M'Neil v. Scoffield — 3 Johns. 436

Majority

p. 436

M'Neil against Scoffield.

ALBANY,

August, 1808.

Headnote

In actions before justices of the peace, the jury may decide both the law and the fact. Where a party makes no objection at the time, to the form of the plaintiff’s declaration, he cannot avail himself of any defects, which appear on the return to the certiorari. The court, as to the proceedings before justices of the peace, will look to the right and justice of the case, without regard to matters of form or technical niceties. If the plaintiff declare in assumpsit, and also for a fraud, the defendant cannot , object to the declaration on the return to the cer-, ticrarC •

ON certiorari. The plaintiff below declared against the defendant, in assumpsit, for 25 dollars, difference agreed to be paid by the defendant, on an exchange of horses between him and the plaintiff ; and also for 25 dollars, for fraud in the exchange of horses, and concluded to the damage of 25 dollars. The defendant pleaded the general issue and a set-off.

It was proved, that the defendant had confessed that he exchanged horses with the plaintiff, and was to pay a sum of money for the difference in the price ; but how much the witness did not recollect.

It was also proved, that the difference in the value of the horses was 35 dollars. The jury found a verdict for the plaintiff for 25 dollars, for which the justice gave judgment.

Skinner, for the plaintiff in error.

Z. R. Shepherd, contra.

It is objected, that a count on contract and fraud could not be joined in the same declaration* This would, no doubt, be a valid objection, on a motion in arrest of judgment here, where the court are judges of the law, and the jurors decide on the facts : But in proceedings before justices of the peace, under the act

p. 437

for the recovery of debts to the value of 25 dollars, the jury may decide both the law and the fact. Again, `where the party makes no objection to the pleadings at the time, but consents to go to trial upon them, we have repeatedly decided, that he shall not avail himself of any defects in the form of pleading, which may appear on the return to the certiorari. . This court will look to the right and justice of the case, without regard to technical niceties, or matters of form. It is further objected that the evidence did not support the declaration ; but the declaration was not on the special agreement. "

It was proved that the defendant had promised to pay the difference between the horses ■ but the precise sum was not stated. The law implies, and the court will intend, that it was the real difference in value between the two horses, which was proved to be 35 dollars.

Judgment affirmed.