White Water Valley Canal Co. v. Boden

8 Blackf. 130 | Ind. | 1846

Perkins, J.

’This was an action of debt commenced before a justice of the peace upon a by-law of the White Water Valley Canal Company to recover the penalty of its infraction. Judgment before the justice for the defendant. An appeal was taken to the Circuit Court where an amended declaration was filed, to which there was a demurrer; demurrer sustained, and final judgment rendered for the defendant.

The declaration before the justice, which contained but one count, set out neither the charter, nor by-law alleged to have been broken, of the corporation, and claimed but twenty dollars damages. It made a reference to the by-law as contained in a printed copy (filed with the declaration) of all the by-laws of the company. The amendment in the Circuit Court consisted of five additional counts, four of which severally claimed twenty dollars damages, and neither of which set out the charter of the company, nor the by-law on which the count was founded other than by reference to the printed copy filed, as above stated. The aggregate of the damages, claimed by the declaration - as amended, was one hundred dollars.

G. Holland, for the appellants. J. Hyman and J. B. Sleith, for the appellee.

The questions raised by the counsel are: 1. Whether the declaration should not have set out the canal company’s charter? 2. Whether it sufficiently sets out the by-law or bylaws on which the action is founded? 3. Whether the case was within the jurisdiction of the Court?

If the charter of this company is a public act, it was clearly unnecessary to set it out in the declaration. We think it is so. The object of the company is the completion of the White Water Canal, one of the works embraced in the general internal improvement act of 1836. The state still possesses an interest in the work which it is the duty of this company to protect; the charter refers to, and confers upon the corporation the benefit of, provisions contained in certain of the general laws of the state, which must be examined in giving it a construction and determining the extent of the privileges bestowed by it; and the work itself is one of public concern. West v. Blake, 4 Blackf. 234.

Upon the second question, we are of opinion that the filing of a copy of the by-law, as was done in this case, with the declaration in which a reference to it was made, was a sufficient setting out of the same to constitute a good declaration, in that particular, in an action commenced before a justice of the peace.

Upon the question of jurisdiction, we think the case of Forslut v. Watkins, 4 Blackf. 520, settles the point against it. The form of action in the present case is debt, but'the cause of action set forth in the declaration is a tort; and we are able to discover no substantial difference between the statute of 1843 (R. S. 862), under which this case arose, and that of 1831 under which the decision in Forsha v. Watkins was made.

Per Curiam.

The judgment is affirmed with costs.