Bull v. Colton

If the plaintiff had unnecessarily stopped with his horse and wagon in the highway, and there-hindered the defendant or the men under him, while repairing such highway, the defendant, as overseer of such highway, would have been justified in using all necessary and proper force to remove the plaintiff from the place where the defendant was at work, if the plaintiff had neglected or refused to pass along, after being requested' to do so by the defendant. But this point is disposed of by the finding of the justice upon the evidence.

If this action is brought for an assault and battery upon the plaintiff, the justice had not jurisdiction of it. (Code, § 54, sub. 3.) Is it such an action 1 There can be no doubt but that the plaintiff could have sustained an action in the supreme court for an assault upon his person and recovered damages therefor and for the injury to his horse. (De Marenville v. Oliver, 1 Penn. N. J. Rep. 380. 1 Dall. 114. Barb. Cr Tr. 212. People v. Lee, 1 Wheel. Cr. Cas. 364. 4 Denio, 453. Whart. Am. Cr. Law, 462.) Such causes of action may be united in the same complaint. (Code, § 167, sub. 2, 3.) But *96the plaintiff had the right to waive all damages for the assault upon his person and bring his action solely for the injury to his horse. His person was not touched, and the damages to his horse were easily separated from any for the supposed assault upon his person. He had his choice between two remedies, and has elected which action he would bring, and such election did not prejudice the defendant. He has lost no right by reason thereof. The recovery in this case is a bar to any other action the plaintiff may institute, for damages arising out of the same transaction. If the plaintiff has not recovered his entire damages in this action he must lose whatever he has failed to recover, for the reason that he has elected what remedy he would pursue, and has split his demand, and must be content with the portion he has got. He cannot sustain another action for the residue. (See Farrington v. Payne, 15 John. 431; Rice v. King, 7 id. 20.)

The justice did right in permitting the plaintiff to divest his complaint of the allegations in it which he supposed might characterize the action as one for an assault and battery. The pleadings in a court held by a justice of the peace may always be amended, when by the amendment substantial justice will be promoted. (Code, § 64, sub. 11.) The action, as it stands upon the amended complaint, is clearly one for “injuring property.” (Code, § 53, sub. 2.) ¡Nor is the action one for an assault and battery, when judged by the complaint before it was amended.

The judgment of the county court was right, and it should be affirmed with costs.

Judgment accordingly.

Shankland, Gray, Mason and Balcom, Justices.]