2 Doug. 374 | Mich. | 1846
delivered the opinion. Upon examination of the transcript returned into this court, it appears that, on the 26th of November, 1841, Ward entered a complaint before tho justices, alleging that Henry A. Caswell holds over and unlawfully detains from him, the said Samuel Ward, certain premises, which are particularly described, and requested the justices to issue a writ against Caswell, for the trial of the right of possession thereof. A summons was accordingly issued, and made returnable on the 2d day of December following. Upon the return day the parties appeared when the complainant filed a declaration stating, substantially, that Caswell “unlawfully detained” from him, the premises described in the complaint; to which the defendant below plead the general issue, and gave notice that the title to land would come in question; and thereupon tendered a bond which the justices refused to receive. Caswell then applied for a continuance of the cause for ten days, and supported his application by an affidavit. The application, also, was refused by the justices, upon the grounds, 1st. That the defendant did not state that he had a good defence to the action; 2d. Nor what he expected to prove; 3d. Nor that the application was not made for delay merely, and that justice might be had in the case; 4th. For that no diligence appeared to have been used to obtain the attendance of the witnesses. The parties then proceeded to trial, and the plaintiff offered in evidence a paper purporting to be a copy of a demand made upon Caswell to deliver up the possession of the premises to Ward. This notice is dated and was served on Caswell, on the 15th November, 1841. by Reuben Warner, a constable, who was sworn, and testified that
The plaintiff in error insists that, for various reasons, the judgment below should be reversed. Those upon which reliance is principally had, however, are, 1st. That the justices should have granted a continuance of the cause; and 2d. That the proof was-insufficient to entitle the plaintiff to recover. I will consider these questions in the order in which they are stated.
1. It is contended by the defendant in error, that the justices had no power to continue the cause, and this proposition is sustained by an adjudged case reported in 8 Cow. 13. It is a sufficient answer to say, that this decision was expressly overruled by this court in the case of Disbrow v. Gillett, and we see no reason for reconsidering that decision. The general rule relied upon by the counsel for the defendant in error, and by the supreme court of New York, that justices of the peace are confined to the powers and jurisdiction expressly conferred by statute,días, I think, no application to the present question. There is an obvious distinction between the case where courts of limited and special jurisdiction assume to take cognizance of a subject matter not expressly coming within the scope of the law by which they are created, and which bounds theirpowers, and the case where the subject matter is clearly within their jurisdiction, and resort is simply had to the practice of other courts to enable them to exercise that jurisdiction. Keeping in. view this distinction, is it not clear that the right to continue, is an incident to the power to hear and determine causes like that under consideration ? If not, it is certain that the grossest injustice might be done. Did, then, the justices exercise a proper discretion in overruling the motion to continue? I think they did not. The facts to be proved by the witness were material to the issue, and the motion was made on the return day of the process, and at the time the issue was made up. Under these circumstances, it appears to me that the court below should have granted the motion.
2. It is also insisted upon by the plaintiff in error, that the evidence did not sup»
Thejudgment below must be reversed with costs.
Judgment reversed.