author: Judge Ikvin

text:
    AUGUSTUS A. BIRD, pl’ff in error, vs. HENRY FAKE and LESTER H. COTTON, def'ts in error,

    | Error to Milwaukee county.
    The sixth and seventh sections of the statute of Michigan to regulate taverns, approved 23d April, 1833, which prohibited the trusting of any person except travellers or lodgers, for drink or other tavern expenses over §1 25, and made void any note or other security for the same, affected the remedy only, and being repealed, such prohibited charges made while it was in force, may no w bo sued for and recovered.
    The prohibitions of that act did not vest any right in the party trusted, within the saving clause of the repealing statute.
    A dormant partner need not be joined with his co-partners in an action to recover the partnership demands; and the fact that the defendantknew him to bo a partner does not alter the case; to make it necessary that he should be joined, the defendant must have known the dormant partner as such in the transaction which is the subject matter of the suit.
    Otic partner cannot bind another in the transfer of accounts, and the settlement of the business of the firm, as between the partners, without his consent; to make such transfer or settlement binding as between the partners, they must all consent to it.
    A writ of attachment was sued out in the Milwaukee District Court, in the name of Henry Fake, against Bird, in December, 1840. There appear to have been no steps taken in this proceeding, as between the original parties, after the levy and return of the writ.
    In October, 1841, Fake & Cotton filed their declaration in assumpsit against Bird, under Fake’s attachment. Accompanying the declaration was a bill of particulars of charges by the plaintiffs as keepers of the American Hotel at Madison, against the defendant, a large portion of which was for liquors and tavern expenses, the last item of which account was dated-SOth August, 1839. Bird pleaded the general issue to this declaration, and gave notice of set-off, and that tho amount of the plaintiffs’ demand had been paid and applied by the defendant, at their request, upon the discharge of a debt owing by the plaintiffs for rent of the American Hotel. An objection was raised on the trial to the non-joinder of James Morrison as a co-plaintiff.
    The deposition of Morrison had been taken in the cause, and was read upon tho trial in tho court below; which, after proving a written agreement between him, as the owner of the American Hotel, and Fake & Cotton, which is embodied in the opinion of the court, proved further: that Fake presented to him an account due from Bird to tho American Hotel while it was kept by Fake & Cotton, under said agreement, amounting to ‡255 15, being the balance due from Bird as stated by Fake, which amount deponent assumed as part payment of his share of the profits of the house, and credited Fake & Cotton with their proportion of said account at their request, and charged the same to Bird. It was the understanding that by this arrangement Bird was released from all claims of Fake & Cotton. This arrangement was made on 30th or 31st August, 1839. Bird’s account was charged in deponent’s book and posted in his ledger. Fake & Cotton were in no other business than keeping tho hotel, while the account accrued, to his knowledge. At tho time of the arrangement, deponent told Fake that if Bird acknowledged the account to be correct, he would receive it in payment of his proportion in part of the profits of said house. lie afterwards saw Bird, who said it was correct, and deponent agreed to receive it as payment from Fake, as above stated. The account is charged against him in Fake & Cotton’s books. Bird and deponent have an unsettled account, and Bird has put property in his hands to securo that and all other debts. Tho above transfer was agreed upon between Fake and deponent, but they did not effect a full settlement of other matters in relation lo tho American Hotel. There has never been any difficulty between deponent and Fake & Cotton in relation to the transferor Bird’s account.
    It was also proven on the trial, that the plaintiffs below kept She American Hofei under file name and firm of Fake & Cotto'n; that they so advertised, made and paid their bills, áse. That Morrison lived thirty miles from Madison, and did not take any activo part in the business of tho hotel; and that the account against Bird was correct for the balance of $235 15.
    After the evidence was closod, the court charged the jury:
    “Tho objection to the writ in this casecar.not defeat the action at this stage. The declaration was filed by both plaintiffs confor-mably to tho affidavit for the writ, to which the defendant pleaded the general issue. The causo is regularly at issue between the plaintiffs, Fake & Cotton, and tho defendant.”
    “The statute of Michigan, forbidding the collection of tavern bills, is a statute affecting the remedy, and being repealed, does not now operate against the plaintiff’s recovery.”
    “ It probably would not have boon improper to include the name of James Morrison, but it was not necessary, and the action is well brought without it. A defendant is not obliged to plead in abatement the non-joinder of a partner who ought to have been made a co-plaintiff, but may take advantage of it on the plea of general issue. But it must appear affirmatively that such partner was an acting partner, for if ho was merely a dormant partner, ho need not be joined. An actual, without an apparent interest in the profits of a concern, constitutes a dormant partner.”
    “ Tho several members of a firm cannot transfer to one of them their apparent interest in a joint debt so as to enable him to sue and recover it in his own name. The original relation of debtor and creditor cannot ho changed without the consent of the debtor. If this were a transfer of this account by the plaintiffs to Morrison, without the consent of the defendant, Morrison would have io sue in the name-of the partners, which a judgment in this case in favor of Bird would defeat. It might be competent for Morrison to collect and receive this debt, but it does not appear that it has been actually paid by Bird. Then, as it has not been paid by Bird, and there is no allegation that Lester II. Cotton, one of the plaintiffs, ever consented to, or engaged in the aliedged arrangement between Fake and Morrison, the plaintiffs’ recovery in this action, cannot thereby bo defeated.”
    The defendant asked the court to instruct the jury: “ That Lester H. Cotton is bound in this matter by the act of Fake, they being co-partners.” To which the Judge replied, and charged the jury: “ Cotton in this matter, is not bound by the act of Fake,, without his consent.”
    Thedefcndant also asked the court to instruct the jury: “ Thai if the debt to Fako <& Cotton has been paid at their request, and has been credited by Morrison, to them, then the plaintiffs cannot recover.” To which the Judge replied, and charged thojury:
    “ This is a debt to the whole firm, and if paid in any way by defendant, the plaintiffs cannot recover.”
    The jury returned a verdict in favor of the plaintiffs, upon which the court rendered judgment.
    Exceptions were taken to the various decisions of the court in the progress of the trial, and Bird has prosecuted this writ of error to reverse the judgment of the court below.
    AitNonD, for plaintiff in. error:
    The charge of the Judge to the jury, in relation to the tavern expenses charged in the plaintiffs’ bill of particulars, is not consistent with sound principles of law. The fair construction of the statute of Michigan, in force at the time, will make such sales and charges void, ah initio. The sixth section of the act, (Laws of Michigan 126,) prohibits the trusting for such charges, and declares that the tavern keeper shall lose the debt, and be incapable of suing for it.. The seventh section makes void any note or other security taken for such charges, and affixes a penalty for taking it. The policy of the law, and the manner in which it is framed, show that it was the intention of the legislature to make all such contracts absolutely void; and a contract that is void at the time, under a prohibitory penal statute, cannot be made valid by a subsequent repeal of the statute, and no promise afterwards made to pay it is binding.
    The court erred in instructing the jury that the action was well brought without joining Morrison as a co-plaintiff. We admit, that a dormant partner, not known at the time or dealt with as such, need not be joined. 3 Cowen 84. 4 Cowen, 717. But if the dealing was with a dormant partner, known to bo one of the firm, he should be joined; 2 Whart. Dig. 323. This account was due to the American Hotel company which was composed of Morrison, Cotton and Fake. Bird knew them to be partners, for ho signed the agreement, and he dealt with them as such. From his knowledge, and dealings, Morrison was not, as to him, a dormant partner. See 4 Watts, 455,456. Whether Morrison was an active Oí a dormant partner, was a question of fact for the jury alone to decide. The court below decided the fact, and took the question from the jury by the instructions given.
    Again, the court assumed a matter of fact, in charging the jury that it aid not appear that the debt had been paid by Bird. It is error, for the court to assume a matter of fact to be true, that can. only be ascertained by the verdict of a jury.
    The instructions of the court that Cotton should have consented to any arrangement to settle the account in order to bind him, and that he was not bound by the act of Fake, were not according to the principles of law. One partner has power to bind the firm in matters relating to the partnership property and the settlement of partnership debts. 3 Kent’s Com, 20, 21,22, 24, 25. 4 Bin-ney, 375. And a release from one partner of a debt due the firm will bind all the co-partners. 3 Kent, 24. 14 John. Rep. 387. 3 John. Rep. 68. 17 John. Rep. 58. In this case, Cotton & Fake, asoné party, contracted with Morrison, and were jointly bound to him. They were, themselves, co-partners, as to Morrison, and Fake was acting for himself and Cotton in settling the business with Morrison. The arrangement was for Cotton’s benefit, and independently of the power to bind him, his consent ought to have been presumed; at least the question ought to have been left to the jury for them to decide. _
    Tweedy, for defendant in error:
    This cause is more deceptive in understanding the facts, than in their application. The business was done in the name of Fake & Cotton; the account was made out in their names, and the balance was admitted by the defendant to be due. The account was duly proven on the trial, and the first ground of defence taken is, that a large part of the account is for liquors and tavern expenses, prohibited by law when the charges were made. This law does not say that the tavern keeper shall not sell, but that if he does sell on credit, he shall not recover. The statute simply withholds the remedy in such case, and now that it is repealed, the remedy is restored. The articles furnished were sufficient to impose a moral obligation to pay for them, and this is a good consideration for a promise; and Bird has acknowledged the balance of the account sued for to be just, long since the repeal.
    The principal question to be determined is, whether the suit is properly brought without joining Morrison as a co-plaintiff. We consider the law to be settled, that in case of a dormant partner tho active partners may or may not join him, at their own option, Collyer on Part. 394. Tho law is thus laid down, that if the dormant partner is a party to the particular contract, then he must he joined, because in such case be is an actual party, as well as a party in interest. It is admitted that Bird knew Morrison to bo a partner, but that does not alter the case, for tho contract was not made with him, hut with the active partners, and Morrison being dormant, it was not necessary to join him. 2 Whart. Dig. 323i 4 Watts, 335. 4 Cowen,?17. 3 Cowon, 84. 4 Wendell,408. 1 Chitty’s Plead. 13. 2 Vermont Hep. 65. 3 Greenlcaf, 394. 3 Law Library, 39.
    The plaintiifs having proven their demand, it became incumbent on the defendant to prove that it was paid. No arrangement between Morrison and Fake in relation to tho debt would amount to payment; nothing but actual payment would extinguish the demand. If Bird and Cotton had boon both present, and assented to the transfer, and Bird had have made a now promise, it might have boon sufficient. But such an arrangement as was made could not extinguish the debt. Cotton was no party to it, and although ono partner can collect a debt due the firm, yet he cannot release or remit it, especially if ho bo a dormant partner. It is said that one partner can hind another. This is true as a general principle, but it does not apply to the arrangement of the business of the firm between the partners. In this case, the arrangement was made by Fake in Cotton’s absence, and Cotton cannot bo bound by it; 9 Cowen, 639. Tho partners were settling business between themselves, and not doing business with the world. The arrangement itself did not amount to payment,and the charge of the court was right according to tho law.
    Wells in reply:
    The portion of tho account that is for tavern expenses, was void, and not merely voidable, by the law when it was created. If void, the bare repeal of the law since cannot make it valid. It was not intended that the repealing act should have any such effect in this or any other case, for it saves the rights of all persons as they existed under the laws repealed. Slat. Wis. 470.
    It is said that Morrison was a dormant partner, and that he need not to have boonjohiod in the action. They wore all known to Bird as partners, and he dealt with them as such throughout tho partnership. But whether he was a dormant partner or not, and if so, whether the facts in the transaction were such as to make it necessary to join him in the action, and whether Bird had paid the debt, were all questions of fact for the jury to ascertain. But the court, in its charges, decided these facts for the jury, and left them nothing to do but return a verdict for the plaintiffs in obedience to the instructions.
   Judge Ikvin

delivered the opinion of the Courts

This cause which was tried and decided in the District Court of Milwaukee, came up on error, as set forth and complained of, in exceptions taken to the several decisions ar.d directions of the court to the jury,both in its general charge and specialinstructions asked for. When instructions to the jury are asked for upon a particular point of law, as connected with the case generally, or upon the law, connected with a particular point in the evidence, and exceptions to the instructions given are taken, the inquiry of the appellate or court of error, is generally confined to the particular and more circumscribed matter thus presented; but when the exception is taken to matter of the general charge of the court to the jury, as well as particular instructions asked for, the inquiry in the appellate court necessarily becomes more extended, and sometimes apparently diffuse, as the general charge rests upon the views taken of (he whole case, as presented.

The first exception taken in the court below, is in this court abandoned, so far as the writ is concerned, and will not, therefore, be considered in that particular-.

By a provision of the statute of the Territory, when a creditor sues out a process of attachment against his debtor, any other creditor of said defendant may, at or before the second term of the court after the return of said process served, file his declaration, and proceed therein to judgment as in other cases. This appears to bo a case of that kind, and in which the defendants in error seek to recover of the plaintiff in error the amount of a bill of particulars through the medium of a declaration in assumpsit, to which the defendant pleaded the general issue.

In the progress of the trial, it appears that Fake & Cotton were the keepers of a hotel at Madison, called the American Hotel, and as such keepers sold and furnished to Augustus A. Bird, the items mentioned in said bill of particulars, among which wore charges for spirituous liquors, which account of items commenced on the 30th of November, 1838, and terminated on the 30th of August, 1839. Up to the 4th of July, 1839, the laws of Michigan were in force in this Territory, when they ceased by repeal. In this case, Bird, the plaintiff in error, relied for a part of his de-fence on the sixth and seventh sections of an act to regulate taverns.” See Laws of Michigan, page 126, revision of 1838. As further defence in the court below, Bird, the plaintiff in error, introduced an agreement purporting to be made and entered into by James Morrison, of the first part, and L. H. Cotton and Henry Fake, of the second part, which was signed and scaled by L. II. Cotton and Henry Fake, and James Morrison by A. A. Bird, by which the American Hotel was leased to Cotton and Fake, and which regulated and disposed of the profits arising from said hotel, between the said Morrison, the lessor, and the skid Cotton & Fake, the lessees. This was introduced for tho purpose, 1st, of showing that Morrison was a partner in the keeping of said hotel, and should have been joined in the action; and 2d, that his acts as such partner, bound the firm keeping tho American Hotel.

The sixth section of the law of Michigan above referred to, is as follows: “If any tavern keeper shall trust any person other than travellers, above the sum of one dollar and twenty-five cents, for any sort of strong or spirituous liquors, or tavern expenses, he shall lose every such debt, and be incapable of suing for the same, or any part thereof, and if any such tavern keeper shall sue therefor, the person may plead this act in bar, or give it in evidence under the general issue, and if the plaintiff shall become non-suited, or a judgment shall be given for the defendant, every such plaintiff shall pay double costs.”

The seventh section makes void all securities taken upon such trusting, and among other things makes an exception in favor of the tavern keeper in the case of lodgers and travellers.

The agreement referred to is as follows: “An agreement made 'and entered into at Madison, this 21st day of November, A D. 1838, between James Morrison of the county of Iowa and Territory of Wisconsin, party of Lhe first part, and L. II. Cotton and Henry Fake, of the town of Madison, county of Dane, and Territory aforesaid, party of the second part, witnessed!: That the said Morrison, party of the first part, for himsplf, hiSj heirs and assigns, doth hereby agree to furnish the house now known as the American Hotel, in Madison, in a suitable manner for the accommodation of guests, and will also furnish one laboring man to cut firewood for said house, and doth hereby lease the same to the above named party of the second part, they comply-, ing with the following conditions, to wit: the said party of the second part, for themselves, their heirs and assigns, agree to take the above mentioned house on a lease of one year from the date of this article, after having been furnished as above described, and will furnish all necessary help and keep the same in as good a manner as possible, and at the expiration of each three months during the term of said lease, will divide the nett profits that may accrue equally with the said party of the first part, and return the furniture in as good order as when taken, excepting the natural wear and tear thereof ; and the said party of the second part furthermore agrees to pay one-half of whatever the cost may be of insuring the furniture againstloss and damage by fire, the same to be insured as soon as possible. And it is further understood, that each party is to be at half the expense of furnishing provisions, liquors, and all necessary eatables for1 said house.” And which is signed and sealed, as before noticed, and witnessed by two witnesses.

It further appears from the testimony returned with the exceptions taken in the cause, that some time in the summer .of 1839, Fake and Morrison attempted a settlement of the matters arising out of the keeping of the said hotel, when Fake proposed that Morrison should take the account charged against Bird, which was then declined; nor does it appear that the parties, Fake and Morrison, ever liad another interview about it. Morrison, in his deposition herein taken, says: “I afterwards saw Mr. Bird, who said, (in allusion to the account against him,) it was correct, and I agreed to receive it as a payment from Mr. Fake, as above stated;” but with whom he agreed does not appear. Thus stand the prominent matters in this case, to the understanding of which a statement is made necessary from the dusultory and unsatisfactory manner in which the exceptions wore taken below, exceptions in most part taken to the general charge of the court to the jury, which we are bound to presume was given from a full view of the whole case.

The errors are assigned merely by reference to the exceptions in their numerical order.

The second exception is to this charge of the court: “The statute of Michigan forbidding the collection of tavern bills, is a statute affecting the remedy, and being repealed, does not operate against the plaintiff’s recovery.” In the examination of that statute, which has already been recited, the prohibitions therein contained arc not directed against the actof selling,butof collecting. The right to sell, to any extent, the articles therein mentioned, cannot be questioned, so that it be done for cash, and not trusted, for it says, “ if any tavern keeper shall trust any person,” &c. The right to sell, therefore, cannot be doubted, and the only prohibition being upon the collection, it becomes clearly a matter that relates to the remedy, and the statute being since repealed, and before the commencement of this suit, the inhibition upon the remedy was removed with the repeal. At the time of the repeal spoken of, it was done under a regular revision of the laws, and was accompanied by this general provision which is found in the fourth section of the act, page 407 of the Statutes of Wisconsin, and is in these words: “The repeal of any statutory provision by this act, shall not affect any act done or right accrued or established, or any proceeding, suit, or prosecution had or commenced previous to the time when such repeal shall take effect,” &c. The prohibition upon the remedy was not such a right accrued or established as was contemplated by the act, nor was it a vested right. The court did not, therefore, err in the instruction given.

The third instruction excepted to, is this: “It probably would not have been improper to include the name of James Morrison, but it was not nocessaiy, and the action was well brought without it. A defendant is not obliged to plead ii abatement the non-joinder of a partner who ought to have been a co-plaintiff, but may take advantage of it on the general issue; but it must appear affirmatively that such partner was an acting partner, for if he was merely a dormant partner, he need not be joined. An actual, without an apparent, interest in the profits of a concern, constitutes a dormant partnership.”

It is a principle of law well settled, that a dormant partner, (and the court are satisfied from the evidence that Morrison is nothing more.) need not be joined with the active partners in a suit. 8 S. & R. 55; Morse vs. Chase, 4 Watts, 456. And the fact, that Bird personally know Morrison to be a partner (the fact of partnership being conceded) nothing militates against the principle that a dormant partner need not be joined; for the true distinction we take to be this: that the defendant must know the dormant partner in the transaction which is matter of litigation; that is the knowledge which the law requires in order to make an exception to the general rule; 3 Cowen’s Rep. 34. 1 Chitty’s Plead. 7, 3. 2 Esp. Rep. 468; and 2 Taunt. 324, 326. In this the court did not err.

The fourth exception is to this charge of the court: “The several members of a firm cannot transfer to one of them their separate interests in ajoint debt, so as to enable him to sue and recover it in his own name. The original relation of debtor and creditor cannot be changed without the consent of the debtor. If this were a transfer of this account by the plaintiff to Morrison, without the consent of the defendant, Morrison would have to sue in the name of the partners, which a judgment in this case in favor of Bird would defeat. It might be competent for Morrison to collect and receive this debt, but it does not appear that it has been actually paid by Bird. Then,as it has not been paid by Bird, and as there is no allegation that Lester H. Cotton, one of the plaintiffs, ever consented to, or engaged in the alledged arrangement between Fake and Morrison, the plaintiff’s recovery in this action cannot thereby be defeated.”

The correctness of the instruction here given, is recognized in the case of Morback vs. Huey, 4 Watts’ Rep. 455; in Bun vs. Morris, 1 Caine’s Rep. 54; and indeed it is so clearly recognized in all the authorities, that we do not think it admits of a doubt. In the instruction there is no error.

Thus far, the exceptions were taken to the general charge of the court to the jury. The fifth charge excepted to was upon instructions asked for by the defendant in these words: “That Lester H. Cotton is bound in this matter by the act of Fake, being co-partners;” to which the court replied and charged the jury: “ Cotton, in this matter, is not bound by the act of Fake, without his consent.” That one partner may bind his co-partner in transactions relating to the business of co-partnership, with third persons, is a principle coeval with partnership itself ; and it is equally clear that no arrangement about the partnership business as between themselves, by some of the members of a firm, can bind those who do not concur therein. Were it otherwise, it would, at any time, be in the power of one partner of a firm to ruin the balance.

Arnold and Wells, for plaintiff in error.

Tweedy, for defendants in error.

The sixth, and remaining instruction asked for by the defendant, and excepted to as given, is this: “That if the debt to Fake & Cotton has been paid at their request, and has been credited by Morrison to them, then the plaintiff cannot recover.” To which the Judge replied: “This is a debt to the whole firm, and if paid in any way by defendant, tho plaintiffs cannot recover.”

This we consider a self-evident proposition, and no error.

We cannot see, under a careful examination of the whole case, that the District Court committed any error in any'of the charges or instructions or opinions given. The judgment of the District Court is therefore affirmed with costs.


source: Caselaw Access Project

author: Judge Milleh:

license: Public Domain

text:
    BERRY HANEY, plaintiff in error, vs. SATTERLEE CLARK and HENRY JONES, defendants in error,

    | Error to Dane county.

    The Supremo Court will not notice any errors in the proceedings of the court bolow, unless they arc properly presented in the record of the case.
    The court will not consider any paper as a part of the record which is not made so by tho pleadings, or some opinion of the court referring to it, or by a bill of exceptions taken in tho cause; and it makes no difference that the paper is certified up by the cleric.
    A motion made in the progross of a causo in the court below, and the reasons and affidavits upon which it is founded, aro no part of the record, unless made so by a bill of exceptions.
    Clark and Jones brought suit against Henry before a justice of the peace of Dane county. Haney failed to appear and was de* faulted, aud the justice, upon proofs, rendered a judgment in favor of tho plaintiffs. Haney, within six days after, appealed to the Dane District Court, and there moved the court for leave to file his set-off against tho plaintiff’s demand, which was refusedby the court; and upon the trial judgment was rendered in favor of the plaintiffs.

      Haney sued out a writ of error to reverse the judgment of the District Court, and has assigned for error, the refusal of the court to allow him to file his set-offon the motion made for that purpose. CiARK, for plaintiff in error:
    The District Court ought to have allowed the defence to be made under the circumstances of the case. The statute on the subject of appeals from justices of the peace, directs that the issue in the District Court shall be the same as before the justice, unless the court shall otherwise direct. It is in the discretion of the ■court to allow a different issue, but this is a sound legal discretion to be properly exercised. The same statute gives a defendant who is defaulted before a justice the right of appeal. The whole spirit of the law, contemplates a trial on the merits; but if the party defaulted, cannot make an issue in the District Court, the right of appeal is a naked right without any possible benefit, and the provisions of the law are wholly illusory.
    We contend that the court was bound to allow the amendment to be made. The principle, was so decided in Illinois under a similar statute; 1 Scammon, 137; and so also in Pennsylvania, 1 ¡Rawle, 370.
    Field, for defendants in error:
    There is no error in the record of this case. The motion and affidavit in support of if, are no part of the record, unless made so by a bill of exceptions, and this Court cannot notice them in any way. This is the established doctrine and practice of the courts. Vanlandingham, vs. Fellows and others, 1 Scammon, 333; Hinton vs. Brown, 1 Black ford,-429; Henderson vs. Reed, id. 347; Cole vs. Dr isle ell, id,. 18; Goldsborough vs. May, 1 Litteil, 254; 4 Randolph, 189, In this case there was no bill of exceptions taken, and the court cannot pass upon the matters assigned as error. The sending up or certifying of papers by the clerk, or incorporating them in the transcript, can make no difference, for the clerk has no power to make records for the court.
   Opinion of the Court,by

Judge Milleh:

This suit was commenced by Satterlee Clark and Henry Jones against Berry Haney, before a justice of the peace, where, in the absence of the defendant, on the return day of the writ, judgment Was rendered for the, plaintiffs; from which the defendant appealed to the District Court of Dane county; where he moved the court for leave to file his set-off to the plaintiff’s demand, which was overruled by the court, and this is the error assigned.

The counsel for the defendant below, and plaintiff in error, neglected to have his motion with his proposed set-off embodied in a bill of exceptions; and contented himself with coming here with a mere certified transcript of the records of the District Court. — ■ The counsel of the defendants in error refused to argue or consider the error assigned, for the reason that the cause is not properly in this court, as the motion of the party is not a part of the reebrd, but can only he made so by a bill of exceptions, stating the motion, and the nature of the off-set proposed.

The question is thus presented: is ibis motion a pari of the■ record which this court will examine as such? In cases at common law, the course of the Supreme Court of the United States is not to consider any paper part of the record which is not made so by the pleadings, or by some opinion of the court referring to it. This rule is common to all the courts exorcising appellate jurisdiction according to the course of the common law. The preliminary question is, whether the matter exists on the record?— Lessee of Fisher vs. Cockwill, 5 Peters, 248. The appellate court cannot-know what evidence was given to the jury, unlessit is Spread on the record in proper legal manner; Gratz vs. Gratz, 4 Rawle, 411. The unauthorized certificate of the clerk, that any document was read, or any evidence given to the jury, cannot make that document, or that 'evidence, a part of the record, so as to bring it to the cognizance of the appellate court. Upon the same principle, the court of appeals of Kentucky decided, in the case of Ashley vs. Sharp, 1 Littell, 166, that where the grounds assigned in the record, are the exclusion of evidence, or of title papers on the former trial, the bill of exceptions ought to exhibit the evidence or title papers excluded. Upon the samo principle, it was decided by the Supremo Court of Illinois, Vanlandingham vs. Fellows, 1 Scam. 233, that the reasons filed by a party as the foundation for a motion in the Circuit Court, do not thereby become a part of the record. To make them a part of the record, they must be embodied in a bill of exceptions. And because they were not so made a part of the record, the court refused to take any notice of them. In Indiana, evidencej whether written or parol, can only be made part of record, by oyer, bill of exceptions, demurrer to evidence, especial verdict, or consent of parties; Cole vs. Driskell, 1 Black, 16. The same court decided in the case of Shields and Wife vs. Cunningham, I Black, 36, that a capias ad respondendum, is not part of the record, unless made in some legitimate method; and the circumstance of its being certified up by tiie clerk, can add nothing to its validity. In the case under consideration, a copy of the off-set offered to be filed in the District Court, is not even certified up by the clerk.— There is no error apparent on the record, and the judgment of the District Conrt must therefore be affirmed. The error complained of is not properly presented, and for this reason the court will not notice it. The People vs. Dalton, 15 Wendell, 581.

CiARK, for pl’tff in error.

Fseld, for def’is in error;


author: Judge 'Irvin:

text:
    ROBERT BRYANT, pl'ff in error, vs. GEORGE BARBER, def’t in error,
    > Error to Milwaukee county.

    When a party appeals from the judgment of a justice of the peace, he must have an entry of his appeal made in the District Court on or before the second day of the next term after the appeal is taken; and if the justice fails to send up the papers as required by law, he must within that time take a rule against him to make return: If the appellant neglects to take the neccssaryste.ps to get Ills appeal before the court until after the second day of the term, he cannot have it entered on a subsequent day, and the right accrues to the appellee to have the cause entered and judgment rendered in his favor upon the judgment of the justice.
    Barber obtained a judgment against Bryant before a justice of the peace of Milwaukee county, from which Bryant appealed on the 12th February, 1842. The next term of the District Court commenced on the 13th of Junej 1842, and on the 18th June, before the time of trying appeals, according to the arrangement of business in court, the justice who fried the case, handed the papers to the clerk, when the appeilant’s counsel requested the clerk to enter the cause on the docket. The clerk declined male, ing the entry,' and upon referring the matter to the Court, the Judge directed him to file the papers but not to enter the cause. On the 1st July, on motion of the appellee, the cause was entered &nd judgment rendered in his favor for the amount recovered before the justice, with interest, damages and costs, according id the statute, the appellant, by his counsel, being in court at the' time and objecting thereto and offering to go to trial.
    To reverse this judgment, Bryant sued out a writ of error and has brought the cause into this court.
    Lxnde, for pl’tff in error:
    The sixth and eighth sections of the act, upon the subject of appeals, Stat. Wis. 333, are directory and not imperative. It is made the duty of the justice to file the papers on or before the first day of the term, and until he does so; the appellant cannot have the cause entered, for there is nothing before the court to he entered. If the justice neglects his duty and delays the matter, the appellant ought not to suffer for it. The statute gives the court the power to older appeals to be entered otherwise than is therein directed. This was intended to embrace cases like the present, where the justice brings in the papers after the second day, and the appellant asks, before any motion is made by the ap-pellee, to have the appeal entered. The rigid practice that has been enforced in this case, ought only to be adopted in cases where the appellant does not appear, or take any steps to bring his appeal forward, and should-not be applied when he has been guilty of no laches and the delay has been occasioned by the neglect of the justice. In New York, it has been decided, that though the justice does not file his return until after the first day of the term next after the appeal, they ought not to quash it, but proceed thereon when the return comes in. Exparte Kellogg, 3 Cowen’s Rep. 372.
   Opinion of the Court, by

Judge 'Irvin:

This cause came up on error to the District Court of Milwaukee county.

The suit was brought before a justice of the peace to recover compensation for tho use of horses. Before the justice, defendant made no defence, but after judgment given for plaintiff, took an appeal to the District Court. The justice gave judgment on the 12th of 'February, 1842. The District Court commenced on the 13th of June, 1842, and to which court the justice made his' return the 18th of J uno, when the counsel for the appellant moved the court to have the same entered, which was not so ordered, the clerk merely marking it filed. On the first day of July of the same term, the appellee, by his counsel, moved the court to have the appeal entered, which was done, and judgment in hisfa-vor given, for the sum in which the justice had given judgment, together with interest, and twelve per centum damages,- to all •which the appellant objected.

Lvnde and Wells, for pl’tff in error.

By the 6th section of the 9th article, page 333 of the Statutes of Wisconsin, the justice is required to file, on or before the first day of the term of the District Court next after the appeal, in tjie office of the clerk of said court, a transcript of his docket, together with all the papers in the case in which the appeal is taken. By the 8th sec. the appellant shall cause an entry to be made of the appeal on or before the second day of said term, unless otherwise ordered by said court; “provided, that if the appellant shall fail or neglect to enter the appeal as aforesaid, the ap-pellee may have the same entered, at any time during that or some succeeding term, and the judgment of the court below shall be entered against the appellant for the same, with interest, and twelve per centum damages and the costs of both courts.” — . When the justice failed to make return, as the law required, the appellant might, on or before the second day of the term, have taken a rule against him to make return, upon the coming in of which, he could then have proceeded in the suit; but failing as he ■did, until the time at which the justice made Return, the right had accrued to the appellee, to have and take the judgment which he obtained at that term of the court. The District Court committed no error, and the judgment therein given must be affirmed with costs.


author: Judge Millek:

text:
    JOEL HYDE, pl’ff in error, vs. JOB BARKER, def't in error,

      l > Error to Rock county.

    After evidence lias hecn given on the pavt of the plaintiff, pertinent to the issue, the court has no power to order a peremptory non-suit against the will of tho plaintiff; and a justice of tho peace cannot, in such case, non-suit the plaintiff'although he is trying tho cause without a jury.
    Hyde brought suit against Barker before a justice of the peace in Rock county, on an account for work and labor. The plaintiff filed a written declaration in assumpsit, containing three counts. The first count was on a special contract made in August, 1841, to build a corn bain for the defendant for $24 — the work to be done by tho20lh October, 1841; tho second count was on a similar contract, the work to be done in a reasonable time; and the third was for work and labor generally. The defendant pleaded the general issue. Tho case was tried by a justice without a jury, and on tho trial the plaintiff proved that he had done a principal portion of the work on the contract, but did not prove that it was completed as ^ot out in the first count in tho declaration, and attempted to prove what tho work was worth, which was objected to by the defendant, and the objection sustained by the justice. The defendant moved for a nonsuit on the ground that a special contract had boon set up, and the plaintiff had failed to prove performance on his pavt. The plaintiff, pending the motion, asked leave to withdraw the first count in die declaration and let the evidence apply on the other counts, which the justice refused, and gave judgment of nonsuit against the plaintiff.
    The case was taken into tho District Court by certiorari, where the judgment of the justice was affirmed, and Hyde' has prosecuted this writ of error to reverse the judgment of the District Court.
    J. II. Knowlton, for plbff in error:
    The justice ought to have received evidence of the value of th c work done, under the common count, although the proof may have failed to establish a special contract, or to show performance by the plaintiff. Although there be a special contract, and the plaintiff has failed to perform it in full, or perform it so negligent-Iy that a recovery cannot be had upon it; yet if the defendant has received any benefit from it, he must pay what the work is reasonably worth. 2 Phil. By. by Gowen & Hill, 109, note 311, page 108; 2 Starkie, 945; 20 English Com. Law Rep. 126; 7 do. 401; 23 do. 105; l Comyn on Contracts, 5, 6; Hayward vs. Leonard, 7 Pick. 181; Smith vs. The First Congregational Meeting Housein Lowell, 8 Pick 173.
    Noggle, for dePt in error:
    There are cases where a plaintiff may recover for the partial performance of a specified contract: But where the contract is to do a piece of work, in a particular manner and by a given time, the plaintiff cannot recover for a partial performance, unless the defendant has waived a complete performance; 14 Mass, Rep. 238; 2 Starkie, 942 and notes.
    Whatever may be the opinion of the Court as to the errors of the justice, a judgment of non-suit ought not to be reversed. — , The plaintiff was not barred from proceeding de novo, and the casein this court, is amere question of costs.
    Whitoíí, in reply:
    If the judgment of the justice was erroneous, then the judgment of the District Court ought to be reversed. The evidence shows an acceptance of the work, and if it was not done according to the contract, the plaintiff is entitled to recover as much as it is worth. This must be the decision if the principles laid dowpin the case read from 7 Pickering are applied.
    Although the case is a small one, the principles involved are of great importance, and entitled to a deliberate consideration.
   Opinion of the Court, by

Judge Millek:

This case came before the District Court of Rock county, by certiorari to a justice of the peace. The error complained of was that the justice, after hearing the testimony on part of the plaintiff in support of the claim and pertinent to the issue, on motion of the defendant, for reasons therein stated, entered a non-suit against the plaintiff’s consent. This judgment was affirmed by the court; following in this particular, the practice in the State of Now York. That practice, we do not recognize in the District Court, and consequently, the same, if not better reasons, should prevent it before a justice. If it were tolerated, serious injustice may, in some instances be done. The Supreme Court of the United States have repeated the rule so frequently, that after per-tincnt evidence is received on part of plaintiff, the court has na authority to order a peremptory non-suit, against the will of tho plaintiff, on the trial of the cause before the jury, that the point is not now to be questioned. The plaintiff may agree to a non-suit, but if he do not choose, the Court cannot compel him to submit to it. Elmere vs. Grymes, 1 Peters, 471; Dewolf vs. Raband and others, 1 Peters, 497; Crane vs. The Lesee of Morris and others, 6 Peters, 598.

J. II. Knowt/toN and Whitow, for pl’tff in error.

Noggi/e, for def’t in error.

This case was disposed of by the justice. He was bound to the same rule, as if there had been a jury empannellod. As the evidence comes up imperfectly, it might be unsafe to risk an opinion, on the points of law attempted to be raised upon the record, and the Court, for this reason, will not attempt their consideration.

The judgment must be reversed, and so certified to the District Court of Dock county, with orders to the said district court to reverse the judgment of the justice.


author: Judge Mili.ee:

text:
    GEORGE H. COX, plaintiff in error, vs. JAMES GROSHONG, et al. defendants in error.

    | Error to Grant county.

    Tiif, statute to prevent forcible entries and detainers provides for two classes of cases; an unlawful and forcible entry and a forcible detainer, and a lawful and peaceable entry and unlawful detainer; and in proceeding under the statute, ttio complaint must state a case of one or tho other of these classes. A complaint for a forcible detainer, without alledging a forcible entry, is bad.
    Tho complaint must describe the premises with reasonable certainty; and where the complaint describes tho land as a range of lead ore and a strip or piece of land on each side running easterly and westerly across the land owned by certain persons in a particular section, it is bad for the uncertainty of description.
    Where tho complaint is defective, the defendant does not waive the objection by going to trial, but he may make it at any stage of the proceedings.

      In proceedings in forcible entry and detainer, the provisions of the sta > tute must bo strictly pursued.
    Justices’ courts are not courts of record, and do not proceed .according to the course of the common laiv, and so far as their powers arc concerned,they are confined strictly to the authority given them by statute. They can take nothing by implication, but must show that the power which they exercise is expressly given to them in every instance.
    Where a canso has been removed from one justice to another, and the parties proceed to trial without objecting to the justice to whom the case was sent, it is too late after the trial to object because he was not the nearest justice to the one before whom the cause originated.
    In April, 1842, Cox commenced a proceeding in forcible detainer against James Groshong and others, before Samuel Tompkins, a justice of the peace in Grant county. The complaint stated that' Cox was “ the owner of, and justly entitled to the possession of, the undivided one-fourth part of a certain rango of lead ore and a strip or piece of land on each side, running easterly and westerly across the land hereinafter described, and the right of searching and digging for lead ore thereon, situate on the lands now owned by James Groshong, Jonathan Craig, and said Cox, in section seventeen, township No. four nbrth, of range No. three west, in said county of Grant.” “That one James Groshong, Jefferson Gro-shong, and one Stone, did, on or about the first day of February, 1842, wrongfully, and wiihoutlawful authority, enter into and upon the said undivided one-fourth part of the said range of lead ore, and the said strip of land and the right of searching for lead ore thereon, and took possesion of the same, against the right of the complainant, and have, from thence hitherto, wrongfully, unlawfully, with force and arms, with a strong hand and multitude of people, detained the possession thereof from the said complainant.”
    Process was issued upon the complaint, and returned to the 25th April, on which day, on the application of James Groshong, one of the defendants, the case was adjourned to the 30th April. It appears that upon this application the justice first adjourned tiie cause to the 6th May, but immediately afterwards his attention was directed to the statute upon the subject, from which he considered that he had not the power to adjourn the cause for so long a time, when he recalled the parties and witnesses, and notified them that the adjournment was to the 30th April, and that not more than fifteen minutes had elapsed from the time of first fixing the adjournment.
    On the 30th April, Jefferson Groshong, one of the defendants, applied for and obtained a change of venue from before Justice Tomkins, who immediately transmitted tbo cause to Jeremiah Spencer, as the nearest justice qualified to act. Spencer was at that time, accidentally in Lancaster, where Tompkins was holding his court, but his residence was not so near as that of some other justices in the county. Spencer immediately proceeded with the trial of the cause, and empannelled the samo jury that had beers summoned before Tompkins. Before the trial commenced, the defendants filed before Justice Spencer an affidavit for a continuance, setting out, as the grounds, the absence of a material witness, who resided in Illinois: that due diligence had been used to procure him: that James Groahong was then gone for him; and that the defendants believed if an adjournment was granted for seven days the witness could be procured. The motion was overruled by the Justice, and the trial proceeded. The jury returned a verdict against the defendants, upon which the Justice rendered a judgment, and awarded a writ of restitution.
    The defendants took the case into the District Court by writ of certiorari, and assigned the following errors in the proceedings before the Justices:
    1. For want of a legal, full, and sufficient complaint in the law; a legal, full,and sufficient summons thereon.
    2. For that the said Justice Tompkins erred, when after he had, on the application of the defendants, adjourned the said action over to the 6th of May, and dismissed the jury, witnesses, and parties, in setting aside that continuance, and compelling the de„ fendants to answer on the 30lh of April.
    3. For that the said Justice Tompkins erred, when he changed the venue from before himself to Spencer, not the nearest justice to the place of holding the court of said Tompkins, or his place of residence, and when there were other justices residing sis miles nearer the said Tompkins.
    4. For that the said Justice Spencer erred, when he took cognizance of the case at the place he did, without his docket, and tried it by the same persons whom the said Tompkins had summoned to sit as jurors in the case, without issuing a new process for a jury.
    5. For that the said Justice showed himself to be a partial justice, from the manner in which he procured the case to be brought before himself on the change of venue from before said Tompkins.

      6. Fqr that the said Justice Spencer erred, in not giving the defendants a continuance on their application on affidavit filed, the said Justice admitting that the causes entitled them to a coiiiin-uance.
    7. For that the said Justice Spencer erred, in not having his docket present, and reducing his proceedings and decisions to writing.
    8. For that the jury erred in giving a verdict in favor of the plaintiff, the testimony not having supported his complaint; and the justice erred in rendering judgment on the verdict.
    9. For that the whole proceedings were illegal and void.
    It appears from the return of Justice Spencer, that this was the first case which he ever tried; that he had no docket at the time; and did not then reduce the proceedings and decisions to writing; but when he went home he took down the material parts, and made up his docket as soon as possible.
    At the March term, 1843, the District Court ievdrsed thd judgment of the justice; and the cause is brought into this court by the complainant, Cox, on writ of error to reverse the judgment oí the District Court.
    Eastman, for plaintiff in error:
    The objections that were taken to the complaint and summons are not tenable. They are formally drawn, and the complaint sets out the plaintiff’s case with legal certainty.
    The change of time in the continuance by Justice Tompkins was right and proper. The statute gives him no power to continue a cause for so long a period as was first fixed upon, and on discovering his error, within fifteen minutes, he changed it to a time within his authority, and notified the parties and witnesses of tho alteration, and no injmy resulted to any one. It was the duty of the Justice to correct the error before the parties had sepa-» rated.
    When the venue was changed, Spencer was the nearest justice in fact to Tompkins. He was in Lancaster accidentally on business, and was qualified to try the cause¡ Ajustice is not Confined to any particular district, but his authority is co-oxtensive'with the county, and he can hold his court at any place within the county. In this respect, the statute was fully complied with.
    Tompkins was bound by law to transmit all the papers in the case to Spencer, and, of course, the venirie facias and return; Spencer was bound to proceed with the cause as though it had been commenced before him; lie therefore had to take up tho case precisely where Tompkins left off, with the jury that had been summoned, lie had no right to discharge the jury.
    The minutes taken down by Justice Spencer to enable him to make.up his docket, were sufficient. The record was properly made up as soon as it could be done, and it is not vitiated because ho had not previously procured a docket and wrote the proceedings in it at length as they occurred.
    The refusal of Spencer to continue the cause cannot be regarded as error. The question was one for his discretion, and if he thought the grounds not sufficient, the court cannot set aside the proceedings for that causo; especially when it is borne in mind that this was the second application to continue the cause by tho same parties, and the record does not show any steps taken to procure the testimony of the absent witness.
    The court will find, upon examining the record, that evidence fully supports the verdict and judgment. Upon this point, tho courts require a stronger case to reverse a judgment than they would to grant a new trial; and in this case, according to authority, the court could not grant a now trial, on the ground that the verdict was against evidence. 2 Salk. 650; id. 654; id. 646, G47. Cools- vs. Berry, 1 Wilson, 93. Graham on New Trials, 10, 15, 16, 35, 168, 194, 210, 281. 3 Blackford, 305. Stephen on Plead. 147. 1 Scammon 538, 539. 2 Scammon, 129, 130.
    Dunk, for defendants in error:
    The complaint in this case is bad, because it does not sufficiently describe the premises. The description should be so certain that the officer in making restitution can know what to restore. It is also bad for not allcdging force in the entry. Tho statute does not authorize proceedings for a forcible detainer whore tho entry has been peaceable.
    After Justice Tompkins had adjourned the cause to the 6th of May, ho had no right to fix an earlier day for the trial, without the consent of the defendants. When the continuance was once made, he had no more power over the case, until the lime of trial arrived. The statute does not prohibit a justice from continuing a case, for cause shown, for a longer period than six days; it only limits him to that time when he continues it of his own volition.
    The meaning and intention of the law in changing the venue of causes before justices of the peace is, (bat the case shall be sent to the nearest resident justice, (acts of 1840,23,) and not that a remote justice who may be accidentally present shall lake up the case and dispose of it.
    It was error in Justice Spencer to empanncl the same jury that had been summoned before Justice Tompkins. Although the law requires the papers to be transferred, so as to place the cause properly before the new justice, it does not authorize the transfer of the jury. He should have appointed a time and place for the trial, and issued anew venirie facias accordingly.
    The defendants were entitled to the continuance asked for before Justice Spencer. They did not expect a trial on that day, and were not bound to be prepared for it. They appeared for the purpose of changing the venue, which they knew they had a right to do under the law, and they had a right to expect that a time and place would be fixed for the trial, of which the parties would be notified. But the affidavit shows sufficient grounds. It was not necessary to have a subpena issued for a witness who resided out of the Territory, for it could not reach him. One of the defendants was gone for the witness, and they believed that he could be produced; and this was all the diligence required by the law. 1 .Leigh, 1. ■ 4 Hen. & Mun. 157.
    It will be found that the verdict was clearly contrary to the evidence. The complainant failed to prove his claim as he set it out; and there was not a particle of evidence showing the use of any force by the defendants. Force, actual and not constructive, must be proven to sustain the complaint, 3 Bacon’s Ab. 716.
   Opinion of the Court, by

Judge Mili.ee:

This case was commenced under the act to prevent forcible entries and detainers by George II. Cox, against James Grosbong, Jefferson Groshong, and - Stone, before a justice of the peace of Grant county. A verdict and judgment were rendered against the said defendants before the Justice, which they removed to the District Court of said county, by certiorari, where the said judgment was reversed; upon which decision of the said District Court tho said Cox sued out a writ of error.

The examination of the record will require us to consider such of the exceptions filed in the District Court, to the proceedings before the Justice as may be material.

The first exception filed was to the complaint.

The complaint represents, that “ James Groshong, Jefferson Groshong, and ono Stone, whose Christian name is unknown to the complainant, did, on or about the first day of February, 1842, wrongfully and without lawful authority, enter into and upon the said range of lead oro and the said strip of land, and the right of searching and digging for lead ore thereon, and take possession of the same, against the right of the said complainant, and have, from thence hitherto, wrongfully, unlawfully, forcibly, with force and arms, with strong hand and multitude of people, detained the possession thereof from the said complainant,'and still do, wrongfully, unlawfully, forcibly, and with strong hand and force and arms, and multitude of people, keep out and detain from said complainant, the possession thereof, contrary to the statute and the laws of the said Territory, after demand of possession thereof by complainant;” and prayed that summons might issue fora forcible detainer.

By the act upon which this proceeding was founded, any justice shall have authority to inquire by a jury, as well against tboso who make unlawful and forcible entry into lands, tenements, and other possessions, and with a strong hand detain the same; as against those who, having lawful and peaceable entry into lands, tenements, and other possessions, unlawfully detain the samo. By this statute, there are two classes of cases made cognizable be. fore the justice: first, an unlawful and forcible entry and detain-er; second, a lawful and peaceable entry and an unlawful detain-er. The complaint does not come within cither class. It charges that, the defendants unlawfully, and without, authority, entered the premises, while, if it was desired to proceed for the entry, it should have charged that they unlawfully and forcibly entered. But was claimed by complainant a summons for an unlawful de-tainer merely, which comes under the second class when the entry is lawful and peaceful. From this it will appear, that this complaint did not conform to the statute, and for this alone, the District Court did right in reversing the proceedings before the Justice.

This is a proceeding authorized and regulated by statute, and committed to a tribunal whose jurisdiction and authority are created by the statute alone; for these reasons, the provisions and directions of the statute must be strictly pursued. Justices’ courts are not courts of record, and do not proceed according to the course of the common law, and so far as the powers aro concern ed, they are confined strictly to the authority given them by the Statute. They can fake nothing by implication, but must show the power which they exercise expressly given them in every instance. Thomas vs. Robinson, 3 Wend. 287. Mills vs. Martin, 19 John. 33. M'Carty vs. Shannon, 3 John. 429. Borden vs. Fitch, 15 John. 140. Andrews vs. Montgomery, 19 John. 162.

The complaint sets forth: “ that the said George H. Cox was, on the first day of January last, has been, and still is, the owner of and justly entitled to the possession of a certain range of lead ore, and a strip of land or piece on each side thereof, twenty-five yards wide on each side, running easterly and westerly across the land hereafter described, and the right of searching and digging for lead ore thereon, in section 17, township No. 4 north, of range No. 3 west, in said Grant county.” This would also appear to be too vague and uncertain. It does not describe the land by any marks, description, or boundaries, nor does it even refer to its location in the section. It is true, that a court would have a superintending power, which would always be promptly exercised, in case a plaintiff would take on a writ of restitution what be had not recovered; but it is doubtful whether a justice could exercise it. We are aware that it is impossible always to describe a tract of land with so much accuracy as to enable the sheriff to deliver it, without some person to show him, on the ground, the boundaries alluded to in the writ; but, nevertheless, the premises must be described with reasonable certainly. See, on this subject Burdick vs. Norris, 2 Watts, 28. Martin vs. Martin, 17 Sergt. & Rawle, 431. The Borough of Harrisburgh vs. Crongle, 3 W. & S. 460. Smith vs. Jenks, 10 Sergt. & Rawle, 153. Fisher vs. Lorick, 7 Sergt. & Rawle, 99.

The remaining exceptions will be disposed of together. The justice is allowed to adjourn, at his discretion, any trial under the act, not exceeding six days. This is a very summary proceeding, which requires the parties to make every effort to procure their testimony and be prepared for the trial. By the act of 18-10, section 8, authorizing the removal of causes from one justice to another, after the oath is made by the defendant, the justice shall immediately transmit all the papers in the case, to the nearest justice qualified by law to try a cause between the parties m the suit, who shall proceed to hear and determine said cause in such manner as if it originated before him. In this case, the parties made no objection to Justice Spencer. The papers were immediately tans-, mitted to him by Justice Tompkins, and the parties, without objecting to his jurisdiction, wont to trial on the same day of the removal of the causo. After this, it was too late to make the objection that he was not the nearest justice to Justice Tompkins qualified to act, if it could be made at any time.

Eastman, for plaintiff in error.

Dunn, for defendant in.error.

The trial before Justice Spencer did not waive the errors in the complaint. As we have seen that the jurisdiction of a justice must be made affirmatively to appear, there are no presumptions in its favor. It was competent- to the defendant, to raise the objections at any stage of the proceedings.

As the complaint is defective, and for this reason, the judgment of the Justice was correctly reversed by the District Court, it is unnecessary to examino the questions raised upon the evidence,

Judgment affirmed with costs.