Mr. Justice McAllister
delivered the opinion of the Court:
This was trespass quare clausum fregit, by appellees against appellants. The cause of action declared on, was an ouster of plaintiffs, by defendants, from a certain shop on Madison street, Chicago, wherein plaintiffs, as partners, then were, and for some time previously had been, carrying on the business of shoemakers. The ouster was set out as occurring December 11, 1871, with a continuando to time of commencement of suit. The suit was brought January 27, 1872. The plaintiffs, on the trial, gave evidence tending to show that they held the premises under a verbal lease from Dunne, one of the defendants, and that their term extended until May 1st, 1872; also gave evidence, against the defendants’ objections, of the difference between the actual rental value of the premises, and what they were to pay as rent, down to the first day of May, 1872; also gave evidence tending to show prospective profits in their business to that time.
By the first instruction given for plaintiffs, the court directed the jury that, if they found, from the evidence, that plaintiffs had a verbal lease of the premises to the first day of May, 1872, and were wrongfully ousted therefrom by the acts of the defendants, then the latter were liable, and the damages should be: first, the difference between the rental value of the premises, as appears from the evidence, from the time they were so ousted, and the amount plaintiffs were to pay as rent until May 1st, 1872; second, any loss sustained by them in their business, shown, by the evidence, as the necessary consequence of being deprived of the premises, after the time when the jury shall believe, from the evidence, the plaintiffs were ousted.
To the giving of this instruction defendants excepted, and now assign it for error.
There is no evidence tending to show that, after the ouster was consummated, they made any lawful re-entry, or brought any action of forcible entry and detainer, to recover possession ; but, on the contrary, they brought this action to recover for the ouster, before their term expired, and, by the instruction now in question, the jury were directed, in assessing damages, to first allow plaintiffs the rental value of the premises above the rent they were paying, for the residue of the term, and then, any loss sustained in their business as a necessary consequence of the ouster, after the time it occurred. The words, any loss, would, of course, include the loss of profits which they would have realized, if they had not been ousted, by the use of the premises, in carrying on their business. The jury could not understand it otherwise, because the basis was laid for estimating prospective profits, by showing what had been the net profits of their business for the month next previous to the ouster, which included not only their own time and labor, but the use of the premises in producing them. It is obvious, that plaintiffs could not realize the advanced rental value over and above what they had to pay for rent, as an income independent of the profits derived from using the premises in conducting their business, without renting or otherwise disposing of them to another party, and common experience teaches us that they could not do that, and still retain them, to be used for carrying on their business.
There may be eases where, from the peculiar circumstances of the disseizees business, and the actual rental value of the premises, the difference between the actual rental value and what it was paying as rent, would not be full compensation for the loss in having his business broken up by the disseizin. Where such is the case, the plaintiff has been permitted to make his election, and, instead of recovering the rental value, demand compensation for the loss of profits in his business, occasioned by the ouster. The case of Chapman et al. v. Kirby, 49 Ill. 211, though an action on the case, and not trespass, was decided upon that principle; but it seems to us that to allow as a measure of damages both the advanced rental value, and prospective profits, which could be realized only by the use of the premises by the plaintiffs themselves, would be to establish mere arbitrary rules of damage, devoid of sense or justice either in their basis or application.
But, aside from improperly uniting the two grounds of damage, is the rule as to the rental value, under the circumstances of this case, a correct one? It is laid down by the instruction under consideration, without qualification, and is, in effect, that, where a tenant for years is ousted by strangers —we say strangers, because there is no allegation in the declaration about the tenancy, or one of the defendants being lessor—the disseizee, without a subsequent re-entry, may bring trespass for the disseizin, immediately after it is effected, and recover, as one species of damage, the value of the unexpired term. Suppose the term has five, ten or twenty years to run. Surely, there can be no such a rule as that; because, if there were, as applicable to terms for years, why not, upon the same principle, extend it to any greater estate? Suppose, again, that plaintiffs’ unexpired term had five years to run, and, without any re-entry, they had waited four years before bringing this suit, and then another year had elapsed before trial, the Statute of Limitations would not have been transcended; but could they recover mesne profits, or the rental value for that entire period ? If for five months, why not for five years'? The answer to these queries is to be found in the established rules of the common law.
To maintain trespass to real property, the plaintiff must have the actual possession, by himself or his servant, at the time when the injury was committed. The only exception to this rule is, where the plaintiff is owner, and the lands are unoccupied, or there is no adverse possession. 1 Chit. Pl. 177, and cases in notes; Sedg. on Dam. 134; Dean v. Comstock, 32 Ill. 173. The gist of the action is, the injury to the possession.
It follows, from the above rule, that if the trespass amount to an ouster of the plaintiff, he can recover damages only for the trespass itself, or first entry; for though every subsequent wrongful act is a continuance of the trespass, yet, to enable the plaintiff to recover damages for these acts, there must be a re-entry. 1 Chit. PI. 177; Sedgwick on Dam. 135; Addison on Torts, 304. “A disseizee may have trespass against the disseizor, for the disseizin itself, because he was then in possession; but not for an injury after the disseizin, until he hath gained possession by re-entry, and then he may support this action for an intermediate damage.” Taylor on Landlord and T. sec. 783. See, also, Blac. Com., book 3, p. 210.
In Monchton v. Pashley, 2 Ld. Raym. 974, s. c. 2 Salk. 638, Lord Holt said: “As to the case of an entry with ouster, it may be set forth specially in the"count or not, with a continuando or diversis diebus et mcibus, between such a day and such a day; but then you must prove that the plaintiff reentered before the action brought, or else you can not assign the mesne trespass; for, by the ouster, the defendant has got the plaintiff’s possession, and he can not be a trespasser to the plaintiff; but when the plaintiff re-enters, the possession is in him ab initio, and he shall have the mesne profits.”
In Case v. Shepherd, 2 Johns.
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Mr. Justice McAllister
delivered the opinion of the Court:
This was trespass quare clausum fregit, by appellees against appellants. The cause of action declared on, was an ouster of plaintiffs, by defendants, from a certain shop on Madison street, Chicago, wherein plaintiffs, as partners, then were, and for some time previously had been, carrying on the business of shoemakers. The ouster was set out as occurring December 11, 1871, with a continuando to time of commencement of suit. The suit was brought January 27, 1872. The plaintiffs, on the trial, gave evidence tending to show that they held the premises under a verbal lease from Dunne, one of the defendants, and that their term extended until May 1st, 1872; also gave evidence, against the defendants’ objections, of the difference between the actual rental value of the premises, and what they were to pay as rent, down to the first day of May, 1872; also gave evidence tending to show prospective profits in their business to that time.
By the first instruction given for plaintiffs, the court directed the jury that, if they found, from the evidence, that plaintiffs had a verbal lease of the premises to the first day of May, 1872, and were wrongfully ousted therefrom by the acts of the defendants, then the latter were liable, and the damages should be: first, the difference between the rental value of the premises, as appears from the evidence, from the time they were so ousted, and the amount plaintiffs were to pay as rent until May 1st, 1872; second, any loss sustained by them in their business, shown, by the evidence, as the necessary consequence of being deprived of the premises, after the time when the jury shall believe, from the evidence, the plaintiffs were ousted.
To the giving of this instruction defendants excepted, and now assign it for error.
There is no evidence tending to show that, after the ouster was consummated, they made any lawful re-entry, or brought any action of forcible entry and detainer, to recover possession ; but, on the contrary, they brought this action to recover for the ouster, before their term expired, and, by the instruction now in question, the jury were directed, in assessing damages, to first allow plaintiffs the rental value of the premises above the rent they were paying, for the residue of the term, and then, any loss sustained in their business as a necessary consequence of the ouster, after the time it occurred. The words, any loss, would, of course, include the loss of profits which they would have realized, if they had not been ousted, by the use of the premises, in carrying on their business. The jury could not understand it otherwise, because the basis was laid for estimating prospective profits, by showing what had been the net profits of their business for the month next previous to the ouster, which included not only their own time and labor, but the use of the premises in producing them. It is obvious, that plaintiffs could not realize the advanced rental value over and above what they had to pay for rent, as an income independent of the profits derived from using the premises in conducting their business, without renting or otherwise disposing of them to another party, and common experience teaches us that they could not do that, and still retain them, to be used for carrying on their business.
There may be eases where, from the peculiar circumstances of the disseizees business, and the actual rental value of the premises, the difference between the actual rental value and what it was paying as rent, would not be full compensation for the loss in having his business broken up by the disseizin. Where such is the case, the plaintiff has been permitted to make his election, and, instead of recovering the rental value, demand compensation for the loss of profits in his business, occasioned by the ouster. The case of Chapman et al. v. Kirby, 49 Ill. 211, though an action on the case, and not trespass, was decided upon that principle; but it seems to us that to allow as a measure of damages both the advanced rental value, and prospective profits, which could be realized only by the use of the premises by the plaintiffs themselves, would be to establish mere arbitrary rules of damage, devoid of sense or justice either in their basis or application.
But, aside from improperly uniting the two grounds of damage, is the rule as to the rental value, under the circumstances of this case, a correct one? It is laid down by the instruction under consideration, without qualification, and is, in effect, that, where a tenant for years is ousted by strangers —we say strangers, because there is no allegation in the declaration about the tenancy, or one of the defendants being lessor—the disseizee, without a subsequent re-entry, may bring trespass for the disseizin, immediately after it is effected, and recover, as one species of damage, the value of the unexpired term. Suppose the term has five, ten or twenty years to run. Surely, there can be no such a rule as that; because, if there were, as applicable to terms for years, why not, upon the same principle, extend it to any greater estate? Suppose, again, that plaintiffs’ unexpired term had five years to run, and, without any re-entry, they had waited four years before bringing this suit, and then another year had elapsed before trial, the Statute of Limitations would not have been transcended; but could they recover mesne profits, or the rental value for that entire period ? If for five months, why not for five years'? The answer to these queries is to be found in the established rules of the common law.
To maintain trespass to real property, the plaintiff must have the actual possession, by himself or his servant, at the time when the injury was committed. The only exception to this rule is, where the plaintiff is owner, and the lands are unoccupied, or there is no adverse possession. 1 Chit. Pl. 177, and cases in notes; Sedg. on Dam. 134; Dean v. Comstock, 32 Ill. 173. The gist of the action is, the injury to the possession.
It follows, from the above rule, that if the trespass amount to an ouster of the plaintiff, he can recover damages only for the trespass itself, or first entry; for though every subsequent wrongful act is a continuance of the trespass, yet, to enable the plaintiff to recover damages for these acts, there must be a re-entry. 1 Chit. PI. 177; Sedgwick on Dam. 135; Addison on Torts, 304. “A disseizee may have trespass against the disseizor, for the disseizin itself, because he was then in possession; but not for an injury after the disseizin, until he hath gained possession by re-entry, and then he may support this action for an intermediate damage.” Taylor on Landlord and T. sec. 783. See, also, Blac. Com., book 3, p. 210.
In Monchton v. Pashley, 2 Ld. Raym. 974, s. c. 2 Salk. 638, Lord Holt said: “As to the case of an entry with ouster, it may be set forth specially in the"count or not, with a continuando or diversis diebus et mcibus, between such a day and such a day; but then you must prove that the plaintiff reentered before the action brought, or else you can not assign the mesne trespass; for, by the ouster, the defendant has got the plaintiff’s possession, and he can not be a trespasser to the plaintiff; but when the plaintiff re-enters, the possession is in him ab initio, and he shall have the mesne profits.”
In Case v. Shepherd, 2 Johns. Cases, 27, the court say: “ The only question, therefore, is, as to the extent of the damages to be recovered, or whether the defendant is to be made responsible for the consequential damages of the ouster. In this case, the trespass is laid with a continuando; but the distinction as to the amount of damages to be recovered in this case is this: After an ouster, you can only recover for the simple trespass, or the first entry; for though, when there is an ouster, every subsequent act is a continuance of the trespass, yet, in order to entitle the plaintiff to recover damages for the subsequent acts, there must be a re-entry; but, after a re-entry, he may lay his action with a continuando, and recover mesne profits, as well as damage for the ouster. 1 Ld. Raym. 692; 6 Salk. 639; 2 Ld. Raym. 974; 1 Leon. 302, 319; 13 Coke, 600; Menvil’s Case, 3 Blac. Com. 210; Co. Litt. 257. The present suit was commenced before any reentry by the plaintiff. He is, therefore, entitled to recover damages for the first entry only, or single trespass, and not for the- crops.” See, also, Holmes v. Seely, 19 Wend. 507; Rowland v. Rowland, 8 (Ham.) Ohio R.; Shields v. Henderson, 1 Lit. (Ky.) R. 239.
In Allen v. Thayer, 17 Mass. R. 300, the court say: “ How, a disseizee can not maintain trespass for the wrong done after the disseizin, and before a re-entry; for the freehold is in the disseizor all the time after the disseizin, excepting in cases where the estate of the disseizee shall have determined so that he could not re-enter; as, where he was tenant for years, and his term expired, or ivas tenant per auter vie, and the cestui qui vie died.”
In the case at bar, the plaintiffs’ term had not expired, and did not expire until several months after this suit was brought. There was ample time for them to have brought an action of forcible entry and detainer, and thus have regained possession. That done, the law, by a kind of jus postliminii, or right of reprisal, would regard the possession as having been all along in them (3 Blac. Com. 210) ; and then, after the expiration of their term, bringing this suit, they would be entitled to recover, as mesne profits, the value of their lease or term ; for, as a general rule, the annual value of land is the measure of mesne profits. Adams on Ejec. 391; Sedg. on Dam. 124. The theory on which such recovery could be had would be, that the trespass was continued to the end of the term.
The plaintiffs not having re-entered, and their lease not expiring until many months after the ouster, they were not, upon the principle of the authorities cited, entitled to recover mesne profits from the ouster to the end of their term, but must be confined to the ouster itself, or the single trespass. They, of course, are entitled to recover for all the necessary and natural consequences of that act, in view of all the circumstances belonging to it, including such loss as they sustained by breaking up their business, if it was thereby broken up, and if circumstances of aggravation are shown, which render it impossible to apply any fixed rule of law, the jury have the power to give exemplary damages, to be graduated Avith reference to the motives which actuated the defendants, and the manner in which the act complained of was committed. Sherman v. Dutch, 16 Ill. 283.
The point is strenuously urged that there was no evidence upon which the jury would be justified in holding Buck liable for the trespass. We are of opinion that, considering his position, the motÍA7e he had, the facts and circumstances in evidence, there Avas sufficient to go to the jury upon the question of his participation. The plaintiffs gaAre evidence tending to show that the ouster was effected by others, and that Smith, the purchaser, took or came in under the disseizors. If he did not participate, or aid, or abet in, the disseizin itself, but in fact came in under the disseizor, he would not be liable in this action; for trespass does not lie against a person coming in under the disseizor. Siford’s Case, 11 Co. R. 46.
If, however, he came in under disseizors, still, if he participated in the original act of disseizin, he would be liable, and if McCarthy participated, or aided and abetted, and in so doing he was acting under the command or direction of Smith, the latter would be liable. But if McCarthy was employed by Smith for another purpose, and of his own mere motion participated in the disseizin of plaintiffs, then such interference would not make Smith liable.
On the question of punitive damages, the plaintiffs gave evidence tending to show that defendant Buck was worth half a million of dollars, and that Dunne was worth from ten to fifteen thousand dollars; and in their third instruction the court instructed the jury that, “in arriving at, and determining the amount of such punitive or exemplary damages, the jury may take into consideration the pecuniary ability of each of such individual defendants so guilty of said trespasses, if the jury find, from the evidence, any trespass was committed, to pay such punitive or exemplary damages.”
When, in trespass against several defendants, they plead not guilty, or several pleas, and the jury find for the plaintiff against all the defendants, they can not assess several damages; there can be but one assessment, and that must be against all the defendants. Haydon’s Case, 11 Coke R. 8; Yeazel v. Alexander, 58 Ill. 254; Sedgwick on Damages, 584.
It is well understood that in actions of tort, where the element of punishment is introduced into the damages, the only reason ever assigned for permitting inquiry into the condition and pecuniary circumstances of the defendant is, that what would be a severe punishment for a poor man, by way of fine or exemplary damages, might not be felt by one that was rich. Upon this principle, alone, has evidence of, and inquiry into the pecuniary circumstances of the defendant been held competent and proper.
How, here are three defendants, sued jointly in trespass. If found guilty, the same amount of damages must be assessed against all. One defendant is worth half a million of dollars, another ten or fifteen thousand dollars. The court directs the jury that they may take into consideration the pecuniary ability of each individual defendant to pay punitive or exemplary damages, in determining the amount of such damages. This is subversive of the very reason upon which the inquiry into the pecuniary circumstances of the defendant can alone be justified. It subjects the defendant worth ten thousand dollars, and it would be the same in principle if he was worth not a dollar, to a measure of pun-, ishment which would be felt by one worth half a million, and the verdict of $8000, returned by the jury, shows that they administered the punishment so as to be felt by the wealthiest of the three defendants. In Railroad Company v. Smith, 57 Ill. 517, an instruction, the same in effect as that under consideration, was held erroneous.
The true rule is stated by Greenleaf: “The jury are to inquire, not what the defendant can pay, but what the plaintiff ought to receive. But so far as the defendant’s rank and influence in society, and, therefore, the extent of the injury, are increased by his wealth, evidence of that fact is pertinent to the issue.” 2 Greenleaf Ev. sec. 269.
The instruction in question made the ability to pay, the criterion. In Holmes v. Holmes, 64 Ill. 294, such an instruction was held erroneous.
The judgment of the court below will be reversed and the cause remanded.
Judgment reversed.