Angus v. Flood , 15 N.J.L. 437 ( 1836 )

The opinion of the court, was delivered by

Hornblower, C. J.

This was an action of trespass on the case, brought by Flood against Angus, before a Justice of the Peace. The statement of the demand, is as follows: “ The plaintiff complains of the defendant for this: that on, &c. at &c. the plaintiff was possessed of a certain sow, of great value, &e. that afterwards on, &c. at, &c. he the defendant, with force and arms did enter in and upon the pen, wherein said sow was kept, and broke down and destroyed the said pen, by means whereof the plaintiff lost said sow ; and other wrongs, &c.

The defendant moved to non-suit the plaintiff for want of a sufficient state of demand, which motion was overruled; the defendant then tendered a plea of title to the pen or inclosure in which the said sow was kept, together with a bond pursuant to the statute: but this plea and bond were rejected by the Justice, on the ground that the injury complained of, was to personal property.

It is difficult to tell from the plaintiff’s state of demand, what he intended to complain of; the breaking of the pen, or the loss of his sow — perhaps of both. But if I can understand it, the injury stated, amounts to a trespass vi et armis, per quod, the plaintiff lost his sow. He does not say, it is true, that he was in possession of the pen, or on whose premises it was ; and for that very reason, the state of demand is insufficient. If it was his inclosure, the action should have been trespass ; if not his, then he ought not to have complained against the defendant for entering with force and arms.

The judgment must be reversed.

Ford, J. and Ryerson, J. concurred.

Judgment reversed.