Dennison v. Collins — 1 Cow. 111

Majority

p. 111

Dennison against Collins.

Headnote

Certiorari from a Justice's Court.

Though the c“ur¡*' be for §25 on-^¿ration 6 be for «tore, it the justice/ of his > - ,-s it a material van^°^e costs of an adjournreq by the°de- ^ ia~ judgment for the plaintiff, it is error.

A judgment ■will not be set aside because a jury drink spiritous liquor, during a suspension of the proceedings in the ^for^ doing this while they jury.111™2 88 8 _t pear that the m^hed^one party more er; nor that the jury drank to excess,

Assumpsit, by Collins against Dennison. The process was for $25 damages, under the “ act for the recovery of debts to the value of twenty-five dollars.” The declaration claimed damages to $27,10. Issue being joined, and -jury impannelled and sworn, the trial was, without objecnon, suspended about two hours, to enable the delendant to procure a witness. - During this time, a bottle of liquor was handed round, of which the jurors, and other persons in the room, drank. But nothing was drank, by the jurors, for an hour and a half previous to the re-commencement of the proceedings. Verdict for the plaintiff, for $10 ; and the Justice taxed, as a part of the plaintiff’s costs, 9 cents, for an adjournment previously procured by the defendant, which was included in the judgment for the plaintiff.

JV*. Williams, for the plaintiff in error.

Hubbard <&• Slower, for the defendant.

It is contended, that the plaintiff, by laying his damages, in his declaration, at more than $25, ousted the Justice of his jurisdiction, the suit being under the 25 dollar act. It is possible that, before the extension of a Justice’s jurisdiction to 50 dollars,^[1] this objection might have been fatal. The case of Bowditch v. Salisbury,^[2] appears to countenance that opinion. But now it is an objection in form merely. The Justice had jurisdiction beyond the amount claimed in the declaration. The objection, therefore, of a want of jurisdiction, is not well founded. But it is objected, that there is a variance between the process and declaration, the A 7 one being for $25, and the other for $27,10. In Bowen v. Ferne,^[3] it was held, that a variance between the summons

(a) (a) Sees. 41, ch. 94.

(b) (b) 9 John. Rep. 366 .

p. 112

and declaration, as to the form of action, (the one being in (respagSj an£} pne other trespass on the case) was mere matter of form. The variance; in this case, is much less material, and is not, therefore, a sufficient ground for reversing the judgment. Nor is there any validity in the other objection. The jurors did not take liquor while they were sitting as a jury. It was during the two hours suspension of proceedings, which distinguishes this case from that of Kellogg v. Wilder.^[4] It does not appear that they drank to excess, or that the liquor was furnished by one party more than the other. The judgment must, therefore, be affirmed, as to the damages. But the Justice having included, in the" judgment, the costs of an adjournment procured by the defendant, it must be reversed as to the costs.

Judgment accordingly.

(d) (d) 455^”*