Lippencott v. Smith

4 N.J.L. 95

• Court: Supreme Court of New Jersey
• Decided: February 15, 1818
• Status: Published

Opinions

Opinion of the Court.

Kirkpatrick C. J.

The reasons assigned for the reversal <~> of this judgment, are 1. That the state of demand is insufficient and unlawful, and 2. That the action is in trespass on the case; whereas, if the state of demand contains any cause of action at all, it is in trespass.

The state of demand is, that the defendant, about the month of September 1814, took away from the hay-landing, near Browning’s mill, a certain rope cable, with a fifty-six tied to one end, to the plaintiff’s damage, 40 dollars.

Under the first reason, it is said, that the state of demand, charges the taking to have been about the month of September, *not giving the precise month, or the particular day of the month. But this would certainly be carrying the matter too far, especially as the day is not material. It is said again, that the state of demand does not aver that the said cable and fifty-six were the property of the plaintiff. It has, however, long since been settled, that if the state of demand, in these courts, has so much particularity, as fully to apprize the defendant of the nature of the case, and also to preclude another action for the same thing, it is enough. It answers all the substantial purposes of justice. It shall not be .held ill, for lack of mere form.

The second reason, has still less foundation. There is no breaking of the close, no taking from the person, no act of violence or force alleged. The locus in quo is not stated to be the plaintiff’s freehold, hut on the contrary) to bo the hay-landing at Browning’s mills. It is merely a taking of the plaintiff’s cable and fifty-six, by any of these circumstances. Now, trespass on the case is said to be an action for the recovery of damages, for acts unaccompanied with force, and which in their consequences only, are injurious. The present seems to be precisely that action. Therefore, let judgment be affirmed.