Hammat v. Russ , 16 Me. 171 ( 1839 )

The opinion of the Court was by

Shepley J.

The writ was dated on the 30th of May, 1836, and the trespass was alleged to have been committed after that date on the first day of July, 1836. This shews the date of the trespass to have been a false, or an impossible one, and exhibits some error or mistake. A deed is not destroyed by a false or impossible date. Com. Dig. Fait, B, 3. And there does not seem to be sufficient reason for giving such a date more effect upon a count in a writ than upon a deed.

If the amendment may be said to give to the plaintiff a cause of action, when by reason of the material defect none existed before, that is no valid objection to it. For the fifteenth rule of this Court allows amendments in matters of substance, which implies tbe necessity of removing a material defect. Amendments in such cases are allowed, when the action or plea is not thereby changed, and when no new subject matter is introduced. 3 Mass. B. 208; 1 Mass. R. 440; 2 Pick. 23.

The defendants, for the purpose of proving the plaintiff’s declarations, having been permitted to read a complaint signed by him, claimed to introduce the record of the proceedings upon it between him and tbe canal company to prove, that he had recovered damages against the company. If admissible for the defendants to prove damages had been recovered, it should have been admissible for the plaintiff to prove tbe contrary, in case none had been recovered. Such a course would have the effect to prejudice one ■party by the acts or omissions of others in a case to which he was not a party. The defendants might have proved on this trial, if practicable, that the injury was done by the company, and not by them. The record not being between parties or privies was properly excluded.

The instruction, which was requested and not given, applies to “ a temporary displacement of the sluice,” and does not appear to have been authorized by any testimony in the cause, there being no evidence of a mere temporary interruption, or of any attempt to replace it. The instructions given, are complained of, because the jury were informed, that the defendants would be trespassers by removing the sluice from the spot where it was placed. And it is said the plaintiff’s rights were only to have it remain “ on or near the place,” where it then was. The instructions might have been liable to objection, if the proof had been, that the defendants only removed it without injury to a place equally convenient and near the other, but applied to the testimony in the case they were correct. What was said of the consequence of not replacing the sluice, does not appear to have communicated the idea, as supposed in the argument, that by neglecting to do so, they became trespassers, ab initio; for it had already been stated, that they were trespassers by the original removal. The object seems to have been to distinguish this case from the case of a temporary removal and replacing of it without injury.

The defendants were responsible for all such damages as would necessarily arise from their acts, and the instructions did not authorize the assessment of other damages.

Judgment on the verdict.