English v. Bonham

17 N.J.L. 350

• Court: Supreme Court of New Jersey
• Decided: November 15, 1839
• Status: Published

Opinion

Hornblower, C. J.

The court of Common Fleas did not non-suit the plaintiff, because no state of demand had been filed before the Justice, but because, “ it did not appear by the transcript that the state of demand had been filed.” That there was in point of fact, a state of demand before the Justice at the time of the trial, I think, abundantly appears upon the face of the record. The Justice says, “the defendant in the course of the trial objected to one item of the plaintiff’s account.” There is also, in my opinion, evidence sufficient to satisfy us, until the contrary is shewn, that both the plainlff’s and the defendant’s states of demand were before the Justice on the return day of the warrant. Acting under his oath of office, hesent up as parts of the record and proceeding before him, the plaintiff’s as well as the defendant’s accounts, both bearing date the day on which the warrant was returned. Besides this, the defendant went to trial below upon the plaintiff’s state of demand, without raising any objection on the ground that it had not been filed in season; which it is not likely he would have done if any such ground of objection existed; especially since his motion for an adjournment had been overruled, and he had been driven into a trial in the absence of his witness.

The question comes then to this, whether if in point of fact, a statement of demand is Sled in due season, and the parties go to trial upon it, the judgment and proceedings may afterwards be set aside, simply because the Justice has omitted to enter upon his docket, in very terms, " when the copy of the account or state of the demand, was delivered by the parties ?”

The 41st section of the statute, Elm. Dig. 283, very properly directs the manner in which the Justice shall keep his record, and some of the matters which lie is directed to enter, such as the names of the parties, the style and nature of the action, the time of instituting the suit, &c. are no doubt essential; since it would be no record if they were omitted; but in respect to several other matters, the statute musí be considered as purely directory. Such for instance as the time when the state of demand was filed, the names of jurors, and witnesses, and other incidental matters that come under the general clause, “and all the proceedings before him had touching the said suit.” The enactment is as specific, that the Justice shall record the names of the jurors and witnesses, as it is that he shall enter, “when the copy of account, &c.” was filed ; and yet it will not be pretended that if the Justice should omit the names of some of the jurors, or witnesses, it would be fatal to the record.

In Dallas v. Hendry, Penn. R. 973, the action was for penalties under the timber act. The Justice had recorded the time of issuing process, but had not made a special entry stating that the action was brought for such penalties, as he ought to have done: but this court refused to reverse, saying, the nature of the action appears from the subsequent proceedings and the act is in terms complied with. In the same case,the court refused to sustain an objection to the form of the process, which had been by warrant, instead of summons, saying it was too late ; the objection should have been taken before the Justice. In Bartow v. Murray, Penn R. the court refused to reverse, on the ground that the venire was not in cqnformity with the directions of the act of Assembly.

The only .case relied upon by the defendant in certiorari is that of Sandford v. Hoover, Penn. R. 100. But it does not sustain him. In that case, a motion was made before the Justice to non-suit the plaintiff for want of a state of demand, which the Justice refused, notwithstanding there was in fact no slate of demand filed, nor any pretence of one ; and what is more singular the Court of Common Fleas, proceeded to hear the appeal and affirm the judgment, without any state of demand. It is true, one was sent up from the Common Fleas with the certiorari; but it distinctly appeared, that none had been filed before the Justice nor even upon the appeal, and the proceedings were set aside.

In my opinion the judgment of non-suit must be reversed, and the record remitted to the Common Fleas to be proceeded in according to law-

Ford, 'White, Dattox, and Neyius, Justices, concurred.