Bowditch v. Salisbury — 9 Johns. 366

Majority

p. 366

Bowditch against Salisbury.

NEW YORK,

Oct. 1812.

Headnote

Where aplaintiff 6be fore a justice, balance of a andk ai°o°Ufor the settlement of four several notes detained the^amount of 25 dollars, it though the ceeded?nealarsUyet°asthe plaintiff claimed only 25 dollars damaIce had ju“is* Where de fendant is sTwafrant^nd between°‘the parties, the on therequest of the defendant, under the first section of the act, adourn the cause for one day, or for a less time than three days.

ERROR, on certiorari, from a justice’s court. Salisbury sued Bowditch, before the justice, by warrant.! The plaintiff delivered no written declaration; but stated to the justice that he <Ja™ed a certain book account, and also for a settlement of four several notes which the defendant had received from him to col- ..... . . lect; and that his principal object m the action was a settlement of notes, which the defendant detained against good faith; and laid his damages at 25 dollars.

The defendant pleaded non assumpsit, and a set-off of certain notes. By the request of the defendant, the cause was adjourned to the next day. There was a trial by jury, who found a verdict ^or the plaintiff, for 19 dollars and 20 cents.

The evidence given at the trial was not stated in the justice’s return»

The plaintiff in error objected, 1. That the declaration of the P^™1^ below was bad, as it did not distinctly and specifically state the nature and amount of his demand; 2. That the amount of the notes exceeded the sum for which the justice had jurisdiction, and that justice or jury had no power to go into an examination, ancl decide on all demands between the plaintiffs ; 3. That the justice had no right to adjourn the cause for a shorter time than •, three days.

The objections taken to the justice~s return are uutenah1e~ The declaration was not in writing; but from the statement of the plaintiff's demand, it appeared to be founded on an unsettled book account, and upon certain notes which the deiendant had received to collect. Although the nominal amount of the notes was beyond the justice’s jurisdiction, yet the plaintiff claimed only 25 dollars; and he might relinquish all beyond that sum, which he must be presumed to have done, by demanding only 25 dollars. The adjournment by the justice for one day was legal, under the first section of the act. The defendant did not require a longer adjournment, or bring himself within the 2d section of the act. The justice does not profess to return all the evidence. The court cannot, therefore, upon the merits, determine whether or not justice has been done. If any thing, not appearing on the return, took place upon the trial, of which the plaintiff in error complains, he should have procured a more complete return.

Judgment affirmed.