Emory v. Collings — 1 Del. 325

Majority

p. 325

CHARLES C. EMORY vs. ROBERT COLLINGS.

Headnote

Trespass lies for throwing from the public road dead animals into plaintiff’s well.

In trespass the locus in quo must be proved to be in the hundred laid

The declarations of the deft, at the time are evidence to show the quo anima, and admissible as a part of the res gesta

The question of jurisdiction of this state over the bay and river Delaware considered»

Trespass quare clausum fregit “and threw divers dead geese into the well of said plff. and choked and filled up the same, and destroyed the water thereof, and prevented the plff. from having the use and benefit thereof in as ample manner,” &c. &c. The locus in quo was stated to be a certain close in Dover hundred, Kent county.

The proof was, that the deft, stood in the public road and threw the geese (which were his own geese and had been shot by plff. for trespassing) over into the plff.’s well. Whereupon

Frame, for deft, moved a nonsuit:

First. Because there was no proof of an entry on the plff.’s close, and the action should have been in case, as case for erecting water spouts and throwing the water over on another’s premises.

Second. Because there was no proof that the trespass was committed in Dover hundred, as laid in the narr; nor even proof that it was committed within the county. (2 Saund. PI. 4’ Ev. 855.J

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But on looking into the authorities he gave up the first point as not tenable, and

The court ordered a nonsuit on the other point,^[1]

Judgment of nonsuit.

Bates and Ridgely for plaintiff.

Frame for defendant.

The case was renewed, in the same form of action, and came on, for trial at the April term, 1835.

The deft, offered to prove that at the time he threw the geese in

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the well he was very much excited; that it was not done from preconceived malice, but on the moment, and that he complained much of the plaintiff having killed his geese.

This testimony was objected to, and insisted on.

Frame. The plaintiff goes for vindictive or exemplary damages; the evidence explains the quo anima and the provocation.

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J. M. Clayton. We don’t object to competent proof of the state of feeling under which the deft, did the act; but we object to his declarations as any evidence of the quo anima.

Frame. They are admissible as a part of the res gesta.

The evidence may go to the jury. The plaintiff seeks to recover not merely compensatory damages, but to make an exam-

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pie of the deft. If Collings was under the impression that Emory had killed his geese, and on this impression, being excited, threw the geese down the well, whether this impression was well founded or not, it would go to disprove malice; and his declarations to that effect made at the time, being part of the res gesta, may be given in evidence. Roscoe on Evidence 22, &c. 1 Phillip’s Ev. 218.

Bates and Clayton for plaintiff.

Frame for defendant.

The plaintiff had a verdict.