Smith v. Woodman

As a general rule, where a remedy is given by statute, and does not exist at common law, the declaration must be special upon the statute. A declaration founded upon sections 5 and 6, chapter 180 of the Revised Statutes, giving the action of assumpsit to one co-tenant against another for his just share of the value of any trees destroyed or cut and carried away from the premises, or any other property attached thereto and destroyed, severed or carried away, and also to recover damages for the exclusive possession and income of the premises against the will and without the consent of the other co-tenant, must be special. Á general indebitatus assumpsit, upon the sections, cannot be sustained. To an action brought upon sections 5 and 6, chapter 180 of the Revised Statutes, a defendant cannot file in offset, claims similar to those for which the suit is brought. The causes of action contemplated by these sections are not mutual debts and demands which can be the subject of set off. Courts of law have power to set off mutual judgments, and to withhold giving judgment for a plaintiff, until the defendant, by using due diligence, may obtain his judgment.

Assumpsit, founded upon the statute giving to any co-tenant a right to bring this form of action against one or more of his co-tenants, for the recovery of his share of the value of any trees destroyed, or other property severed or carried away from the real estate held by them in common. The writ contained three counts. The first was in substance as follows: In a plea of the case for that the plaintiff and defendant, at New Hampton, on the first day of November, 1848, were seized and possessed of a certain tract of land as tenants in. common, situated in New Hampton, and bounded and described, &c., containing about one hundred acres, and while so seized and possessed thereof as tenants in common, the defendant, on the first day of December, 1847, and on divers days between that day and the first day of March, 1850, by himself, his beasts and his servants, entered upon said land and cut and carried away therefrom one hundred and fifty cords of wood, of the value of $150, and in consideration thereof the defendant then and there promised the plaintiff to pay him one half the value thereof, on demand, which the plaintiff avers is the sum of $75. Yet though requested, has never paid the same. The second count alleged that the plaintiff and defendant, on the first day of April, 1850, being seized and possessed, as tenants in common, of the land and premises described in the first count, and on divers other days and times between the first day of April and the first day of November, 1850, by himself, his beasts and his servants, entered upon said land and ploughed, occupied and cultivated a certain piece or parcel thereof, to wit, one acre, and appropriated the proceeds of said cultivation to his, the defendant’s own use, to wit, twelve bushels of corn, of the value of $12, and fifty bushels of potatoes, of the value of $12, all of the value of $24, and in consideration thereof the said defendant then and there promised the plaintiff to pay him one half the value thereof on demand, which the plaintiff averred was the sum of $12. Yet though often requested, the defendant never paid the same. The third count was a general indebitatus assumpsit for • $87, according to the count annexed, as follows : Noah Woodman to Moses Smith, Dr. 1850. March 1 — To seventy-five cords of wood, at $1 per cord, .....................$75,00 Nov. 1 — To six bushels corn, at $1 per bushel,..... 6,00 “ “ To twenty-five bushels potatoes, at six dollars, ................. 6,00 $87,00 The defendant pleaded the general issue, and filed a brief statement, accompanied by a set off. The brief statement and set off are substantially as follows : The plaintiff will take notice that the defendant will insist and prove on the trial of this action, that the plaintiff has received from the land described in the writ a greater amount of wood, pasturing, crops, income and products from the time when the parties commenced holding the same as tenants in common to the date of the 'writ, than have been received by the defendant, to the amount of $100. And that the plaintiff has received from the pasturage upon said land mentioned in the account hereto annexed, the pasturing, and of the value therein stated. And that the defendant has expended, in the improvement of said land, the labor, and applied to the same the manure mentioned in the account. And that the plaintiff has also received from the land the crops and the wood mentioned.in the account; all which the defendant claims to have allowed as a set off to any amount which the plaintiff may be entitled to recover in said action. Moses Smith to Noah Woodman, as tenants in common, Nr. 1848. To pasturing five of plaintiff’s cows, by the season, at $3,..........................$15,00 To pasturing three of plaintiff’s three years old, by the season,...................... 7,50 ££ two of plaintiff’s two years old, by the season, ................... 4,00 K five of plaintifi’s one year old, by the season,.......... 6,25 “ one horse 2 months,................. 2,50 To twenty-five bushels of oats,................... 10,00 1849 — pasturing two four years old four months, at nine shillings, .............. 6,00 a five cows by the season,.......... 15,00 ££ two three years old, by the season,. 5,00 <£ three two years old, by the season,. 6,00 ■“ four one year old, by the season,... 5,50 4‘ three cosset sheep, at four shillings,. 2,00 1850 — pasturing seven cows, by the season,........ 21,00 <£ one two years old,.............. 1,50 <£ two one year old,................ 2,50 1849 and ’50. To six days labor and board getting off stone, ploughing and fencing one acre pasture land, done by defendant, .................. 6,00 “ five loads manure put on said land,. ........... 5,00 41 crops on said common land, two seasons, received by plaintiff, ................. 50,00 41 wood taken from said land by said plaintiff, in two years,...................... 40,00 $210,75 The court ruled the matters set forth in the brief statement and set off, inadmissible as a defence to the action; to which ruling the defendant excepted; and the questions arising upon the correctness of the ruling were transferred to this court for determination. If the plaintiff can recover at all in this case, it must be upon the third count in his declaration, which is indebitatus assumpsit, upon an account annexed. The other counts are not founded upon the statute. The first lacks the allegation that the trees were standing, lying or growing on the real estate; and the second is deficient in not stating that the taking was against the will of the plaintiff. Independently of the statute, assumpsit will not lie, but the action should be account or case. Fanning v. Chadwick, 3 Pick. 420. At common law no action would lie. Wheeler v. Horn, Willes, 208. And since the statute of Anne no action in any form will lie by one tenant in common against another, who, as in this ease, occupied and received the income, the other not being excluded from the occupation. Sargent v. Parsons, 15 Mass. Pep. 149. Whenever, as in the third count in this case, a recovery can be had in indebitatus assumpsit, a set off is admissible even under the English statutes, though it is excluded where the cause of action or subject of the set off is a claim for general damages. The set off may be of any claim which would be recoverable under the same form of declaring. Cowp. 56 ; 1 Tidd’s Prac. 603, 604. The form of declaring adopted in the third count is the correct one, as the action is not for the recovery of general damages, but, by the terms of the statute, for the value of property severed from the land. Rev. Stat. eh. 180. As the set off consists of a claim of the same nature, it is admissible. This is an intentional change of the former statute, which provided for a recovery of damages, against the co-tenant, who is also described in it as a party offending. Act of July 5th, 1834. If the plaintiff’s claim was recoverable in this general form of declaring, he could not by declaring specially exclude a set off Birch v. Depeyster, 4 Campb. 385. Under the New Hampshire statutes the English rule, which is founded upon the construction of the word “ debts” in the statute of 2 George II. does not apply. Our statute allows the setting off not only of debts but of demands. Rev. Stat. eh. 187; Act of February 8, 1791, Laws, 1830, p. 79. To show that the rule practiced upon by the English courts is founded upon the use of the word “ debts ” in this statute, we cite Colson v. Welch, 1 East, 378. Under statute provisions, which are like that of New Hampshire, of a more general character, any demand arising ex contractu, and even torts, if connected with the transaction which is the subject matter of the suit, have been allowed as set offs. 3 TJ. S. Digest, Title Set Off; 5 lb. same title. At common law, one tenant in common could maintain no action against the other in respect to the estate, except the action of account and a bill in equity. Now one tenant in common may maintain an action of assumpsit against the other for his share of trees cut, &c., ■and also for damages for excluding him from possession of the land. Our declaration is for the cutting of trees, 150 cords, and for entering and cultivating land and taking crops. The question is, can this set off be allowed ? The statute in this ease gives an action of assumpsit, but does not prescribe the mode of declaring. It gives a remedy, however, that did not exist before, and the declaration must‘contain such allegations as will bring the case within the statute. It is like the law giving a remedy against the town where a pauper has his settlement; and there it is decided that the declaration must be special. Andover v. Salem, 3 Mass. Rep. 438; Bath v. Freeport, 5 Mass. Rep. 326. And it is understood so to have been held in this State. Nor is there anything in the nature of the case that justifies a general count. The remedies existing before this statute do not go upon the ground of any implied promise to pay. But the cause of action is in its nature a tort, and may be recovered by an action of trespass for mesne profits, as in a case where there has been a previous recovery in a writ of entry. Independent of the statute there is nothing of the character of a contract at all, and such being the fact, the declaration must contain such allegations as bring the case within the statute. But whatever may be the precise form of the declaration, the substance of the thing is a tort, and the damages wholly unliquidated. The set off offered is for pasturing cattle, for oats and other crops, for wood taken from the ground by the plaintiff, and for improvements made by the defendant upon it. By the Revised Statutes, ch. 187, 4 and 7, mutual debts and demands may be set off. The debts must be mutual debts on both sides. Bach must be in the nature of a debt. There is no set off in actions ex delicto ; nor in actions ex contractu, if the claim of either party be for uncertain or unliquidated damages, as for not delivering goods according to contract. 1 Chit Pld. 571; Howlet v. Stride-land, Cowp. 56, 57 ; Hardcastle v. Neltlewood, 5 B. & Aid. 93 ; Freeman v. Hyett,. 1 Black. 394; Brown v. Cummings 2 Caines, 33; Gordon v. Bowne, 2 Johns.. 160; Dunean v. Lyon, 3 Johns. Ch. Rep. 358. The debt must be clearly ascertained and liquidated. In Gordon v. Bowne, 2 Johns. 160, Chancellor Kent says, “ both demands must be specific and certain ; on each side a debtP And this must be the doctrine here. The jury are to pass upon a great variety of matters. Bamages are unliquidated where there is no certain rule provided by the parties or by the law operating on the contract by which to ascertain the amount, Me Cord v. Williams, 2 Ala. Rep. 71. A matter for which indebitatus assumpsit would not lie, is not the subject of set off. Howlet v. Strickland, Cowp. 56, 57; 1 Chit. Pld. 571; Hardcastle v. Nettlewood, 5 B. & Aid. 93. So it must be a money demand for which debt or idebitaius assumpsit would lie. 2 Saund. on Pld. & Ev. 971: and reduced or reducable to a certain pecuniary amount. Ibid. In this case the claim of the plaintiff is unliquidated and sounds in damages. And so is the claim of the defendant, proposed to be set off. To an action for not paying over a sum of money to a third person as by agreement, there can be no set off Col-son 8f a. v. Welsh, 1 Esp. 397. Where the amount to be recovered is uncertain, and to be assessed by a jury, it is not the subject of set off Weirgall v. Waters, 6 Term. Rep. 488.