Tewksbury v. O'Connell

By the Court, Currey, J. This is an action arising under the Act concerning forcible entries and unlawful detainers as that Act stood in 1862 and 1863. The Court, before which the cause was tried without a jury, found that the premises were unlawfully held and detained from the plaintiff by the defendant, and that by reason thereof the plaintiff had sustained damage in the sum of one hundred and forty dollars; and in that sum the damages were assessed, and immediately thereupon trebled by the Court. Judgment was then entered for the restitution of the premises and for the damages as trebled.

The only point made by the appellant on the appeal is, that the Court erred in giving judgment for treble the damages assessed, because, he says, the damages were not claimed in the complaint.

The complaint, after setting forth the facts constituting the plaintiff’s cause of action, concludes as follows : “ Whereby the said plaintiff hath sustained damages by reason of the said unlawful and wrongful detention and holding over to the amount of one hundred dollars. Plaintiff further alleges that the monthly rents and profits of said premises, dwelling house, outhouses and improvements is reasonably worth twelve dollars a month,” and then follows the appropriate prayer for judgment.

The twelfth section of the Act referred to provides that “the damages shall be assessed, if claimed in the complaint as well for waste and injury committed upon the premises as for the reiits and profits during the detainer, and the verdict shall' also find the monthly value of the rents and profits of the premises; and the complainant shall be entitled to recbver treble damages .against the person against whom the judgment has been rendered; which damages shall be assessed by thd-Justice or jury, and when assessed shall be trebled by [265]said Justice, and entered as a judgment in the cause, upon which execution may issue.”

It will be observed the statute provides that the damages shall be assessed, if claimed in the complaint, as well for waste and injury committed as for the rents and profits during the detainer. The damages are not necessarily confined to compensation for waste and injury only, as these terms are understood in their proper technical sense, but the value of the rents and profits may enter into the estimate of damages, as the language of the statute clearly imports. If no waste or other injury be committed, the loss of the use and occupation of the premises may be the only damage sustained by the complainant, and that value when ascertained is the proper measure of damages in such case. These damages are to be ascertained, or in other words, assessed, by the jury or by the Court acting without a jury, according to the truth of the case; and when this is done, it is made the duty of the Court to treble them.