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TREATISE

ON THE

CIVIL JURISDICTION

OP

Justicks of the Peace

IN THE

STATE OF NEW-YORK.

BY ESEK COWEN,

Counsellor at Law.

SECOND EDITION, REVISED BY

SIDNEY J. COWEN,

Counsellor at Law.

PART II.

ALBANY:

PUBLISHED BY WM. & A. GOULD & CO. LAW BOOKSELLERS,

No. 108, STATE-STREET,

AND BY GOULD, BANKS & co. LAW BOOKSELLERS,

No. 144, NASSAU-STREET, NEW-YORK.

G, M. Davison, Printer, Saratoga Springe.

350661

SECTION V: :

OF CERTAIN RULES, WHICH RELATE TO PLEADING IN GENERAL.

Something has been said on this subject, in the intsoduction to the present chapter, by which it appears that the pleadings; in a justice's court, are to receive the utmost possible construction in favor of their validity. And where either the cause of action, or the defence is stated in plain language, and in words according to their ordinary import in conversation, this will be enough, though the strict rules of special pleading at the common law be violated.(u) (1) Indeed, it is said (and with the greatest propriety) that special pleading in a justice's court is to be discountenanced, that it is calculated to mislead magistrates, and involve the proceed. ings of their courts in all the technical nicetics of a court of record. (v) Whenever, therefore, the supreme court can possibly intend, from the proceedings before them, that the merits were fairly tried in the court below, they will not examine or test by technical rules the formality of the pleadings.(w) Under these strong intimations of the supreme court, I confess it has frequently been a matter of surprise to me, and the more so, on considering the nice and intricate nature of special pleading, that the legislature should still leave the defence in a justice's court, to be conducted by rules which have, in their application, so often embarrassed the greatest lawyers, and the ablest judges on the bench of the common law courts. “If,” as an able writer on this subject observes, “ a navigation often difficult in itself, and always made dangerous by bad pilots, has

(1) In addition to our remarks, and the authorities cited ante, 551, 552, a case recently decided by the supreme court, 13 Wen. 283, should be noticed. In that case, the court expressly adjudge the law to be, that if required by the parties, the pleadings in a justice's court must be drawn with legal accuracy, as well in point of form as substance; and if objected to before the justice, they are to be governed by the same rules as pleadings in other courts. And Ch. J. Sarage, in delivering the opinion of the court, remarks, that “when a cause from a justice's court is brought up for review, and no objection was taken to the pleadings before the justice, this court will not readily listen to such an objection, particularly one of form merely. If it be good in substance, that is sufficient; and, no doubt, it was in reference to that principle that the revised statutes provide, that where a plaintiff declares orally, the justice shall enter in his docket the substance thereof. 2 R. S. 234, $ 48, (p. 165, 2d ed.) The legislature did not thereby intend to say that a declaration before a justice should not be perfect in form as well as substance, if 80 required, at the time when put in.” 13 Wen. 284.

(u) 3 Caines, 152.
(v) Id., and vid. id. 275 to 278.

(w) Id. 174.

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