10 Wend. 254 | N.Y. Sup. Ct. | 1833
By the Court,
The counsel for the defendant in error makes one point which ought to be discussed preliminarily. It is that the bill of exceptions is dated May 6th, 18.11, one year after the trial. If the bill of exceptions was
The counsel for the defendant also insists that the court erred in its previous decisions, and therefore if the judgment is right, though founded upon a wrong reason, it should be affirmed. This is not the course upon a bill of exceptions. The precise points decided by the court below and to which the plaintiffs excepted, are all which are now properly before us. The defendant might have excepted and taken his bill also, and thus brought in review the decisions which were against him. The only point now before the court is whether the declaration is defective in the particulars specified in the bill of exceptions. It has often been decided that great liberality will be exercised as to matters of form in proceedings before justices of the peace. In the court before the justice, the defendant might have demurred to the declaration, if he had chosen so to do, and the decision, if against him, might have been reviewed ; he did not do so, but took issue. When an appeal is brought, the cause is to be tried upon its merits in the common pleas, upon the pleadings put in before the justice. The defendant had no right therefore to take exceptions in the manner he did in the common pleas, and the court erred in its decision. It appears to me that they had virtually overruled both the objections to the declaration which they sustained on granting the nonsuit, when they held that the acts of the defendant and general reputation were suffident to shew him an officer. If be had exercised the office, but neglected some of its duties for which he was punishable, he could not excuse himself by saying that the commissioners had omitted some part of their duty. Neither could he say that he was not elected for the year 1828, if, during the official year in which the election was held, in 1828, he exercised the powers of the office. The judgment must therefore be reversed, and a venire de novo must be issued by the court of common pleas of Tioga county. It will probably be satisfactory