Hogwood v. Edwards.

between the lands of the plaintiff and those of Mrs. Rebecca Patterson, and that, with the consent of the latter, he had placed in it an obstruction, (viz: a log thrown across, and rails with one end resting upon the bottom of the ditch and the other against the log,) in order to prevent sand from being carried down and choking a ditch of his own which ran into the boundary ditch; that the defendant, who owned land upon both sides of the ditch above the obstruction, by the permission of Mrs. Patterson, removed so many of the rails as were upon her half of the ditch, whereupon the sand passed down and filled the plaintiff's ditch, and caused his land to overflow.

The court instructed the jury that if the defendants removed the obstruction without the consent of the plaintiff, and against his wishes, the latter would be entitled to recover actual damages sustained therefrom, and if there were no actual damages, he would be entitled to nominal damages.

Verdict for six pence; rule for new trial; rule discharged; judgment and appeal by the defendants.

Davis, for the appellants.

No counsel, contra.

BATTLE, J. We are unable to perceive any ground upon which the action of trespass vi et armis can be sustained upon the facts of the case. The defendants did not go upon. the land of the plaintiff, nor, in any way, wilfully send down' water and sand upon it. It is therefore unlike the case of Kelly v. Lett, 13 Ire., 50, where the defendant, who owned a mill on the same stream and above one belonging to the plaintiff, wilfully, and with intent to injure the plaintiff, frequently shut down his gates, so as to accumulate a large head of water, and then raised them, whereby an immense volume of water ran with great force against the plaintiff's

Hogwood v. Edwards.

dam, and washed it away. In that case, it was properly held that an action of trespass vi et armis was the proper remedy; but in the present case, the facts are that the defendants neither acted wilfully, nor with intent to injure the plaintiff; and, if any damage were sustained by him, it was altogether consequential to the acts of the defendants; and, therefore, the action of trespass on the case would have been the proper remedy.

Under the act of 1858, c. 37, the plaintiff might have joined the action of trespass on the case with that of trespass vi et armis, but he has not thought proper to do so; and, if he had, it would not have availed him in this particular case, because the jury did not find that he had sustained any actual damages. The nominal damages were given upon the mistaken supposition of the Judge that there was a trespass with force and arms.

There was error, and the judgment must be reversed.

PER CURIAM.

Venire de novo.

Hicks v. Critcher.

WILLIAM R. HICKS v. ANSON CRITCHER.

A creditor having desisted from suing his debtor upon request by a third person to that effect, the latter adding, "He has put property in my hands to pay his debts, and when I sell it I will pay you all he owes you," held that an action of assumpsit could not be maintained against such person, without showing that he had received money from the property in his hands.

Both parties having been introduced as witnesses for the plaintiff, the plaintiff testified to the language above as having been uttered by the defendant, whilst the latter (upon cross-examination) said "that he did not remember that he ever had any such conversation; that the debtor had never placed any property in his hands, and that he had no property of his in his hands." Upon this the court instructed the jury, that it was their duty to reconcile contradictions if they reasonably could; that as the testimony of the plaintiff was positive, and that of the defendant "that he did not remember," if they found there was no such agreement, it would be an imputation upon the veracity of the plaintiff, whereas if they found that there was, there would be no such imputation upon the veracity of the defendant, and in this way their statements might be reconciled, but that it was a matter for them: Held that the court erred therein in intimating an opinion as to a matter of fact.

(Draughan v. Bunting, 9 Ire., 10, Stanly v. Hendricks, 13 Ire., 85, and Page v. Einstein, 7 Jon., 147, cited and approved.)

ASSUMPSIT, begun by warrant and tried at Spring Term, 1867, of the Superior Court of GRANVILLE, before Warren, J.

The plaintiff testified that one Barnett, a son-in-law of the defendant, owed him $24, due by bond given in 1859; that in the same year, Barnett being about to leave the State and the plaintiff about to sue out a warrant on his debt, the defendant said to him, "Doctor, don't warrant Barnett; he has put property in my hands to pay his debts, and when I sell it I will pay you all he owes you," whereupon the plaintiff desisted, and the debt remains unpaid.

The defendant (who was called by the plaintiff) stated that all Barnett's property was sold before the commencement of this suit; also (upon cross-examination) that he did

Hicks v. Critcher.

not remember that he ever had any such conversation with the plaintiff as that sworn by him; that Barnett had never placed any property in his hands, and that he had no property of his in hand; that after the time spoken of by the plaintiff (to-wit, in Nov., 1859,) Barnett made a deed of trust conveying all his property to one Howard, for payment of his debts; that the proceeds of this property proved insufficient to pay off the debts in the first class, the plaintiff's being in the second class.

The court instructed the jury (amongst other things) that it was their duty to reconcile contradictions in the testimony, if they reasonably could, so as to avoid the conclusion that either party had committed perjury; that, as the testimony of Dr. Hicks was positive, and that of the defendant, "that he did not remember," if they found that no such agreement was made, it would be an imputation upon the veracity of the plaintiff, whereas if they found that it was made, there would be no such imputation upon the veracity of the defendant, and in this way their statements might be reconciled, but it was a matter for them. Also, that if they found that the contract was made, their next inquiry would be whether the defendant had, at or before the commencement of this suit, funds in his hands belonging to Barnett applicable to this debt; if he had, the Statute of Frauds did not apply, and the plaintiff would be entitled to their verdict; but if they did not find affirmatively on both of these questions, their verdict should be for the defendant.

Verdict for the plaintiff; rule for a new trial; rule discharged; judgment and appeal.

Cantwell, for the appellant.

Edwards, contra.

PEARSON, C. J. We do not concur with his Honor in the view taken of the case.

Hicks v. Critcher.

He left it to the jury to say "whether the defendant had funds in his hands belonging to Barnett." By this we are to understand property as distinguished from money; for there was no evidence that he had money in hand. On the contrary, the defendant, being made a witness by the plaintiff, swears that all of Barnett's property was sold by one Howard, to whom Barnett had made a deed of trust.

To entitle the plaintiff to recover it was necessary to show that the defendant had money of Barnett's in his hands. The promise is to pay "when I sell the property."

Draughan v. Bunting, 9 Ire., 10, turns on the fact that Bunting had the cash in hand; and so in Stanly v. Hendricks, 13 Ire., 85, it is assumed that the defendant had made sale and realized the price.

It is familiar learning that, to maintain the action for money "had and received," or for money "paid," the defendant must have the money; indeed the very name given to these actions show that it must be so. See Page v. Einstein, 7 Jon., 147. The suggestion that the defendant either had sold the property, or was guilty of gross laches in not selling in so long a time, cannot avail the plaintiff in this action, which was commenced before a single justice of the peace. Whether it would support an action of another kind is not now presented.

We also think his Honor erred in intimating an opinion as to a matter of fact in regard to reconciling the testimony.

PER CURIAM.

Venire de novo.