Dent v. Hancock , 5 Gill 120 ( 1847 )

Dorsey, J.,

delivered the opinion of this court.

After the testimony in the cause had been closed, as appears by the bill of exceptions, “the plaintiff then prayed the court to instruct the jury, that if they find the aforegoing facts to be true, the plaintiff is entitled to recover.” Which instruction being objected to, “ upon all the aforegoing evidence, the said Priscilla E., by her counsel, then prayed the court to instruct the jury, that if they find, from the evidence in this cause, that the said William K. Dent opened the door of the barn without any authority or directions from the said Priscilla E., or Nathan S., her bailiff; and that neither the said Priscilla E., or her bailiff, aided or abetted said William K. in opening said door, but that the same was voluntarily done by the said William K.; and that the said William K. was not the agent of the said Priscilla E., or Nathan S. at that time; that then the said plaintiff is not entitled to recover, upon the issue joined to 4th plea of said plaintiff.”

The refusal of the court below, to grant this, the appellant’s first prayer, forms the first subject submitted to our review in this court The only issue joined on the fourth plea, was, whether “ the said Priscilla E. did break and forcibly enter the barn and premises of the said William, in making the distress complained of. The prayer concedes, as it might well do, that to levy a distress, a landlord, for the purpose of making it, and not acting in conformity to the statute on the subject, is not authorized to break open and enter the door of a barn which is barred or bolted, with a view to prevent from without an entry thereat. But if the door be not so bolted, or barred, or is simply shut or latched, with the ordinary means of raising the latch left on the outside of the door, then is an entry at such door lawful, to make a distress fo.r rent. And if a door so bolted or barred be forcibly broken open by a person not acting under the authority, or sanction, or at the instance of the landlord, or his bailiff, the person required to make such distress is authorized to enter for that purpose at the door thus forcibly broken open. The facts, therefore, which by this prayer were made the basis of the instruction prayed, if found by the jury, entitle the appellant to a verdict on the issue joined on the fourth plea. The court therefore were in error, in not granting the first prayer of the appellant.

By the second prayer, “the defendant, (below,) by her counsel, further prayed the court to instruct the jury, that if they find, from the evidence in the cause, that the door of the barn, opened by the said William K. Dent, was closed only at the time of said opening, and not fastened, then the plaintiff is not entitled to a verdict upon the fourth plea.” For the reasons stated by this court, in their decision upon the appellant’s first prayer, the county court erred in refusing to grant the second prayer.

In the third prayer, “ the said Priscilla E., by her counsel, further prayed the court to instruct the jury, that if they find, from the evidence in this cause, that said barn was not in the possession, and under the control of the plaintiff at the time of levying said distress, then said plaintiff is not entitled to a verdict upon the issue joined to the fourth plea.” In refusing this prayer, the county court were clearly right. The prayer concedes the forcible breaking open and entry into the barn, and the levying of the distress as stated in the fourth plea; but prays the court to instruct the jury, that if the barn were not in the possession of the appellee, that he was not entitled to recover, under the issue joined on the fourth plea; so far from such a fact, as to possession, justifying the course pursued by the appellant, it had no tendency but to aggravate the illegality of the distress; and showed that it was wholly unlawful, whether the entry into the barn were made with or without ■force.

The appellant’s fourth prayer, was, that the court “ instruct the jury, that the declarations of William K. Dent, mentioned in the aforegoing testimony, are not admissible evidence in this cause.” Whether the objections taken to the testimony were well founded or not, it is deemed unnecessary to inquire, because they were not made in due time. It is the duty of counsel, if aware of the objections to its admissibility, to object to the testimony at the time it is offered to be given, or if unapprised of such objections at the time the evidence had gone to the jury, he must raise his objections within a reasonable time thereafter. If he cross-examine the witness in regard to the inadmissible testimony, or offer testimony to contradict or explain it, a purely legal objection, which is disclosed on the face of the testimony itself, afterwards, comes too late. And the objection is equally too late, where a prayer or prayers have been first made to the court upon the evidence in the cause, or where the argument of the case before the jury has commenced. To allow a greater latitude, as to the time of raising such objections to testimony, might be productive of much inconvenience and injustice. It would give to the party having the right to object to the evidence, an opportunity of speculating on contingent advantages, that might result to him from the admission of the objectionable evidence. By such silent acquiescence, he might mislead the opposite party, and induce him to offer testimony, which in connection with the objectionable proof, might establish his rights; but if deprived of such connection, might be ruinous to his interests. What has been said, as to the time when objections to testimony-should be urged, is not to be applied to a case where the cause of objection depends on matters of fact •, of which the party objecting, has then, for the first time, acquired a knowledge. In the county court’s refusing the appellant’s fourth prayer, it committed no error.

By the appellant’s fifth prayer, the court below is prayed “ to instruct the jury, that if they find, from the evidence in the cause, that said barn door was fastened to prevent said Priscilla E. from levying said distress, and for the purpose of clandestinely removing said tobacco from the premises aforesaid, before a distress could be levied thereon, then the plaintiff is not entitled to a verdict upon the fourth issue.” According to all the proof in the cause, the county court were clearly right in refusing this prayer. The barn being part of the demised premises, the appellant had no authority forcibly to break open the barn door for the purpose of levying the distress •, notwithstanding the tobacco was deposited there for the fraudulent purpose assigned in the prayer. The Stat. of 11 Geo. 2, ch. 19, gives no warrant for such a proceeding, even if the requisition of the statute, as to the constable or peace officer, had been complied with.

The court below were in no error in refusing the appellant’s sixth prayer; the testimony in the cause being wholly inconsistent with the instruction prayed for. The county court having refused all the prayers of the appellant, upon the prayer of the plaintiff, gave two instructions to the jury, in each of which it was in error, according to the opinion expressed by this court, on the refusal to grant the appellant’s first prayer.

We concur with the county court in their refusal of the appellant’s third, fourth, fifth and sixth prayers, but dissenting from its refusal of the first and second, and from its instructions given on the prayer of the appellee, its judgment is reversed, and a procedendo awarded.

JUDGMENT REVERSED, AND PROCEDENDO AWARDED.