
    Jane Carroll vs. Francis P. Rigney.
    A landlord cannot maintain trespass for injury to the premises let, done by the tenant during the tenancy. His remedy is trespass on the case.
    Pub. Stat. E. I. cap. 196, § 30, provides: “ Whenever an action of trespass shall be brought before any Justice Court, and the defendant shall plead the general issue, he shall not be allowed to offer any evidence that may bring the title to real estate in question.”
    
      Held, that the word “ title ” meant the right of possession, not the fact of possession.
    
      Held, further, that in trespass before a Justice Court evidence maybe given to disprove the fact of the plaintiff’s possession, if it can be given without bringing the right of possession into dispute.
    When, without objection, a defendant introduced evidence affecting both the fact and right of the plaintiff’s possession, —
    
      Held, that, in the circumstances, the evidence was good to the extent and for the purposes allowed by the statute.
    Exceptions to the Court of Common Pleas.
    
      July 6, 1885.
   Dureee, <C. J.

Tbis is a trespass for injuries to the plaintiff’s barn. The case was begun in the Justice Court of the city of Providence. The only plea pleaded was the general issue. The case was carried by appeal to the Court of Common Pleas, where, on trial to the jury, a verdict was rendered for the plaintiff for §55.00. It comes before us on exceptions. The bill of exceptions makes the following statement, to wit: “ The action was trespass vi et armis, and was brought to recover damages, done by a tenant by the month in possession, to a barn and the earth thereunder. The plaintiff offered testimony tending to prove that manure was thrown upon the barn floor to the depth of two or three feet, and left there a long time ; that the defendant’s horse was cast one night and kicked down a stall, and that the mangers, feed-boxes, etc., were destroyed, and the barn otherwise seriously damaged and torn during the tenancy. The barn belonged to the plaintiff, and she leased the land on which it stood. The defendant was a tenant by the month. The defendant offered testimony to show that he was a tenant by the month ; that he did not injure the premises; but that one night his horse, being seized by the colic, rolled about while in great pain, and kicked down the stall.” The bill of exceptions further states in effect that, at the conclusion of the testimony, the court instructed the jury that the plaintiff was entitled to recover if the barn was injured by the defendant, or by his horses, or servants acting under his direction, in the manner testified to by the plaintiff and her witnesses. The court also refused to charge as requested by the defendant in several requests.

The defendant contends that the court erred because, as a rule, a landlord cannot maintain trespass for injuries to the premises let, done by the tenant during the tenancy, and because the possession was in the defendant. Without doubt these positions are generally correct. 2 Greenleaf on Evidence,*§ 616. The plaintiff contends that where the general issue alone is pleaded, the plaintiff’s possession need not be shown, citing Addison on Torts, §§ 424, 425. The statement in Addison, however, rests not upon the common law rule of pleading, but upon the new: rules adopted Hilary Term, 4 Will. 4. The new rules do not govern here. But we have a statute which provides as follows, to wit: “ Whenever an action of trespass shall be brought before any Justice Court, and the defendant shall plead the general issue, he shall not be allowed to offer any evidence that may bring the title to real estate in question.” Pub. Stat. R. I. cap. 196, § 30. It has been held in Massachusetts, under a similar provision, that, when the defendant pleads only the general issue, he cannot give evidence that the plaintiff was not in possession. Lynch v. Rosseter, 6 Pick. 419; Stone v. Hubbard, 17 Pick. 217. But in New York, under similar provisions, it has been decided that the question of actual possession is not one of title under the statute, and accordingly that, when the plaintiff adduces evidence to show his possession, the defendant is entitled to give counter evidence to prove possession in himself. Ehle v. Quackenboss, 6 Hill N. Y. 537; Fredonia & Sinclearville Plank Road Co. v. Wait, 27 Barb. S. C. 214. We think the New York decisions rest on the better reason, and are more accordant with the view which has been generally taken of our statute. The word “ title,” as used in our statute, signifies, not the fact of possession, but the right of possession, which may exist without the fact, and accordingly evidence may be given to controvert the fact, whenever it can be given without bringing the right in question. The purpose of the statute was not to exonerate the plaintiff from the burden of making out a primd facie case by proving his possession, as well as the acts complained of as trespasses, or to preclude the defendant from controverting such case by disproving the fact of possession, but only to require that questions of disputed right, if any there are, shall be raised on the record, and carried to a higher court for adjudication. In the case at bar, it is true, thé defendant did more than controvert the fact of possession; he proved that he was himself in possession as tenant of the plaintiff: but the evidence on this point went in without objection, and indeed, so far as appears, the tenancy was not disputed. We do not see, under these circumstances, that the fact that the evidence went further than the statute allows, would render it any the less effectual to the extent and for the purposes which the statute allows.

Edward E. Bassett Frederic Fayes, for plaintiff.

George J. West, for defendant.

Exceptions sustained.  