Smith v. McFall

Smith, J. — The plaintiff, having procured an assessment of damages, sustained from trespassing animals, by the proper fence viewers, filed, in the office of a justice of the peace, a certificate in the form prescribed by section 5, chapter 22, of the R. S., appending thereto a statement that the animals were the property of the defendants. The justice thereupon issued a summons against the defendants, who appeared and moved to dismiss the cause for want of a sufficient cause of action. This motion [128] was overruled by tbe justice, who proceeded to try the cause anc[ rendered judgment in favor of the plaintiff. ¿efen¿ailts appealed to the Circuit Court, when they renewed their motion to dismiss, and it was then sustained. II. Brown and A. G. Porter, for the plaintiff. R. L. Walpole, for the defendant. The cause of action is alleged to be deficient in not stating that a demand had been made of the defendants, for the damages assessed, before the suit was brought. The 7th section of the chapter above referred to provides that upon filing such certificate, the justice shall issue his summons, &c. It is true the section immediately preceding requires a demand- to be made before the right of action accrues, but though it would be necessary to prove, upon the trial,-that such demand had been made, the-only cause of action required to be filed is the certificate. It has been decided that in actions of debt on penal bonds conditioned for the performance of covenants, commenced before a justice of the peace, no statement of the demand, except the filing of the bond, is necessary. Olds v. The State, 6 Blackf. 91. Per Curiam. — The judgment is reversed with costs. Cause remanded, &c.