Miller v. Woodworth — 3 Hill & Den. 529

Majority

p. 529

Miller vs. Woodworth.

Headnote

The statute requiring a justice, in making return to an appeal, to set forth: a copy of the defendant’s plea, if in writing, is merely directory; and hence, though the justice return the original instead of a copy, the defendant will not be prejudiced.

Error to the Oswego C„ P. Miller sued Woodworth in a justice’s court, and declared orally on the general counts in assumpsit. The plea was in writing. After judgment in favor of the plaintiff for $79,75, the defendant appealed to the C. P.; and on the trial in that court the plaintiff’s counsel objected that the defendant had no right to introduce evidence in support of his plea before the justice, inasmuch' as the original plea had been returned, instead of a copy as required by 2 R. S. 260, § 194, sub. 3. The court overruled the objection, and

p. 530

the plaintiff’s counsel excepted. Other questions arose in the course of the trial which it is not deemed important to notice. The jury found a verdict for the defendant; and, after judgment, the plaintiff sued out a writ of error.

L. Downing, for the plaintiff in error.

A. P. Grant, for the defendant in error.

The statute, (2 R. S. 260, § 194, sub. 3,) provides that, in making return to an appeal, the justice shall state “ the plea of the defendant, and the notice of set-off given by him, if any ; and if the same were in writing, a copy to be set forth.” Under this provision it is contended that the original plea attached to the justice’s return should have been disregarded by the court below. But the statute is merely directory, and no injury can result to either party by such a departure from its requirements as occurred in this case. The legislature probably supposed that justices would like to retain the original pleadings in suits pending before them, and therefore very properly provided that copies might be returned on appeal. But if a justice think proper to send an original plea to the C. P., it is sufficient for all the purposes of the trial there, and should not have the effect to prejudice the defendant’s rights. '

Judgment affirmed.