M'Neil v. Scoffield

3 Johns. 436 | N.Y. Sup. Ct. | 1808

Per Curiam.

It is objected, that a count on contract and fraud could not be joined in the same declaration* This would, no doubt, be a valid objection, on a motion in arrest of judgment here, where the court are judges of the law, and the jurors decide on the facts : But in proceedings before justices of the peace, under the act for the recovery of debts to the value of 25 dollars, the jury may decide both the law and the fact. Again, `where the party makes no objection to the pleadings at the time, but consents to go to trial upon them, we have repeatedly decided, that he shall not avail himself of any defects in the form of pleading, which may appear on the return to the certiorari. . This court will look to the right and justice of the case, without regard to technical niceties, or matters of form. It is further objected that the evidence did not support the declaration ; but the declaration was not on the special agreement. "

It was proved that the defendant had promised to pay the difference between the horses ■ but the precise sum was not stated. The law implies, and the court will intend, that it was the real difference in value between the two horses, which was proved to be 35 dollars.

Judgment affirmed.