Shultz v. Frank

1 Wis. 352 | Wis. | 1853

By the Court,

Smith, J.

The declaration in this case is informally and inartificially drawn. It is just such a declaration of the cause of action, as might he supposed, drawn hy one ignorant of the forms of law, before a tribunal, of which technical precision is not required, hut to which the substantial equity of the law makes its most frequent appeals. To relieve Justices of the Peace from the embarrassments which frequently arise, to perplex even higher tribunals, out of the logical distinction between actions of trespass on the case, and actions of trespass, the 43d section of chap. 88 of the Revised Statutes was doubtless enacted. This section provides, that, “ when by the wrongful act of any person, an injury is produced, either to the person, property, or rights of another, or to his servant, child or wife, an action of trespass on the case may be brought to recover damages for such injury, whether it was wilful, or accompanied by force or not, and whether such injury was a direct and immediate consequence from such wrongful act, or consequential and indirect.”

The design of this section was, to abolish, in regard to actions brought before justices of the peace, all distinction between trespass and trespass on the case. By adopting the one, therefore, instead of the other, no implication can arise against the plaintiff. By bringing case, he cannot be considei’ed as waiving the taking, or the force. We cannot, therefore, admit the position assumed by the plaintiffs in error, that the defendant in error has admitted in his declaration and proof, that the plaintiffs in error had a right to remove the broom-corn. Neither do the cases cited, in our opinion, sustain that position.' The same latitude of proof was extended to the plaintiff below in the action of case, that would have been in the action of trespass.

The proof before the justice, shows, that the plaintiffs in error seized a quantity of broom-corn, belonging to, and in possession of the defendant in error, and removed the same from his barn, in the town of Concord, to the barn of Adams, in the town of Ixo-nia. It appears by the testimony of Ramsay, that the corn was in good condition in Frank’s barn. That when the bundles, in the moving, became untied, the plaintiffs in error and his assistants did not tie them again. That “the hens would knock the corn down, and the colt would run on it.” It also appears from the testimony, that the corn was taken from the possession of the defendant in error and removed to the barn of Adams, where it remained some four weeks. It is equally clear that it was injured in the moving. The plaintiffs in error do not show the slightest right or authority to interfere with the corn, or with the possession of the defendant in error. The injury done appears to have been wilfully done, as no justification for meddling with the corn is alleged or proved. The first count in the declaration is sustained by the proof, to wit: in damaging, injuring and destroying the same, by tearing the same to pieces with pitchforks, trampling upon the same, &c. To this injury, as proved, there is no justification alleged by the plead ings. No right is shown in any manner to interfere with the corn, and in this respect, no conflicting proof whatever appears.

It is true, Streeter, one of the plaintiffs in error, told Adams that he had an execution against Frank. Yet he neither pleads it nor proves it. He may or may not have had it. He may have told Frank that he had one, and that may be the reason why Frank did not resist him in taking the corn. It is asking too much of this court to presume that he had an execution, or any lawful authority for removing the corn of the defendant in error, when he neither alleges it in his pleadings, nor attempts to exhibit it in proof.

The judgment of the County Court must therefore be affirmed, with costs.