Day v. Wilber

1 Cole. & Cai. Cas. 381 | N.Y. Sup. Ct. | 1804

Lead Opinion

Kent, Ch. J.

I shall consider the causes alleged for error in the order in which they naturally/arise. 1. It is alleged that the directions of the act, commonly called the 10?. act, have not been observed, as the first process was by warrant, and not by summons. The act directs that the justice, on application under the act, shall issue a summons, or warrant, as the case may require ; that the process against freeholders and inhabitants having families, shall be by summons, unless the plaintiff shall prove on oath that he is in danger of losing his demand, of that he believes the defendant will depart the country, or unless the plaintiff be non-resident, &c. The return states, that the plaintiff below prayed process by warrant, and that ihe justice thereupon, and in pursuance of the act, issued his warrant; that the defendant was brought in on the warrant, and the plaintiff declared, and the defendant joined issue thereon, and prayed an adjournment, which was granted, and on the day to which adjourned, the parties again appeared, and then the defendant objected that the warrant did not issue in conformity to the act regulating informations. As tbe defendant, therefore, acquiesced in the process, and never objected to it because it was a warrant, and it being stated to be issued in pursuance of the act, we are to intend it was duly issued, or if not so, the irregularity was waived by the defendant. 2. It is alleged that the suit, being for a penalty given by the 16th section of the tavern act, (1 Rev. Laws, 490,) ought to have followed the directions of the act passed 6th February, 1788, to redress disorders by common informers, which requires the name of the plaintiff and the title of the act to be endorsed. Proceedings under the 101. act are to be regulated entirely by that act; and the act relative to common informers does not apply to these proceedings. The terms of it are altogether inapplicable. It supposes a process to be issued by a cleric, and says that the like process shall be awarded as in an action of trespass at common law. 3. The warrant is alleged not to state a plea, *or cause of action to which the defendant is to answer, and that it is stated that the defendant is to answer to the people, whereas the 101. act says that justices shall not have cognizance of any cause wherein the people are concerned. The defects in the warrant, whatever they may be, are cured by the general ■ plea of the defendant! He has waived all these defects since he pleaded the general issue, and afterwards made no other objection to the warrant than that it did not conform to the act relative to common informers, and which act, as I have already observed, did not, and could not, apply. We have decided, in the cases of Wool and Bevil July term, 1801, and of Young and Canada, January term, ■ 1802, that a defective venire was cured, if the party made no objection at the time, but went on to trial; and there is equal, if not stronger reason, why a like conduct should cure a defective process, the only object of which was to bring the party into court. But I consider the process as good. It states the ground of action specifically, and that the plaintiff was the complainant upon oatb, and that the defendant was to be brought in to answer to the complaint of tbe plaintiff, and does not allege that he was to answer to the people. 4. It is alleged that the declaration varies in substance from the process. The proper answer to this is, that the defendant, by not pleading that variance, but pleading in chief, has waived it, and so this court has frequently decided in like cases. But it is not true, in fact, that there is any substantial variance. The declarations only unfolds more at large the same charge, which is briefly stated "in the process, to wit, the retailing of spirituous liquors without a permit. 5. Another objection is, that the justice overruled the motion to quash the proceedings, or, as the record says, to abate the warrant. The answer to this has already sufficiently been given, since the only reason assigned why it should be abated was, that the process did not conform to the act for regulating informations. 6. It is next objected, that the venire is defective; but as the venire was issued at the instance, and upon the prayer, of the defendant, it does not lie with him to allege error in it. This point was decided by this court in the case of Callinan v. Jilson, October term, 1801, and it has frequently been so decided in other cases; nor do I ^conceive it to have been illegal for the justice to have issued a fresh venire, when the first venire had not been carried into effect, but had been mislaid, kept., or withheld, by the defendant himself, to whom it had been delivered. This allegation in the record we are to take for truth, and it became indispensable, then, that a new venire should issue, or the act of the defendant might have totally defeated the plaintiff’s action. It would not have been legal, I apprehend, for the justice to have proceeded to try the cause without a jury, after the prayer of the defendant for one; and it would be most unjust for him to avail himself of his own laches, or act, to injure the action of the plaintiff. I am of opinion, therefore, that the issuing of the second venire was proper, and that it is to be considered as the process of the defendant below, and that no objection to the form of it will now lie with, that de fendant. 7. Another objection is, that the court was continued over from the 2d of June, when the first venire was returnable, to the 3rd of June, when the cause was tried. If the court was opened on the 2nd of J une, as we must intend, and the delay created by the defendant in summoning the jury rendered it requisite to keep ¿he court open till the next day, there was no error in that proceeding. It became necessary, and the parties were hound to take notice of it, and attend accordingly. There is nothing in the law to prohibit a justice from continuing his court from one day to the next, when the exigencies of the case require it. If the defendant neglected, or refused, to attend, the justice was authorized to proceed in the trial without him: but we are rather to intend that the parties vyere present at the trial, for the record states, that the jury did hear the proofs and allegations then and there made and exhibited. However, it is immaterial, in respect to the objection, whether the defendant was, or was not, present. 8. The last error alleged, and which requires notice is, that the constable was not sworn according to law to keep the jury. The act gives a precise form of oath in this case, and the return states that after the jury had heard the proofs and allegations, the constable was sworn to attend them, and to the utmost of his ability to keep them together, in some private and convenient place, until they had agreed upon their verdict. *The return does not state any further, as to the oath, nor are there any negative words excluding the inference that the whole oath was administered in the form prescribed. As far as the oath is stated it is correct, and in my opinion, we must intend the whole oath was duly administered. This intendment is, in many respects, reasonable; for, in the first place, there was no objection stated at the time, by either party, to the form of the oath; and setting forth the words of the oath was an act of supererogation in the justice, as it formed no part of the record and process before birn. The form of tbe oath to the witnesses is equally prescribed by the act, and yet the form is nevei or rarely set forth in the return to a certiorari, nor is it ever required. The record does not set forth the oath stated as given in haec verba. It does not pretend to give the exact forrii of the one administered. If the oath as far as stated had varied from the act, it might have altered the case; but pursuing it as far as stated, and not being averred to have been all the oath that was administered, we are bound to conclude the constable was legally sworn. It has been established by several decisions in this court, that we should liberally intend in favor of the legality of justices’ proceedings. Thus in the case of Wright v. Anthony, January term, 1802, we said we would intend an issue joined, if the parties went to trial on the merits ; and in the case of Gama v. Pen field, at the same term, the jury, it appeared, had found 8 cents for the defendant on a plea of payment, and we intended a set-off to help it out. These decisions are in conformity to the intent and spirit of the act, which declares, p 500, that we shall “give judgment according as the very right of the case shall appear, without regarding any imperfection, omission, or defect, in the proceedings in the court below in mere matters of form.” I cannot but think that reversing a justice’s judgment, because part only of the. constable’s oath is inserted in the record, would be a decision at once new and rigorous ; especially, when none of it need be inserted ; when there are'no words negativing the idea that the whole form was administeredwhen no objection was taken, at the time, ly the parties; when we are bound to overlook all defects of form, and decide on the very right of the case; and when, in many *other instances, we have liberally intended in support of their judgments.

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Concurrence Opinion

THOMPSON, J.

concurred in the above opinion in alv points.

Livingston, Spencer and Tompkins, Js. in all, except as to the constable’s oath; on that point they conceived the error fatal, and therefore ordered judgment of reversal.

Judgment reversed.

Gold, the next day, on an affidavit, stating that the manner in which the oath was set forth in the record arose from a clerical error in copying, moved, on the authorities of Cowp. 425,^(a) Doug. 134,^(b) and 1 H. Black. 238,^(c) to amend the return. The Coúrt was pleased to order, that the entry of judgment should be stayed until further order, and that the justice have leave till the first day of next term to amend his return, so far as relates to the form of the said oath.

Motion granted.

(a) Varelst & Smith v. Rafael.

(b) The King v. Lyme Regis.

(c) Skutt v. Woodward.