 1 Greenl. Ev. § 86.
   Mr. Chief Justice Sharkey,

delivered the opinion of the court.

This was an action of trespass quare clausum fregit. The declaration contains five counts for different trespasses, and the defendants pleaded not guilty generally, and it was agreed that they might give any special matter in evidence which might have been pleaded. The jury found for the plaintiff $2,250 damages, and the case comes up on exceptions taken during the trial, as well as from a refusal to grant a new trial.

The court refused to give two charges asked by defendants, the first of which was, that if the jury believed the defendants acted by summons of an officer to assist him in executing legal process, and did not exceed their authority in their acts, they should find for the defendants.

The principle contained in this charge is undoubtedly a plain legal proposition. Lord Mansfield said, in Cooper v. Booth, cited 2 Starkie’s Ev. 819, it would be a solecism to say that the legal execution of a legal warrant could be a trespass. The defendants had given in evidence a search-warrant, and proved by the officer that they had been summoned by him to assist in its execution. It was as much a justification to them as to the officer, if they did not commit excesses.

But it is said the court was not bound to give this charge, because the plaintiff had proved a trespass committed before the officer was present with his warrant. Charges should always be given with reference to the evidence before the jury. They must be applicable to the state of case made out. It is true that the defendants cannot justify under the process for acts committed before the officer arrived; but -the state of the pleadings must have an important bearing on this question. In each count, except the fourth, the trespasses are charged to have been committed on a certain day, and on divers other days, between that another day. The effect of so laying the trespasses in the declaration, is to make the time a descriptive part of the trespass, and to open the door for proof as to any trespass committed within that time, but to exclude all others. 16 Mass. R. 470; Gould’s Plead. 106. Now what were the pleas? Under the argument the defendants must be considered as justifying to the counts collectively and separately, and to each trespass. In other words, the plea is as broad as the declaration. The plaintiff did introduce proof of several trespasses, some committed before the officer was present and some after. The defendants justified as to each under a search-warrant. It was, therefore, a question of fact for the jury whether the defence was proved as to all the trespasses, or only to part. The question of law was, whether trespassers can justify under a warrant; the question of fact was, whether the defendants had acted under process in every instance. The plaintiff was seeking to recover for. several trespasses; the defendants could give an excuse for some, but not for others. The plaintiff had so framed his declaration as to admit proof of several trespasses within a given time, and the defendants had a right, under the pleadings, to defend in the same way, by proving justification as far as they could. If the plaintiff had laid separate trespasses in separate counts, the defendants would have been required to answer each, and then the charge asked would have been improper as to trespasses not justified.

The only point in reference to this charge, on which a doubt could be raised, is, whether it had not been given in substance in the preceding charge, which was, that an officer to whom process is directed nmst judge whether aid is necessary to the execution of that process, and citizens are required to obey his summons when called' on by the officer.” Whilst it would seem to follow as a consequence, that they would be excused when acting under a summons, which they were bound to obey, yet this is a mere inference of law, and it was proper that the jury should have been more explicitly informed. The first charge seems to have been but a preliminary, or foundation to the second.

As on this ground the judgment must be reversed, it is unnecessary to notice others. There is no principle of law presented which must necessarily arise in a second trial.

Judgment reversed and cause remanded.  