Williams v. Perkins

1 Port. 471

Opinion

By Mr. Chief Justice Saffold :

Williams brought, in the Circuit Court, an notion of trespass quaro clausum fregil against tbe defendant. The injii-ry complained of was, that Perkins had unlawfully entered upon the plaintiffs land, and taken and carried away his rails, &c.

A trial was had, in which the plaintiff recovered, by verdict, damages to an amount not exceeding five dollars.— Whereupon, the court rendered judgment in favor of the plaintiff for the amount of damages so recovered, and only the same amount of costs, and against the plaintiff for the residue.

The error assigned is, that fhejdaiiitiff should have been allowed full costs against the defendant.

The law by which the court is supposed to have been governed, is, the statute of 1822,

a which provides, that “ In all suits brought to recover damages for slander or trespass, assault and battery, the plaintiff shall not recover more costs than damages, if the damages do not exceed five dollars, unless the Judge, before whom the suit was tried, shall certify that more damages ought to have been awarded by the j"ry.” It is not contended that such certificate was given, but that the statute does not apply to a case of this nature. This is the only question for consideration.

The language of the statute is rather equivocal. Jt uses the generic term trespass, preceding and following it, with designated actions, both of which, as well as many others, are embraced in its comprehensive sense. If this term was in- ■ tended by the legislature to bo understood in. its greatest latitude, it was entirely unnecessary to have expressed either the actions of slander or assault and battery, for both these and a large proportion of all the actions known to the law would have been included by the former alone. In order to explore the intention of the legislature in the language employed, it may be useful to consider the effect of a latitudinous construction of the term trespass. It could be made to embrace all actions for injuries riel armis — all actions upon the case arising ex delicto or ex contractu, of each of which classes there is a great variety. It is true the action o.f “trespass” merely, in its technical acceptation, is not so applicable to wrongs or injuries, unaccompanied with force, as the action of “trespass on the case,” yet the same term is embraced in the title of each, and in common acceptation, is often applied to either. From the express designation of the action of slander, and also of assault and battery, when the former could have been fully embraced by inserting the action of trespass on the case, and the latter by the action of trespass alone, or trespass vi etarmis, the legislature must have intended to limit or qualify the term trespass. It is also irrational to suppose that even all actions of trespass vi el arniis could have been intended. We have heretofore held that the action of trespass to try titles, was not embraced. For many other injuries Committed with force and arms, the reason of the statute is equally inapplicable. We therefore think that the only safe and legal construction that can be placed on' the terms trespass, assault and battery, as used in the statute, is, that the latter terms were intended to restrict and limit the former, and that the action of trespass for assault and battery alone is provided for by them.

the report of the case of Reed vs. Gordon,b the words of the statute are inaccurately quoted; (as was suggested in argument,) the manuscript opinion of the court recites the statute as I have done, omitting the disjunctive conjunction or between the words trespass and assault and battery ; such also is the true expression of the statute.

We therefore reverse the judgment below, and render judgment in favor of the plaintiff for his full.costs.

Aik. D. 261 Section 21.

2 Stew. 469.