Ellsworth, J.
We are fully satisfied that the defendant [485] is entitled to a new trial, for errors in the rulings and charge of the court, and we do not find it necessary therefore to consider the motion for a new trial on the ground that the verdict was against the evidence. We are inclined to the opinion that the jury erred in finding that there was a bona fide sale of the goods by Anthony to the plaintiff, and a change of possession. These points may however wear a different aspect on another trial, should one be had, and we prefer therefore to confine ourselves to the consideration of the questions of law presented by the other motion.
The first count of the declaration is trepass de bonis asportatis, upon which the plaintiff, if he recovered at all, was entitled to recover damages at least to the value of the goods and interest. The second is trespass for breaking and entering the plaintiff’s store, and carrying away the same goods. In this count the entry and the carrying away of the goods entered equally into the gravamen of the action, so that if the plaintiff had proved either, he was entitled to recover damages according to the proof. Holly v. Brown, 14 Conn., 255. Havens v. Hartford & N. Haven R. R. Co., 28 id., 69.
This distinction is perhaps of no great importance in the present case, for whether the taking of the goods be considered a part of the gravamen of the action in the second count, or only matter of aggravation, the value of the goods would be recoverable in either case; and therefore it was only important that, in assessing the damages, the jury should have been rightly instructed as to the rule which they were to follow ; which, we are constrained to think, was not done in this case.
And in the first place, since the case presented only a dispute about the title to the goods, whether they had been sold in good faith by Anthony to Oviatt or not, the jury should have been instructed that the plaintiff could recover for no, more than their true and just value. This is the well-settled rule of law, both here and in other states, and is/ well stated by Hinman, J., in White v. Webb, 15 Conn., 305. He says, “ In actions of trover and trespass for property taken and;" converted by the defendant, where there is fio malicious. [486] motive on his part, but the property is taken under a claim of right, and the real dispute is as to the title, the rule of damages is the value of the property at the time of the conversion and interest.” The same rule is laid down in the case of St. Peter’s Church v. Beach, 26 Conn., 355. See also Sedgwick on Damages, p. 539, and the cases cited in the argument, which we need not dwell upon.
We are not altogether certain what rule the judge intended to give to the jury; and this uncertainty of the charge, if there were nothing more, would dispose us to grant a new trial. The defendant had claimed the rule to be as we have stated, while the plaintiff had claimed it to be much broader, and sufficient to entitle him to recover, if at all, not merely the value of the goods and interest, but such damages as he had sustained in being broken up in business. The judge met these respective claims, not only by omitting to instruct the jury in conformity to that of the defendant, thus leaving them to infer that the defendant was wrong in his claim, but he told them that the defendant must make the plaintiff good for all the actual damage he had sustained at his hands resulting directly and naturally from the injury, which was so indefinite that the jury were left to adopt the rule claimed by the plaintiff, if they thought the breaking up of the plaintiff’s business was an actual injury so resulting, and to give any sum in damages which did not exceed the entire loss which the plaintiff had sustained.
Another important question made was as to the character or status of the liquors kept in the plaintiff’s store ; whether they were such that damages could be recovered for their destruction or conversion. The defendant claimed that they were kept for sale by the plaintiff contrary to law, and had accordingly no value at all in the eye of the law, and referred to the statute in support of his claim, which is in these words:— “ Nor shall any action be maintained for the recovery or possession of spirituous or intoxicating or mixed liquors, or the value thereof, except in cases where persons owning or possessing such liquor with lawful intent, may have been illegally deprived of such liquor.” The plaintiff contended that the [487] character or status of the liquors had nothing to do with the issue on trial, and that he was entitled to recover for them in damages, although he was keeping them for sale contrary to law. We think the plaintiff should not have been sustained in this claim,' and that the statute is decisive against his recovery for the liquor, though he might recover for the breaking of his close.
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Ellsworth, J.
We are fully satisfied that the defendant [485] is entitled to a new trial, for errors in the rulings and charge of the court, and we do not find it necessary therefore to consider the motion for a new trial on the ground that the verdict was against the evidence. We are inclined to the opinion that the jury erred in finding that there was a bona fide sale of the goods by Anthony to the plaintiff, and a change of possession. These points may however wear a different aspect on another trial, should one be had, and we prefer therefore to confine ourselves to the consideration of the questions of law presented by the other motion.
The first count of the declaration is trepass de bonis asportatis, upon which the plaintiff, if he recovered at all, was entitled to recover damages at least to the value of the goods and interest. The second is trespass for breaking and entering the plaintiff’s store, and carrying away the same goods. In this count the entry and the carrying away of the goods entered equally into the gravamen of the action, so that if the plaintiff had proved either, he was entitled to recover damages according to the proof. Holly v. Brown, 14 Conn., 255. Havens v. Hartford & N. Haven R. R. Co., 28 id., 69.
This distinction is perhaps of no great importance in the present case, for whether the taking of the goods be considered a part of the gravamen of the action in the second count, or only matter of aggravation, the value of the goods would be recoverable in either case; and therefore it was only important that, in assessing the damages, the jury should have been rightly instructed as to the rule which they were to follow ; which, we are constrained to think, was not done in this case.
And in the first place, since the case presented only a dispute about the title to the goods, whether they had been sold in good faith by Anthony to Oviatt or not, the jury should have been instructed that the plaintiff could recover for no, more than their true and just value. This is the well-settled rule of law, both here and in other states, and is/ well stated by Hinman, J., in White v. Webb, 15 Conn., 305. He says, “ In actions of trover and trespass for property taken and;" converted by the defendant, where there is fio malicious. [486] motive on his part, but the property is taken under a claim of right, and the real dispute is as to the title, the rule of damages is the value of the property at the time of the conversion and interest.” The same rule is laid down in the case of St. Peter’s Church v. Beach, 26 Conn., 355. See also Sedgwick on Damages, p. 539, and the cases cited in the argument, which we need not dwell upon.
We are not altogether certain what rule the judge intended to give to the jury; and this uncertainty of the charge, if there were nothing more, would dispose us to grant a new trial. The defendant had claimed the rule to be as we have stated, while the plaintiff had claimed it to be much broader, and sufficient to entitle him to recover, if at all, not merely the value of the goods and interest, but such damages as he had sustained in being broken up in business. The judge met these respective claims, not only by omitting to instruct the jury in conformity to that of the defendant, thus leaving them to infer that the defendant was wrong in his claim, but he told them that the defendant must make the plaintiff good for all the actual damage he had sustained at his hands resulting directly and naturally from the injury, which was so indefinite that the jury were left to adopt the rule claimed by the plaintiff, if they thought the breaking up of the plaintiff’s business was an actual injury so resulting, and to give any sum in damages which did not exceed the entire loss which the plaintiff had sustained.
Another important question made was as to the character or status of the liquors kept in the plaintiff’s store ; whether they were such that damages could be recovered for their destruction or conversion. The defendant claimed that they were kept for sale by the plaintiff contrary to law, and had accordingly no value at all in the eye of the law, and referred to the statute in support of his claim, which is in these words:— “ Nor shall any action be maintained for the recovery or possession of spirituous or intoxicating or mixed liquors, or the value thereof, except in cases where persons owning or possessing such liquor with lawful intent, may have been illegally deprived of such liquor.” The plaintiff contended that the [487] character or status of the liquors had nothing to do with the issue on trial, and that he was entitled to recover for them in damages, although he was keeping them for sale contrary to law. We think the plaintiff should not have been sustained in this claim,' and that the statute is decisive against his recovery for the liquor, though he might recover for the breaking of his close.
Something has been said about the unconstitutionality of this provision of the act, but the objection was not pressed with much confidence and most certainly is entitled to little weight. All property is the creature of the law, either the common or the statute law, and must, in its existence and enjoyment, be subjected to the policy and provisions of the law. Why then may not the legislature enact that deleteiious articles, such as spirituous liquors, or poisonous drugs, shall not be kept indiscriminately for sale as a beverage or as merchandise, and if they are, that they shall be considered a nuisance, not to be protected by law, but to be forfeited and destroyed ? Such legislation involves no new or dangerous principle, but one that is applied in every well-regulated community or government, and there is no sensible and upright citizen who will question this power, whatever may be his opinion as to the exercise of it in any particular instance. Why, we ask, may not the legislature promote and protect the health, prosperity and happiness of the people by enactments of beneficent prevention ? This is all that has been done or attempted in this case, and in my judgment these results would have been attained to a great extent under this statute if it had in its various provisions been faithfully administered and thoroughly enforced ; but unfortunately the appetite for liquor on the one hand, and the appetite for gain on the other, have opposed themselves too formidably to its enforcement; and so the statute has become almost a dead letter, and would become entirely so perhaps, did not some towns in the state present a praiseworthy exception to the general rule. To find fault with such a law is to complain of imprisonment or suffering for crime in any case, and of any restraints upon the passions and appetites of men found necessary for the peace and safety [488] of society. We repeat, there is no such thing as an'absolute right of property in society, or an absolute right to the enjoyment of it irrespective of the rights of others. As an illustration of such restriction we may notice that counterfeiting is a crime, and the tools used in carrying it on aré forfeited; so of gambling and the cards used in it; so of horse-racing, smuggling, dealing in lottery tickets, and fishing on forbidden days, and the like. The appliances used are all forfeited, or, if not forfeited, it is universally admitted that they might be, as the proper mode of preventing a repetition of the offences. Indeed, the power to punish by fine, penalty, imprisonment or death, is of the same preventive character, its object being to prevent crime by punishing the guilty and thereby deterring others from like acts. Now I know of but few offenses of a more aggravated character than the keeping a groggery to deal out, daily and hourly, destructive liquors, or any offense which more deserves penalties, confiscations and outlawry.
The character and constitutionality of laws of this nature have been much discussed in the courts of this country, as may be seen by reference to the cases cited on the argument of this cause; but none of the decisions support a doctrine inconsistent with that which we have stated; and some of them most directly and positively declare the • same^principle. We would refer particularly to the cases of Lord v. Chadbourn, 42 Maine, 429, and Preston v. Drew, 33 id., 558, where the statute under consideration was just like our own, and to that of Spalding v. Preston, 21 Verm., 9. The case of Brown v. Perkins, Mass. Supreme Ct., April Term, 1859, when,examined will be found to contain nothing inconsistent with this doctrine.
If this view is correct, it follows that the evidence offered by the defendant should have been received in both instances, as a complete answer to any claim for the liquors on both counts of the declaration.
Perhaps we do injustice to the judge below by assuming that he held the law to be different from what we have stated it to be, for he ruled that the jury might consider the liquors of value only for lawful purposes. This however is quito too general and indefinite, leaving the jury to say what were the [489] lawful purposes which might thus give them value. Besides, if the liquors were on sale contrary to law they had no value, and no damage could be recovered for seizing them without altogether repealing the statute itself. The idea which the judge seemed to entertain, that the liquors, while kept contrary to law, were worth something to carry out of the state, or to sell to town agents, or to present to friends, or to be drunk by the owner, and that these imparted to them a value, which it was for the jury to estimate, is one that can not be sustained. Such a value would exist in every case, and, if allowed to be considered, would most effectually repeal the provisions of the statute; for, under the latitude of such a rule, the jury might feel that they were authorized to give the full value of the liquor, deducting a reasonable charge for the freight of it to New York, where it could be sold for a market value. The idea seemed to be that the liquor, though kept for sale in New Haven contrary to law, was worth something in Connecticut. This can not be. It was worth nothing here, since it was kept contrary to our law, and for that reason was by statute put expressly out of the protection of the law. Under the circumstances there could be no “ lawful purposes ” in relation to it to give it any value. It should have been pronounced, as matter of law under the statute, entirely worthless. Being kept for this particular unlawful purpose, it could not be treated as having a value for some other purpose, and so the court should have told the jury.
We therefore advise a new trial.
In this opinion the other judges concurred.
New trial advised.