Damron v. Roach ( 1843 )

Green, J.

delivered the opinion of' the court.

This is an action of trespass brought by Roach against the plaintiff in error for throwing down the plaintiff’s fence. On the trial of the cause, the plaintiff offered evidence to prove that he owned three or four, cattle that were in the field when the fence was thrown down, and that they escaped in consequence thereof; and that said cattle were worth fifty dollars. The defendant objected to the reception of any evidence about the escape of the cattle and their value, but the court overruled the objection and permitted the evidence to go to the jury. The jury found for the plaintiff, and the defendant appealed to this court.

The only question now for the consideration of the court is, whether the Circuit Court erred in., admitting this testimony. Formerly in actions of trespass, the evidence was limited to the proof of such facts in aggravation of damages, as occurred in the perpetration of the trespass; while injuries consequent upon the trespass, could not be enquired into. Bul. Nisiprius, 89,10 Rep. 130, B. Osborne’s ca,se. But the rule now adopted is, that the plaintiff may prove special damages, if they are strictly the consequence of the trespass committed, or if the act done by the defendant, causing such special damages, constitutes a part of one entire transaction, of which the principal trespass was the commencement. 2 Philips Ev. 188, ch. 14, sec. 1.

In this case the escape of the cattle was strictly the consequence of the trespass committed; and although an action on the case might possibly be maintained for the value of the cattle, yet as the parties would be the same, there can be no reason for rejecting this evidence in the present action, and turning the plaintiff over to his action on the case; thus making it necessary to prosecute two actions, when the whole matter may be settled as easily by one. We think there is no error in this record, and affirm the judgment.