#### Green against Ferguson.

NEW-YORK,

October, 1817.

Where a summons was Issued from a justice’s court against A« which the take,served turned’the *sr.jved!and*dered against a. alleged to ime £y the TMhtinr, j"01a"t a£‘io^ KJ* “0“"' defcndanltnmay nation TMdes¡ctmii/' the^ímee for which judgment was rendered against him *i*tot * as the defendant acted in good faith, the plaintiff ought not to recover more than his actual damages, and alleged in his_ declaration, that by the false return he was prevented from making a defence, when he had a good and substantial one cn the merits, the evidence in question is a proper answer to this averment tn an action on the case, the plaintiff, under the general issue, is bound to prove the whole charge in hH declaration»

IN ERROR, to the court of common pleas of the county of

The defendant in error brought an action on the case against the plaintiff in error, in the court below, for a false return by latter, as a constable, to a summons. The declaration stathat on the 30th of *May,*1811, a justice of the peace, in county of *Oneida,*issued a summons, directing the plaintiff below to appear, to answer one Parke, who sued as well for himself as for the overseers of highways in the town of *Rome,*in a plea of 25 dollars of debt, which summons was delivered to the defendant below, to be executed; that the defendant did not summon the plaintiff to appear, but, on the contrary, on the return day of the summons, falsely and maliciously returned that had personally served it on the plaintiff; that such proceedings were had before the justice, that judgment was render*392ed against the plaintiff; that by reason of the neglect of the de> fendant to summon him, and of his false return, he was prevented from making any defence before the justice, when, in truth and jn fact, he had a good and substantial defence on the merits, in the said suit, and did not owe the sum for which it was brought; and that by means of such judgment, he had been obliged to lay out and expend divers large sums of money, &c. The defendant below pleaded not guilty.

At the trial, in the court below, it appeared that the action brought by *Parke*against the defendant, before the justice, was for the penalty of 25 dollars, for drawing a seine in *Fish Creek.*It was proved that the summons was endorsed *personally served,*and that the defendant below had confessed that he did not serve the summons on the plaintiff, but on one *James Ferguson,*by mistake, supposing him to be the plaintiff, *Robert Ferguson.*The defendant below offered to prove that the plaintiff had actually been guilty of drawing a seine in *Fish Creek,*in the manner, at the time, and for the purposes stated in the declaration in the cause before the justice ; and that *Fish Creek*was one of the streams mentioned in the act imposing a penalty for the offence for which that suit was brought; but the court refused to admit the evidence. A verdict was found for the plaintiff below.

The counsel for the plaintiff in error, tendered a bill of exceptions to the court below, which being removed into this court, by writ of error, was submitted to the court without argument.

*Per Curiam.*

The question is, whether the evidence offered was admissible, in mitigation of damages. Every consideration of justice seems to be in favour of admitting the evidence offered, if it can be done without violating any principles of law; for it is very evident, from the testimony, that it was a mere mistake in the officer, he having served the summons on *James Ferguson,*Supposing him to have been the right person. The plaintiff is, undoubtedly, entitled to recover all the actual damages he. has sustained, but ought not to recover more, when the officer acted in good faith. No rule of law would have been violated in admitting the evidence offered. It was, in fact, directly meeting and answering one of the averments in the plaintiff’s declaration. The plaintiff alleges, that he w'as, by the false return, prevented from making any defence before the *393said justice, when, in truth, and in fact, he had a good and substantial defence on the merits in the said suit. In this action the plaintiff's claim is founded upon the justice and conscience of his case. And, therefore, whatever will, in justice and conscience, according to the circumstances of the case, mitigate or bar the claim, ought to be received in evidence. If the plaintiff sought to recover more than his actual damages, this would clearly have been good evidence. The plaintiff, under the general issue, was bound to prove the whole charge in the declaration. (1 Chitty. 486.) The evidence was, at all events, admissible in mitigation of damages, and the judgment must be reversed.

Judgment reversed.