Schermerhorn v. Tripp — 2 Cai. 108

Majority

p. 107

*Schermerhorn, Mason and Bishop against Tripp, Jun.

Headnote

If a tavern he kept in the house of a justice, and for his benefit, though the .license be in the name of another, who also lives in the house, he is within the 20 th section of the 10Z. act, and liable to trespass for issuing execution, having no jurisdiction. Plaintiff also before him, and constable,executing the writ, are equally liable if they join in pleading general issue. On a joint plea in trespass, no separate justification can be set up.

Error from the common pleas in Rensselaer county. The suit below was trespass de■ bonis , asportaiis, against a justice of the peace, a constable, and a plaintiff, in a suit before the justice under the 101. act, for taking the goods of the defendant, in an execution on a judgment rendered

p. 108

by the justice. The defendants all joined in a plea of not guilty.

The evidence adduced was, that the justice lived in a tavern where he officiated as the tavernkeeper, made out the bills, and received payment for them, but that the justice did bis business in a small out-room, and the license for the house was taken out in the name of the justice’s son. This, however, it appeared from the justice’s own declarations, was done to avoid the operation of the 20th section of the act. 1 Rev. Laws, 502. On this the defendants below demurred to the evidence. The court having given judgment for the plaintiffs, the cause came up on a writ of error, in which the general errors were assigned.^[1]

Foote, for the plaintiffs in error,

submitted the case on the facts presented by the record.

Woodworth, contra,

relied on the words of the act, and the testimony being such as to bring the justice clearly within them. If so, as they all joined in the same plea, they are all equally responsible. For where, in trespass against several,- all unite in a plea of not guilty, the separate justification which one might have pleaded, is gone! 2 Wils. 884. 2 Stra. 993'.^[2]

The same point has been decided in this court in the case of Percival v. Jones, which was an action Drought by a resident freeholder, under the 3d section, (1 Rev. Laws, 492,) against a justice, for apprehending him on a warrant.

Woodworth Was stopped by the court.

Per Curiam. From the evidence below it was conclusively shown, that the justice (Schermerhorn) was, in fact, a keeper of a tavern, or lived in one. If so, he had nc jurisdiction to try the cause, (1 Rev. Laws, 502, s. 20,) and as the constable (Mason) joined with him and the plaintiff in pleading the general issue, they are all equally trespassers. Had the constable *pleaded separately, he would probably have been excused ; but he has now involved himself with the others, and we cannot separate their fates.

.Judgment of the common pleas reversed.