Opinion of the Court--Lewis, J.

it, and it then becomes a mere naked trespass. Suppose, for example, the plaintiff's land was deliberately [*558]. *overflowed from mere wantonness by the defend

ants, can it be said that they would not be amenable to an action of trespass? Certainly not, for it will not be contended for a moment that the law authorized any such act; but does it give him any more protection who does the same thing from carelessness or negligence?

It will be observed in all the cases referred to by counsel for respondents that the damage was the probable or necessary result of the acts authorized by the law. In such cases trespass could not be maintained, because it is presumed that the law sanctions the immediate act occasioning the damage. Not so here, however. The foundation of the plaintiff's action is the negligence of the defendants in the exercise in the right given them by the law. Without establishing such negligence and carelessness he cannot recover, whilst if he brought his action under the statute, it would not be necessary for him to prove either. The simple proving of damage, although resulting inevitably from the acts authorized, would entitle him to recover. Had the complaint not charged negligence and carelessness upon the defendants, the position taken by counsel for respondents would perhaps be correct. As it is, however, the action is founded upon acts unauthorized by the law, and therefore constituting a trespass. This being the case, the second ground taken by defendants also fails, for the rule of law is well established that all the persons engaged in a trespass need not be united as defendants. The plaintiff has the option to proceed against all or any one, where trespass is of a character capable of being committed by more than one. (Chit. Pl. 87.)

It is intimated that that portion of the statute prescribing the mode of recovering damages, if an exclusive remedy, is unconstitutional because it deprives the injured party of a trial by jury. Without discussing this question at length, we will state that the constitutionality of the act is sustained by many respectable authorities, the correctness of which we are not disposed to dispute upon the mere suggestion of

Opinion of the Court-Lewis, J.

counsel, and without argument. (Beekman v. Saratoga and S. R. R. Co., 3 Paige Ch. R. 45; 1 N. H. 339; 11 Mass. 364; Id. 465; 8 Ohio St. 590.)

The judgment below is reversed, and the court directed to proceed with the trial on its merits.

INDEX.

ABATEMENT.

1. ACTION FOR DAMAGES-PLEA IN ABATEMENT.-When a second action for dam-
ages is brought, including the damages in a former action, and also
damages accrued after the bringing of the former action, the first suit
cannot be pleaded in abatement of the last. A plea of abatement must
go to the entire cause of action. Whilman G. & S. M. Co. v. Balcer, 351.

See PLEADINGS, 23, 24

ACCOUNTING.

See TENANTS IN COMMON, 2, 3.

ACCOUNTS.

1. "MUTUAL, OPEN AND CURRENT ACCOUNTS."-A "mutual, open and cur-
rent account where there have been reciprocal demands," within the
meaning of section 17 of the statute of limitations, is one consisting of
demands upon which each party respectively might maintain an action.
Warren v. Sweeney, 597.

2. IDEM. If all the items on one side of an account were intended by the
parties as payments or credits on account, it is not a mutual, open and
current account where there are reciprocal demands. Id.

3. IDEM-PERSONAL PROPERTY DELIVERED ON ACCOUNT.-If an article of per-
sonal property be delivered to a creditor, with an understanding be-
tween him and the debtor that it shall apply as payment, the transaction
would not constitute a mutual account, consisting of reciprocal demands
between them. Otherwise, if delivered without such understanding.
Id. (Beatty, C. J., dissenting.)

See PLEDGE, 1.

ACKNOWLEDGMENT.

See DEED, 12; EVIDENCE, 7.

ACTIONS.

1. ACTIONS OF CONTRACT AND TORT.-An express promise to pay a certain
sum of money as damages for a tort previously committed would create
a contract upon which an action might be maintained, but the law does
not presume a promise to pay from the tort itself. Knickerbocker & N.
S. M. Co. v. llall, 175.

2. ACTION FOR RECOVERY OF MONEY-VERDICT MUST STATE THE AMOUNT.—In
all actions for the recovery of money, the jury should always find the
amount which the successful party is entitled to recover. As the value
of the property at the time of the conversion is not the true measure of
damage, a general finding of its value is not a sufficient assessment of
the sum of money to be recovered by the successful party in an action
for the wrongful conversion of such property. Id.

See ABATEMENT, 1; ADVERSE Claim, 1; Demand, 5; NEGLIGENce, 1; Nèw
TRIAL, 6; PARTIES, 8; PLEADINGS, 20; QUIETING TITLE, 1, 2; Trusts, 5.

ACQUITTAL.

See CRIMINAL LAW, 2.

ADMINISTRATOR.

See ESTATES OF DECEASED PERSONS, 8.

ADMISSION.

See PLEADINGS, 18, 19.

ADVERSE CLAIM.

1. ACTION TO DETERMINE ADVERSE CLAIM TO LAND.-In an action to de-
termine an adverse claim to land lying on both sides of a river, defend-
ant asked an instruction to the jury, "that if they found from the evi-
dence that plaintiff had shown a right only to that portion of the land
on the north side of the river, he was not entitled to recover with re-
spect to that located on the south side," which instruction was refused:
Held, clearly error. Van Vleet v. Olin, 592.

ADVERSE PARTY.

See PRACTICE ACT, 2.

ADVERSE POSSESSION.

1. ADVERSE POSSESSION.-A person assuming to have the right of way and
continuously exercising that right for a period of five years, without
consulting the owner of the soil or asking his permission, must be con-
sidered as holding adversely. Chollar-Potosi M. Co. v. Kennedy, 328.

AFFIDAVIT.

See ATTACHMENT, 1; CONTINUANCE, 4; CRIMINAL LAW, 6; DEFAULT, 3, 4, 5;
MANDAMUS, 4; VENUE, 6, 8.

AGENCY.

1. AUTHORITY OF AGENT.-No one can be held upon a contract executed by
another as agent, until it is satisfactorily shown that he possessed the
authority to act for the principal in that particular character of transae-
tion. Rankin v. New England & N. S. M. Co., 580.

2. EVIDENCE OF AGENCY.-The mere fact that a person has held himself out
as the agent of another and transacts business in his name, is no evi-
dence of his agency, unless it be further shown that he does so with the
knowledge of the principal. Id.