Opinion
November 1814.
The party who has been damaged by the trespass of animals on his cleared and cultivated ground, properly fenced, and who has had the damages ascertained under 1807, 8 (Code, 1682-1686), may sue for and recover those damages, and no more, before any tribunal having jurisdiction of the amount, viewing it in the light of a demand growing quasi ex contractu; and, upon the trial, the certificate is primâ facie evidence against the defendant that the fence was lawful, and the damages sustained; but not of the fact that the trespass was committed by defendant's stock.
This suit was commenced before a justice who gave judgment for plaintiff. Defendant appealed to the County Court, who quashed the warrant on the ground that the justice had no cognizance of the cause. From this decision, an appeal was taken to the Circuit Court, where the judgment of the County-Court was affirmed, from which, this appeal was taken. And now the record shows this case: that Shaver complained to a justice that Catrin's horses had destroyed his grain within his enclosure, upon which the justice ordered two freeholders to be summoned, who, with himself, viewed the fence, determined that it was lawful, and that the damage sustained was worth. $15, to which effect they gave a certificate; that Catrin having failed to pay those damages, Shaver commenced this suit before a single justice.
Here the only question is, whether the Circuit Court erred in quashing these proceedings.
These proceedings took place under the provisions of the Act of 1807, c. 8. On the part of the plaintiff, it is said that statute was well pursued, and therefore the judgment is erroneous.
On behalf of the defendant, it has been argued that the Act of 1807 does not in terms give jurisdiction to a single justice in any case arising under it, and that therefore the Circuit Court did not err. But, if jurisdiction had been given in express terms, the statute was not pursued, and therefore the proceedings ought to have been quashed.
Upon recurring to this statute, it will be found that the first section describes what shall be a lawful fence; it must be at least five feet high, and as much of it as three feet from the surface of the ground be so close as to exclude hogs, c. The second section enacts in substance, that, upon complaint being made to a justice by any person that the stock of any other person has trespassed upon the land which he has enclosed and cultivated, the justice shall cause to be summoned two disinterested freeholders, who, with the justice, shall go to the premises and ascertain, whether the fence is according to law, and what is the amount of the damages done, and give a certificate under their hands and seals that the fence is sufficient (if they should so find), and also the amount of damages sustained, that the owner of the stock which committed the trespass shall make full compensation, which may be recovered before any tribunal having jurisdiction thereof, c. First it is said, that the justice has not jurisdiction in this case, because it was founded on a trespass. Upon looking into the different acts of Assembly which define the jurisdiction of justices of the peace, it is found that in every case the jurisdiction is conferred is in cases of contract only. There is no act which, in conferring general jurisdiction, uses such language as will include cases arising upon torts or trespasses; and that, therefore, the justice was not a tribunal which the legislature intended should take cognizance of the matter.
We are of opinion, that, in every case where the injured party has gone through the ceremony prescribed in this act, and obtained a certificate ascertaining the sufficiency of his fence and the amount to which he is entitled he shall never receive more than the amount ascertained, and if that amount be a sum within the cognizance of a single justice, he may sue for and recover it before one, viewing it in the light of a demand growing quasi ex contractu; and that, upon the trial, the certificate is primâ facie but not conclusive evidence against the defendant, that the plaintiff's fence was lawful, and that the damage sustained was worth the sum certified; but the fact that the trespass was committed by the defendant's stock must be established by testimony independent of the certificate, as it was not intended the certificate should say any thing upon that point. If the amount certified is greater than that of which a justice has jurisdiction, it must be sued for in court, and, upon trial, the same description of testimony can be used. The main intention of the legislature was to check strife and contention in different neighborhoods, and provide a mode by pursuing which trifling trespasses could be speedily, and without much expense to the parties, compensated. A different construction would defeat the obvious intention of the legislature. But it has been said that the statute has not been pursued, because it does not appear the valuers were freeholders. On inspecting the record, it seems the justice not only directed those summoned to be freeholders, but himself put down their names; the inference is irresistible that they were freeholders.
Again, it is said the certificate does not show how the grain was destroyed, or by whose cattle. It seems to us that, when it is considered that this certificate is upon the warrant, which states the destruction by cattle, and the certificate states the destruction without saying by what means, we must conclude they intended by the means specified in the warrant and no other, or they would have said so; and as before stated, the certificate need not show to whom the cattle belonged. Indeed, the legislature neither intended nor expected a certificate upon that point, because, as the owner of the field would generally turn out the cattle before he applied to the justice, neither the justice nor freeholders could see the cattle, and by their own view ascertain to whom they belonged when they would arrive; but they could view the fence, and see the damage done, and therefore on these points only are they to certify.
Lastly, it has been insisted that the cause was tried before the same justice who viewed the premises, which was wrong.
We do not know how this fact is; the name is the same, which makes it probable it was the same person. But this objection is removed by showing that another justice actually sat with him, and gave the judgment, and we do not give any opinion whether the same justice who viewed the premises might, or might not, legally try the cause. It seems to us that the Circuit Court erred in quashing these proceedings; that the judgment must be reversed, and the cause be remanded for a trial to the Circuit Court.