Page images

Searles agt. Cronk.

have his action; for it is a personal injury.” In Mellor agt. Spateman, (1 Saund., 346 a.) it is said by Sergeant WILLIAMS: “Whenever any act injures another's right and would be evidence in future in favor of the wrong doer, an action may be maintained for an invasion of the right without proof of any specific injury.” In Sedgwick on Damages (3 Ed., 44, 45,) it is said, in regard to the right invaded, that a verdict and judgment for the smallest amount is as effectual as any sum, however large, for it establishes the fact of the plaintiff's title ; and that in the common case of trespass to lauds, the main object being, usually, to determine the right, this principle becomes very important. In Chapman agt. Maine Manuf. Co., (13 Conn., 269,) it is said: “Generally when one encroaches on the inheritance of another the law gives a right of action and even if no actual damages are found, the action will be sustained and nominal damages given." Indeed, had I a discretion in the matter, I should deem its application to the case unauthorized by the law or the facts of it. It is the theory of the law, and should be the practice of the courts, to furnish a remedy and afford relief for every wrong or injury, and it wonld be a disgrace to the one and a reproach to the other to deny the former or withhold the latter. Ubi jus, ibi remedium, (Broom's Maxims, 91). In Ashby agt. White, (2 L. Raym., 955,) before cited, Lord Chief Justice Holt observes: If a man has a right he must have a means to vindicate and maintain it, and a remedy if he is injured in the exercise and enjoyment of it; and indeed it is a vain thing to imagine a right without a remedy, for want of right and want of remedy are reciprocal. Indeed, so valuable has the maxim been considered th at it gave occasion for the first invention of the form of remedy called an action on the case. The application of a different principle to the case would be not only an abuse of judical discretion but a mistake of legal presumption. The 1 egal presumption is, as we have seen, that he who has suffered an injury, has sustained a loss and is consequently enti tled

Searles agt. Cronk.

to recover on proof of the commission of the injury without proving the amount of the damages resulting from it, whether they be nominal, probable or possible, merely actual damages not being necessary to sustain an action. An invasion of a right being shown, the law holds injury to be the probable result and gives judgment against the wrong doer, against whom it presumes everything and not against the well doer, who is as much entitled to nominal as to actual damages. Omnia praesumuntar contra spoliatorem. It is equally so whether the absence of proof on the subject. arises from design or inadvertance on the part of the plaintiff. In Dixon agt. Clow, (24 Wend., 188,) before cited, which was an action of trespass for an entry by the defendant of the plaintiff's premises, and pulling down his fence, originating in a justice's court and removed into the common pleas, by plea of title interposed by the defendant and on the trial of which the latter court, the plaintiff's counsel declined to prove or give evidence of the amount of his damages and in which the jury, as in this case, found a verdict for the defendant, upon which a judgment was entered in the common pleas, against the plaintiff on which the latter brought a writ of error to the supreme court, which held that if he succeeded, as he did, in showing an unlawful entry upon his land or throwing down of his fences or exposure of his fields, he was entitled to a verdict for nominal damages at least, and that it was not necessary for him to prove a sum oi that any particular amount of damages had been sustained ; that the action was brought for the purpose of trying the extent of the defendant's right, and that every unauthorized entry upon lands of another is a trespass and whether the owner suffered much or little, he was entitled to a verdict for some damages.

In the present instance, the entry was unauthorized by the plaintiff, and was unjustified by the defendant, who neither pleaded nor proved anything exculpatory of it. In the Tonawanda R. R. Co., agt. Munger, (5 Denio, 255); it is

Searles agt. Cronk.

said, that every unwarrantable entry by a person or his cattle on the land of another is a trespass, whether the land be fenced or not, and though the cattle entered from the highway and the land was unenclosed, and the owner exercised care to keep them in his own enclosure. In Blake agt. Jerome, (14 J. R., 406,) it was held that a person going or sending on the land of another, and taking away his own property, in that case a mare and colt, was a trespasser. In Hermance agt. Vernoy; J. R., 5, it is, also, held, that A.'s cattle is on B.'s land, confers no licence upon A. to enter and take it away, and that an entry by A. for that purpose, without the permission of B., is a trespass.

The hurt and trampling of the crops and fences as well as the loss of time and trouble of the plaintiff and his wife and son, occasioned, as they were, by the tortious act of the defendant and his cow, entitled the plaintiff to actual and perhaps, exemplary damages in this case. In Allaire agt. Whitney, (1 Hill, R., 487,) it is said by Justice Cowen, after referring to the admission of POWELL J., in Ashby agt. White, before cited, it would not be difficult in all such cases to show the degree of actual damages; that the time of the injured party had been consumed in doing a vain thing or one comparatively vain, and time was money. In Miller agt. Garling, (12 How. R., 203,) which was an action for the recovery of a heifer secretly taken from the plaintiff's possession, it was held he was entitled to recover damages for time spent and expenses incurred by him in searching for her, after she was taken by the defendant. In Ward agt. Vanderbilt, (1 Keyes, R., 70;) in the court of appeals, it is held that where on evidence submitted, a jury is satisfied that certain damages accrued to the plaintiff as sickness and loss of time, occasioned by the defendant as a common carrier of passengers, it may award such damages to the plaintiff, although, he has offered no evidence to prove that point; and that the fact that there was no evidence of the value of the plaintiff's time, did not pre

Searles agt. Cronk.

clude it from giving him such compensation therefor, as it deemed reasonable; and if the loss of time was occasioned by the default of the defendant, the plaintiff was certainly entitled to compensation for it.

The result of my investigation of the subject is, that the jury acted under a misapprehension of both the law and the facts in rendering the verdict they did in this case, and that the judgment entered upon it by the justice must be reversed. In Brown agt. Penfield, (24 How., 64,) it is held that where a referee decides against the weight of evidence and errs in the application of the rules of law, it is error of fact and of law, and that a wrong result upon undisputed evidence is an error of law, and the judgment on the report should be reversed. In Rathbone agt. Stanton, (6 Barb., 141,) it was held that when upon any one question which is decisive against either party, there is evidence on one side, and none on the other, and the verdict has been given for the party who has given no evidence upon the point in question, the verdict will be set aside; and that if the county court does not reverse the judgment founded on such a verdict, it is the duty of the supreme court to correct the error by doing so itself.

A contrary disposition of the case would not only deprive the plaintiff of all remedy against the defendant for the damages and costs in and about the suit in the justices court, but would inflict on him the costs and

expenses of and

upon the appeal in this court, which might be justly considered an arbitrary exercise of judicial discretion.

Perhaps greater attention has been bestowed upon this case than its importance might seem to demand, yet not more than its investigation would appear to require, considering that no objection was made and no question was raised upon the trial by or on behalf of the defendant, either as to the sufficiency of the evidence or the amount of the damages which the plaintiff was entitled to recover therein.

Judgment reversed with costs.

Childs agt. Smith.


SAMUEL R. CHILDS, respondent, agt. EzIKIEL L. SMITH,


The organization of a manufacturing company, under the general law of the state, is

not effected until the filing of the certificate in the county clerk's office, and a dupli

cate thereof with the secretary of state, as required by the act. When a statute wbich grants a power or authority, expressly fixes limits, or declares

the time when such authority shall be exercised, or begin, all other time is

excluded. Consequently where an agreement is made that one person shall pay to another a

certain sum of money on the organization of a certain manufacturing company, and all the formalities of an organization, with proper certificates made and signed by the corporators, are completed, except the filing of the certificate and duplicate as required by the general act, an action brought to recover such sum of money is premature.

Fourth District, Caldwell, General Term, July, 1869.
Before ROSEKRANS, POTTER and Bockes, Justices.

APPEAL from a judgment entered upon the report of a referee. The action was to recover $3,000, part of the consideration of a farm conveyed to the defendant in the town of Stratoga Springs. The defendant set up in his defense, among other things, that the farm in question was conveyed upon certain conditions to be paid for, in the manner according to the agreement set up in the said answer, and not otherwise; and that the conditions upon which the payment was to be made have never been performed, and also, that the sum mentioned to be paid was conditional, depending upon an agreement on the part of the plaintiff, which has never been performed.

The action was referred to a sole referee, who reported in favor of the plaintiff

, and directed judgment for $2253.91, with costs. From this judgment, the defendant appeals.

« PreviousContinue »