Reynolds v. Bedford — 3 Cai. 140

Majority

p. 140

Stephen Reynolds against Daniel Bedford Daniel Herrick against Daniel Bedford.

ALBANY,

August, 1805.

Headnote

A demurrer to evidence is not a proceeding applicable to the 10 pounds act, and a justice may therefore overrule it,

ON a certiorari in these causes to a justice’s court, the errors relied on were, that in one it appeared on the face of the record, the justice overruled a demurrer to evidence, without any demand of judgment from the opposite party, on his having joined m it ; till which period, it was contended, there was no issue in law» That in the other, the constable, though said

p. 141

no joinder in demurer, or judgment prayed for. If a justice undertake to set out the oath he administered to a constable, and it vary from that prescribed, it is fatal, notwithstanding he state that he “ duly” administered it.

to be duly sworn, appeared not to have been so, as the oath set out was only, “ to attend the Í6 U said jury, and to keep them together in a private place, until they had agreed on their verdictand that in both cases the witnesses were sworn “ to maintain the action,” instead of,ic to declare the truth.”

Cadey for the plaintiff,

on the first point, cited 4 Bac. Abr. 137,^[1] and on the last, Day v. Wilber, 2 N. Y. T. R. 134.

In the first of these causes, we think there is no error in the point relied on. The justice, in our opinion, was correct, in overruling the demurrer. The act conferring jurisdiction to justices of the peace, gives to either party the right of trial by jury ; and,when it is considered generally, that the justices cannot be much acquainted with the science of the law, it cannot be important to the parties litigant, to draw the examination of facts from the jury, to the court. An act of the last session, enables every party aggrieved, to obtain a special return of the facts ;^[1] and this we think, ought to supersede demurrers to evidence. They are frequently interposed to entangle justice in the nets of the law ; and we mean to be understood, that the inferior magistrate rightly overruled it, on the ground, that it is a proceeding inapplicable to suits under the “ act for the “ more speedy recovery of "debts to the value of twenty-five “ dollars.” The judgment in that cause must therefore be affirmed. In the second, it must be reversed, agreeably to the decision in Day v. Wilber. For the justice has undertaken to set forth the oath he did administer; and. as it is materially varient, the word “ duly,” cannot be of any avail.

† † 4 Sta. Laws 476. ch. 93.