#### ANNIS BAILEY et al. vs. HENRY P. BRYAN

IVhore an appeal is refused by a magistrate on frivolous ground, the remedy is by recordari.

Proceedings under the statute concerning fences, R. C. ch. 48, s. 3, against the occupants of premises insufficiently fenced, must strictly pursue the statute, and they will be strictly construed.

The report of the freeholders in such a proceeding, should embrace only damages for the particular injury complained of in the warrant, and the judgment of the magistrate should be for such damages only.

This was a petition for a writ of recordari, supersedeas and restitution, heard by Person, Judge, at Spring Term, 1856, of the Superior Court of Law for Pitt County.

Petitioner was summoned, and on the 19th November, 1855, appeared before a magistrate in said county, to answer the defendant, for that “ a certain cattle, the property of the complainant, was unreasonably abused and greatly injured ; and killed one oxen, and that the same was done by the said Annis Bailey and others, or by their connivance and procurement, upon the premises of Annis Bailey; field not enclosed with any sufficient and lawful fence.” Upon this warrant being issued, and on the same day, the freeholders proceeded to view and assess, etc., and put the damages at fifty-six dollars, for that the present plaintiff “ did unreasonably abuse and greatly injure a certain steer, cow and calf, and killed also a valuable steer, the property,” &c.

Judgment was not pronounced upon this report until the 30th November following, and then, it was “adjudged that the defendant did make default as set forth in the plaintiffs complaint;” whereupon “judgment is therefore rendered *358against tbe said defendant, in favor of the plaintiff, for the sum of fifty-six dollars, and costs of suit.”

On the 10th December, an execution was levied upon the personal property of the present plaintiff, and the proceeds of the sale of the same, applied in satisfaction of the above judgment.

The petition for the recordari, &c., is of date the 4th Eeb., 1856. The petitioner charges under oath, that at the time of the rendition of the judgment, application, was made in the usual manner for an appeal; but the magistrate refused the appeal, on the ground, as he alleged, “ that he did not have his forms with him.”

Upon the return of the writ and record to the Court below, the plaintiff’s counsel suggested various errors, and upon the consideration of them, his Honor, being of the opinion, that the judgment of the magistrate was erroneous, reversed and set the same aside, and awarded restitution of the monies collected by execution, of the plaintiff’, under it, and thereupon the defendant above named appealed to tire Supreme Court.

Rodman, for the plaintiff.

. The Attorney General, for the defendant.

Battue, J.

The writ of recordari is used here as it well may be, as a writ of false judgment. Parker v. Gilreath, 6 Ire. Rep. 221; Kearney v. Jeffries, 8 Ire. Rep. 96.

Among the errors assigned by the plaintiff, there is one so obviously fatal to the judgment given by the justice, as to render unnecessary the notice of any other. The Act under which the proceedings were had, confers a special jurisdiction upon a justice of the peace and two freeholders, who are to view the fences of the person against whom the complaint is made, and in a proper case, to estimate the damage done to the stock of the party injured. See Rev. Stat. ch. 48, ss. 2, S ; Rev. Code ch. 48, ss. 2, 3. This authority being under a proceeding so contrary to the proceedings of the common law, must be strictly pursued, and the report of the justice and *359freeholders must be certified under their hands as the foundation of the judgment to be rendered thereon by the justice. This report ought to embrace only the damages for the particular injury complained of, and the judgment should be for such damages alone.

Here, the complaint set forth in the warrant of the justice, was for. abusing and killing “ a certain cattle” and “ one oxen,” whereupon the justice and freeholders ascertained and reported that the plaintiff had been damaged by the defendant, who “ did unreasonably abuse and greatly injure a certain steer, cow and calf, and killed also a valuable steer,” the property of the plaintiff.

The whole amount of the damages is stated to be fifty-six dollars, and the report bears date the 19th November, 1855. Afterwards, on the 30th day of the same month, the justice rendered a judgment for that amount, in which no reference is made to the report, but it is expressed to be for that “ the defendant did make default, as set forth in the plaintiff’s complaint.”

It is manifest in this view of the proceedings, that the justice and freeholders transcended their power in undertaking to assess damages for injuries of which there was no complaint made, and therefore, the judgment given by the justice for the amount of such assessment, while it professes to be for “ the default as set forth in the plaintiff’s complaint,” must be erroneous. Eor this error in the proceedings, without noticing any other, the judgment of the Superior Court reversing the judgment given by the justice is affirmed.

Per Curiam.

J udgment affirmed.