it shall be accounted his folly, to neglect the time of taking that exception."-(Same page,) "If there be an omission of any writ or process, or one writ awarded in lieu of another, yet if a party appear, and plead to issue, and judgment is given upon the verdict, this is not erroneous because he has not taken advantage of this before pleading to issue." In 4 Bacon's Abridgment, 130, pleas and pleadings, "after plaintiff and defendant have joined in the issue, to be tried between them, they have admitted the pleading to be good, and sufficient to try the issue." In 1 Com. 37, abatement: "So it may be pleaded that the plaint is not in a proper action, as the plaintiff declared in an action on the case, when he ought to have an account.' Same page, (and expressly the point before us,) "So that he brought an action on the case, when he ought to have brought a general trespass." I consider the summons issuing from our justices courts, to be of the same nature as writs from other courts of record, and subject to similar regulations, in cases of this kind. The substance of this summons, naming the action, is entered in the magistrate's docket, and open for the inspection of the parties. If the state of demand, which can be considered in no other point of view, than the declaration of the plaintiff, varies substantially from the style of action, the defendant may take advantage of it by a plea to abate the suit: If he neglects to do this before issue joined on the merits, he has waved his privilege, and is precluded from bringing it forward afterwards as error. I think this principle is fully established by the authorities I have cited, and does, and will tend to prevent continued litigation. As I have the misfortune to differ from my brethren on this point, I have been thus particular in stating the authorities on which I have founded my opinion, that the judgment should be affirmel. PENNINGTON, J.-I concur in the reversal of this [*] judgment; the action is an action on the case, and so stated on the record of the justice. The state of demand, both in form and substance, is in trespass. The course of decisions in this Court, hath been to consider this error. This is not merely a variance between the writ and declaration, but between one part of the record and another. It is best to adhere to one uniform course of practice. Elmer, for plaintiff. Judgment reversed. [The Reporter was strongly impressed with the force of Judge Rossell's opinion and observations in this case, as well at the time of delivering of it, as since; but on reflection, he is still of opinion, that the course of the Court is the safest practice. First, the suitors in the justice's court, forty-nine out of fifty, do not understand the nature of a plea in abatement; and would not know when or how to plead it. Second, suppose the plaintiff should bring an action of trespass, in which action a set-off cannot be gone into; and when he should come before the justice on the return of the summons, was to declare in debt on simple contract; or what is the same thing, deliver to the justice an account against the defendant. The defendant coming before the justice, expecting to be put to answer a trespass, not being prepared to plead payment, and deliver to the justice an account, or other matter of set-off, as the act of Assembly requires to be done at that time, would be deprived of his set-off, by this trick of the plaintiff, without any remedy.] [*] LUMMIS vs. STRATTON. ON CERTIORARI. In action for deceit, the fraud should be specified. Affidavits not legal evidence, without consent. THIS was an action of trespass on the case, brought by the defendant in this Court, against John Lummis, the plaintiff in certiorari. The following state of demand, was filed with the justice: Job Stratton, vs. John Lummis. in the above cause, comes into court and demands Action trespass on the case. Job Stratton, the plainof the said John Lummis, the sum of eighty dollars, for a horse, which the said Job Stratton purchased of, and from Thomas Smith, and which the said Lummis took from the said Stratton by false representation. This was tried by a jury, who found for the plaintiff below, $60 damage, on which judgment was rendered. On the trial, the justice had admitted in evidence, depositions which had been taken before another justice; several reasons were assigned for reversal. ROSSELL, J.-The state of demand, though not set forth with strict and technical nicety, is not so faulty, especially as the plaintiff pleaded to it not guilty, as to set aside the judgment. I think, however, that the admission of the affidavits should have appeared to be by the consent of the defendant; and am therefore for reversal. PENNINGTON, J.-The first reason assigned for the reversing this judgment is, that the action is case when it ought to have been trover. There is nothing in this; an action of trover, is an action on the case. The second reason is, that the state of demand does not contain a sufficient cause of action. It appears to me, that this is a sound objection. The action is an action on the case, in the nature of an action of deceit. The [*] plaintiff states, that he demands of the defendant $80 for a horse which he purchased from Tho's Smith, and which the said defendant took from him by misrepresentation. The manner of this fraud, misrepresentation, or deceit, ought to have been set out, so as to have shewn the transaction to have been fraudulent and deceitful, and to the damage of the plaintiff. The state of the demand does not even aver the property of the horse to be in the plaintiff, only by way of inference, and that inference not conclusive; the horse might not have been Thomas Smith's. But what I principally go on, is, that the state of demand ought to have shewn in what the deceit consisted; at least, so much of the transaction should have been stated as to have made the cause of action apparent on the record. It is no more than the plaintiff saying, I demand of the defendant 880, for deceiving me about a horse. The third reason assigned is, that the justice granted a venire for a jury, at the request of the plaintiff, in the absence of the defendant. I think the words of the act of Assembly justifies this proceeding; the time given for awarding a venire is after the appearance of the defendant, and before the justice hath proceeded to enquire into the merits. This was the case here; and as to that, I apprehend, regular. The fourth reason assigned is, because the justice admitted in evidence, and suffered to go to the jury, depositions taken before another justice. As to this, it appears by the transcript of the justice, that depositions taken before a justice of Burlington county, about a year before the trial, and before the commencement of the suit, was read in evidence; that this proceeding is against law cannot be questioned. If this had been done by consent, it would have been proper; we cannot, however, infer consent from the record; nor can I very readily bring my mind to think, that this error is cured by the omission on the part of the defendant below to object to it, as hath been intimated. I do not apprehend that the error arises from depositions being [*] admitted against the objection of the adverse party, but to their being admitted at all without consent. (a) In trials before justices, parties are presumed to be, and in most cases, are without counsel; they cannot be supposed to be sufficiently acquainted with the rules of evidence to know when to object and when not. If, therefore, the want of objection is to legalize testimony otherwise illegal, the rights of ignorant men will be endangered. On the second and fourth reasons, I am, for the reasons before mentioned, of opinion, that the judgment of the justice ought to be reversed. KIRKPATRICK, C. J.-Concurred. Judgment reversed. (a) In justices court, evidence is offered at the producer's peril. South. 102, 3 Halst. 88. D. & B. SHREEVES v8. LIVESON. ON CERTIORARI. Action trespass, and verdict and judgment for debt, not error. Demand not filed on return day of summons, in consequence of the justice's absence, and his own adjournment, and defendant afterwards adjourning the cause, no error, per Pennington J. THIS was an action of trespass, brought by the defendant in this Court, against the plaintiffs, who demanded of them $15 for damage done to him by the said plaintiffs, in taking with force and arms from him, a quantity of oysters, the property of him, the said John Liveson, to his damage, &c. This cause was tried by a jury, and verdict and judgment for the plaintiff below, for $15 debt, with costs. On which, the plaintiffs in this Court, being the defendants below, bring this certiorari. Three reasons were assigned for the reversal of the judgment of the justice, which are sufficiently stated by the judges. KIRKPATRICK, C. J.-This action was brought by the plaintiff below, against the defendants, for taking oysters in the north river in Shewsbury, which oysters [*] the plaintiff claimed to have planted there, or to have purchased from one who had done so; and the certiorari seems, from the reasons assigned to have been brought to try this right of planting, and exclusively using and occupying such oyster beds in that river. But there is not enough upon the record to bring up that question. Whether the north river be a tide water, whether it be a public highway for all citizens to pass and repass, whether the land under the water has been located and sold, or what is the nature of the fishery claimed, whether free, several or common, does not appear. However, the case therefore may really be as to this right of planting, and exclusively using and occupying these oyster beds in this water, there is nothing in this record which shews the recovery to be unlawful in this case. The plaintiff, for ought that appears, may have a several fishery. Therefore, I am for the affirming. ROSSELL, J.-Concurred. The PENNINGTON, J.-The first reason assigned for the reversal of this judgment is, that the action is an action of trespass; and the verdict and judgment in debt. The finding of the jury, and the rendering judgment is not technically correct; but it is too strict to reverse for this cause. word debt, seems to have been made use of to distinguish the sum found due to the plaintiff from the costs; the word damage would have been more correct; but I cannot conceive that any injury can in any case arise from this manner of entering the verdict and judgment-technical formality is not required. The second error assigned is, that the plaintiff did not deliver to the justice his state of demand, on the return day of the summons. This, on view of the record, is literally true. But it appears also from the record, that the summons was issued on the 27th January, returnable on the 10th February; that on the 3d of February, the justice was called out of the county, and [*] left a written adjournment behind him, adjourning the cause to the 17th February; on which day both parties appeared, when the plaintiff filed the state of his demand. This was the first appearance, and for the purposes of filing the state of demand, might be considered the return day of the summons. If the defendant had not appeared, the justice could not legally have proceeded in his absence; but he appeared, and instead of complaining of the irregularity of the adjournment, moved another adjournment himself, on which adjournment the cause was tried. Under these circumstances, I think, the state of demand was filed in time. The third error assigned is, that the action was brought for taking oysters out of a public tide river, and from near the middle of said river, where there had always been oyster beds. The state of demand, to which we are to look for the cause of action, says nothing about any river, but contains a general charge for taking a quantity of oysters, the property of the plaintiff, by force and arms from the plaintiff and may be considered in substance as an action of trespass, for taking and carrying away the goods and chattels of the defendant. As no plea was put in, the cause must be considered as tried on the general issue; and there is a verdict and judgment for the plaintiff. The plaintiff in error cannot go out of the record to assign errors. It is true, that the justice hath sent upon his transcript, what he was not bound to do, the testimony taken in the cause; which testimony goes to shew that the oysters were taken out of a river. But evidence was also given, that the plaintiff, or rather those from whom he purchased them, put them there. This was all matter for the consideration of the jury, whose finding is not under review. If the river was a public river, and the oysters there growing, and it was lawful for all the citizens of the state to take them, the defendant ought to have pleaded the matter specially, and put the facts in issue. [*] I am, on the whole, of opinion that the judgment ought to be affirmed. Wall, for plaintiff. Judgment affirmed. |