Schermerhorn v. Tripp

2 Cai. Cas. 108, 1 Cole. & Cai. Cas. 371

• Court: New York Supreme Court
• Decided: August 15, 1804
• Status: Published

Opinion

SPENCER, J.

The same point has been decided in this court in the case of Percival v. Jones, which was an action Drought by a resident freeholder, under the 3d section, (1 Rev. Laws, 492,) against a justice, for apprehending him on a warrant.

Woodworth Was stopped by the court.

Per Curiam. From the evidence below it was conclusively shown, that the justice (Schermerhorn) was, in fact, a keeper of a tavern, or lived in one. If so, he had nc jurisdiction to try the cause, (1 Rev. Laws, 502, s. 20,) and as the constable (Mason) joined with him and the plaintiff in pleading the general issue, they are all equally trespassers. Had the constable *pleaded separately, he would probably have been excused ; but he has now involved himself with the others, and we cannot separate their fates.

.Judgment of the common pleas reversed.