The case states that his Honor told the j nry, that if the plaintiff was entitled to recover they would assess his damages at the value of the cotton at seventeen cents per ' pound. This, we think, is a mistake of the clerk, as both parties had agreed that the cotton was worth fourteen cents per pound, and upon making a calculation it will be seen that the jury allowed only fourteen cents per pound, the price agreed upon by the parties.
It is not doubted that it would have been error if the Judge had so instructed the jury and they had so found.
His Honor also gave the following instructions to the jury : “ That if they found that the rent was not Satisfied and the defendant was entitled to the possession, he could not retake possession of the cotton, because a recapture was calculated to lead to a breach of the peace. That the only legal remedy, in such a case, for the defendant was prescribed in the 13 sec. 156' chap., aot3 1868 — ’69, and that he should have brought claim and delivery, and was confined to that remedy.”
In these instructions we think his Honor erred in two particulars. We understand his Honor as instructing the jury that if the owner of property takes it out of the possession of another under circumstances calculated to produce a breach of the peace, he may be sued for such taking by the possessor, and the value of the property recovered.
This Court had supposed that it was familiar learning that the owner of property thus taken could not be sued for the *337property ; and that if the owner of real estate had taken possession under circuinstrnees calculated to produce a breach oí the peace, and even if he committed a breach of the peace by ousting the possessor, still, he could not sustain a suit for the land against the real owner, who had thus violently deprived him of the possession, and that a plea of liberum tenementum9 if established, would bar the plaintiffs recovery.
We think his Houor was also in error in instructing the jury that the defendant’s only remedy was claim and delivery, as provided in the acts of 1868-69, mentioned by his Honor. We hold, that if the defendant was the owner of the cotton, as alleged in his answer, that was a full defence to this action, if established to the satisfaction of the jury, and that his Honor should have so instructed the j ury.
We also hold, that the plaintiff might have sustained a civil' action for the cotton in the nature of an action of trover, and that he would not be restricted to the action of claim and delivery.
For the above errors there must bo a venire de novo.
This will be certified.
Pur Curiam. Venire de novó.