Wetzell v. Waters

Scott, Judge, delivered the opinion of the court. Considering the nature of this suit, it was a long time delayed. The wrong was in the nature of a trespass, and was committed in 1844, and suit was not brought until 1851: the damages are enormous, and a very compendious mode of arriving at their amount was employed. These considerations, in the state of the record, cannot affect the validity of the judgment below, but they may give weight to other objections, and with them lead the mind to the conclusion that justice would be promoted by another trial of the cause. 1. It does not appear from the record, that the damages were assessed in a legal way. It seems that the court took it for law, that the damages claimed, as there was a judgment by default, should be the standard for the regulation of the amount of the plaintiff’s recovery. The late practice act does not seem to have varied the measure of damages, in actions founded on wrongs causing injury, the extent of which can only be ascertained by the execution of a writ of inquiry. Where the demand is not liquidated, or where the law does not fix the measure of damages, a writ of inquiry must be executed by a court or a jury, and the damages sustained must be shown by proof. This, it appears, was not done. The entry is, “that the court does find that the said 'plaintiff have and recover from the said defendants, the sum,” &c., as if the damages sustained appeared of record, or as if their amount was a matter fixed by law. It is not maintained, that the entry of the execution of a writ of inquiry should contain the fact, that evidence was heard or witnesses were examined, but it should appear, that the damages were assessed before a judgment is rendered. Had the damages awarded been less than the sum claimed, it might be presumed that this was done. But as the record appears, [399] it would seem that the court took it for a matter of law that the damages claimed should be the measure of the plaintiff’s recovery. 2. A public administrator is regarded like any other administrator in bringing suits. He need not show that the facts exist which authorize him to take on himself the burden of administration. None but an executor, or legally appointed administrator, can dispute his authority, except in cases in which the same thing might be done in relation to private administrators. 3. The sureties, in entering into the bond of indemnity, made themselves trespassers ; by so doing, they placed themselves in the same position occupied by the principal in the bond. Judge Ryland concurring, the judgment will be reversed and the cause remanded. Judge Gamble did not sit in the case.