Blin v. Campbell — 14 Johns. 432

Majority

p. 436

Blin against Campbell.

NEW YORK,

October, 1817.

Headnote

The plaintiff tion "in a jusan assault and which a trial was bad, and Íerldenta»arjnst íiwds '"brought an action on the nother justice, for the same injury. Held, that as the former action for the assault and battery was not within the jurisdiction of the justice, the judgment thereon was a mere nullity, although unreversed, and not a bar to the subsequent action on the case. "Where there is an immediate injury attributable to negligence, the party injured has an election either to treat the negligence of the defendant as the cause of action, and to declare in case, or to consider the act itself sa the injury, and to declare in trespass.

IN ERROR, on certiorari to a justice’s court,

The defendant in error brought an action of trespass on the case, in the court below, against the plaintiff in error, and declared for an imury done by the defendant below, in firing a j j j o ^ pigt°l and w'ounding his leg. The defendant below pleaded in bar a former trial, and judgment, for the same cause of action,

p. 437

and proved that the plaintiff had brought an action of trespass before another justice, wherein he had complained of the same injury, and the justice, after having clear and explicit proof of the fact, gave judgment against the plaintiff; but the justice, in the present case, decided that that judgment was no bar to this suit, and the plaintiff having proved that the defendant, being a trooper, had wounded his leg by negligently firing a pistol, the justice gave judgment for the plaintiff below, (the defendant in error.)

The former action of trespass, for the same injury, was clearly an action for an assault and battery, of which the justice had no jurisdiction. It was a proceeding coram non judice, and, therefore, void. The justice did right in disregarding it as a nullity, although unreversed. The only question then is, whether this action of trespass on the case is not liable to the same objection of want of jurisdiction. ( From the authorities on the subject, it appears, that if the injury attributable to negligence, though it were immediate, the party injured has an election, either to treat the negligence of the defendant as the cause of action, and to declare in case, or to consider the act itself as the injury, and to declare in trespass. (1 Chilly Plead. 127., and the cases there cited.) The proof on the trial clearly showed the act to have been unintentional. It is a case of mere negligence ; and, as there is no appearance of undue evasion on the part of the justice to extend his jurisdiction, the judgment ought to be affirmed.

Judgment affirmed.