HAMMER v. PIERCE, 5 Del. 304 (1850)

J. P. HAMMER, by his father and next friend GEORGE HAMMER vs. ELIAS PIERCE.

Superior Court of Delaware.
Fall Sessions, 1850.

ACTION of trespass vi et armis, and assault and battery. The venue was laid in New Castle county.

After the plaintiff closed, Mr. Rogers for defendant, moved a. nonsuit, on the ground that there was no proof of the place where the trespass was committed. The only proof was, that it was in Fourth street, or Fourth and Poplar, without any mention of what place.

Mr. Bradford said it would be for the jury to say whether it was not proved that the injury took place in Wilmington. But he denied that the action of trespass assault and battery was a local action. It is a transitory action; and the venue may be laid any where. He cited Wheat. Selw., 29; 1 Leigh N. P.; 1 Saund. Pl. Ev.

Page 305

Mr. Rogers. — Though it be a transitory action, the venue must be proved as laid.

Mr. Bayard. — Not so. If the action be transitory, the venue is of no consequence. There need be no proof about it. An assault and battery in Pennsylvania may be the subject of an action here, and the venue may be laid in any county.

The Court refused the nonsuit, on the ground that the action of trespass assault and battery is a transitory action, and the venue need not be proved.

The defence offered to prove the declarations of the plaintiff’s father. Objected to.

Mr. Bayard. — George Hammer is merely a nominal party, as the next friend of the plaintiff.

Mr. Rogers. — He is entitled to the fruits of the verdict.

Mr. Bayard. — Damages for an injury to the child are as much his as a legacy left him.

The evidence was ruled out.

Verdict for plaintiff $203 00.

Bradford and Bayard, for plaintiff.

Rogers, for defendant.