p. 74Headnote
A constable appearing on the trial of a cause as the attorney of a plaintiff, and proving the demand declared on, is a violation of the statute prohibiting a constable from appearing and advocating for either party at the trial, although at the time there was no appearance by the defendant nor any one in his behalf.Error, from the Onondaga common pleas. Smith sued Ford in a justices’ court by summons; on the return whereof, the constable who had served the process appeared for the plaintiff and put in a declaration, to which the defendant pleaded, and issue being joined, the cause was adjourned. On the adjourned day, the constable again appeared for the plaintiff; the defendant did not appear. The constable swore that he was authorized by the plaintiff to appear for him, and also proved the note declared on, and a promise by the defendant to pay. On which evidence the justice rendered judgment in favor of the plaintiff, which judgment was affirmed, by the Onondaga common pleas on certiorari. The defendant sued out a writ of error.
Kellogg & Sandford, for plaintiff in error.
B. Davis Noxon, for defendant in error.
By the Court,
By the revised statutes, any person except infants may appear in a suit before a justice, either in person or by attorney, and such person may appoint any other person as such attorney; but. the constable who served either the original or jury process in the cause, shall not appear and advocate for either party at the trial, but may act as attorney in any other stage or proceeding in the cause.
Previous to the year 1807, constables were in the habit of acting as counsel in justices’ courts, and even justices of the peace sometimes appeared as counsel before other justices. In the case of Tallman v. Woodworth, 2 Johns. R. 385, the fact *appeared that the constable, who summoned the jury, acted as counsel and attended the jury. There was no objection to it, before the justice, and this court affirmed the judgment, saying that no form of proceeding had been violated and no abuse was shown ; but they condemned the practice of allowing a constable, who acts as an officer in the cause, to appear as attorney for either party. At the next session of the legislature it
p. 75was enacted, “ that no constable serving the original or jury process in any cause, shall be permitted to appear and advocate for either party in any such cause,” and that no justice of the peace shall be permitted to appear and advocate for any party before such court. Laws of 1808, sess. 31, ch. 204, § 26, 27. This statute received a construction in the cases of
Phinney v. Earle, and
Kittle v.
Baker, 9 Johns. R. 353 and 354. In both those cases the constable appeared for the plaintiff on the return of the summons, and put in a declaration, to which a plea was put in by the defendant, and the cause adjourned. No objection was made to the constable’s appearing. The court said there was no error ; that the constable did not “ appear and advocate.” They lay emphasis upon the fact that he did not appear
at the trial, but his appearance was confined to the mere exhibition of the plaintiff’s demand ; and this, they held, was not within the act of 1808. This provision of the act of 1808 was re-enacted in 1813 and in 1824. The revised statutes seem to embrace the former statute, with the exception made in its construction in
Phinney v.
Earle, where the court say that the constable did not appear and advocate within the meaning of the act, by merely appearing to present the note to the justice. The legislature say that the constable shall not appear and advocate for either party
at the trial, but may act as attorney in any other stage or proceeding in the catuse. It would seem, therefore, that
appearing and
advocating, means appearing as attorney at the trial. In this case, the constable appeared at the trial and proved the plaintiff’s cause of action ; this was within the meaning of the statute, appearing and advocating at the trial. The common pleas should therefore have reversed the judgment of the justice.
Judgment reversed, with single costs.