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Clayton v. Per Dun

13 Johns. 218 Court N.Y. Sup. Ct. English

Contents

Majority

p. 218
Clayton against Per Dun.

Headnote

A justice'- óf uie fqc(,%ee<ps’áta«a «ave.non-•«MM for that purpose, ¡B die-qualified from
Seethe wsb„jj Sra'ír aft?? •keepingtaverta
g(™gpeitontr?ai rase^coufer'ju? the justice. 9D
INERROR, on certiorari toa justice^,court;
It appeared that,' after issuing the warrant,, arid before the day of trial, in this cause, the justice removed with his family .. •> . . . • , • • , ' mto a house which had been occupied ás a tavern, under an ' x agreement with the forpier occupant, that he,,.me justice, might “continue the tavern in the said house, until the license could ^e renewed.” -The cause.was tried.in that house a few days after the justice had taken possession of it. The tavern sign °f former occupant was still-kept up,,.and travellers called as usual, and drank spirituous liquors, and. paid for them ; but the justice returned, that,he did not-consider himself as keeping a tavern. Judgment was given for the now defendant, who was defendant in the court below. -

The evidence clearly shows, that the justice kept a tavern in fact; aqd whether he had, or had not,, a license for. that purpose, he Was equally disqualified for trying causes as a justice.- Nof is It material .that the suit was instituted before he became, so disqualified;. nor would it cure the defect if .the, plaintiff below did áppéar and consent, to the trial, becaiise such consent .could not confer jurisdictioft. Low v. Rice,, ( 8 Johns. Rep. 409 .,) on the-two; last points, is.decisive.

The. judgment must, be reversed*