Page:North Dakota Reports (vol. 48).pdf/151

 the degree of participation of each of the defendants and the degree of culpability of his conduct. Where the verdict is in a lump sum, against all defendants, it is fair to assume that the jury has measured the damages with the view of appropriate punishment for all whom they deemed responsible for the wrongs committed. If, under the evidence, one be not responsible, clearly the verdict is tainted. Landseidel v. Culeman, 181 N. W. 593. We cannot now determine what evidence may be introduced upon another trial to connect Harper with the alleged wrongful conduct of Underwood and Moran, so on account of the insufficiency of the evidence to connect him. with the tort the judgment must be reversed as to both appellants and a new trial awarded.

Error is also assigned upon the exclusion of evidence offered on behalf of the defendants to establish that Harper was the owner of the tent and that it was believed that he was such owner. The evidence was apparently excluded on the ground that the ownership of the tent did not justify the acts of the defendants in arresting the plaintiff. This is, of course, true; but nevertheless we think the ownership of the tent may well be considered by the jury in this case in measuring the degree of culpability attaching to the acts of the defendants. Acts done in pursuance oi an attempt by one to obtain possession of property for the lawful owner having the right of possession, even though the acts in themselves are unlawful, are not to be considered as on a par with the same acts done wantonly and with no pretense of pursuing a legal object. It may be observed, too, that the plaintiff is not entirely without fault in not allowing the owner of the tent to remove it. On the facts appearing in this record, we are of the opinion that it would have been proper for the court to have instructed the jury that the tent was the property of Harper; that the defendants were none the less not justified in their acts, but that they should consider the fact of ownership in relation to the other circumstances in determining the degree of culpability and fixing the punitory damages.

It follows from what has been said that the order appealed from must be reversed, and a new trial granted; costs to abide the event. It is so ordered.

and, JJ., concur.

, C. J. (concurring specially). On a pleasant summer day