¶1The charge of the court in this case, with regard to the rule of damages to be applied by the jury, is, we think, contrary to the whole current of authority on the subject, not only in this state, but elsewhere. Oviatt v. Pond, 29 Conn., 479; Plumb v. Ives, 39 Conn., 120.
¶2The title to the property was in dispute. The judgment creditor claimed that the property belonged to his debtor, who is the nominal plaintiff in this suit, and consequently that it could be taken on the execution to pay his claim; while the wife of the debtor claimed that the property belonged to her. In this state of things the defendant was sent with the execution to levy on the property as the property of the husband; and the court gave the jury to understand that if the defendant took the property out of the possession of the wife without investigating her title to it, and refused to make the investigation after being informed that it belonged to her, his conduct was grossly negligent or wantonly malicious; and they might assess such sum in damages as they deemed reasonable, not exceeding the amount .stated in the declaration.
¶3Whether malice exists in a case or not, is always a question of fact for the jury to determine; and the conduct of the defendant in this case could, at the most, only be evidence tending to show malice in the transaction. The court, however, treated the subject as a matter of law, and deemed sucli conduct sufficient to show a degree of malice that would warrant the jury in assessing as damages the whole sum demanded in the declaration.
¶4We think a new trial ought to be granted, and so advise.
¶5.In this opinion the other judges concurred; except Phelps, J., who did not sit.