Opinion
May 1812.
After appearance of the defendant before the justice, and again in court on appeal, and trial upon the merits, without exception to the warrant, the judgment will not be reversed because the warrant omits to state that the demand was for a less sum than the limit of a justice's jurisdiction, or that it was upon some instrument of writing under the defendant's signature. [See Marshall v. Penington, 8 T. 430, citing this case; Large v. Dennis, 5 Sn. 595.]
Regular pleadings are not required in proceedings before justices of the peace. Nor upon appeal in such cases, is it required that an issue should he made up. The jury are sworn to try the matters in controversy.
Proceedings in actions before justices of the peace should be favored as much as the rules prescribed by the legislature will permit. [See Code, 4176-4178.]
Writ of error from the Circuit Court of Greene county.
This is an attempt to reverse proceedings, commenced before a justice of the peace.
First, because, as it is alleged, the warrant does not show it to be a case within his jurisdiction.
Secondly, because, from the record, the cause of action does not appear.
Thirdly, because no issue was joined for the jury to try.
As to the first objection, there is nothing upon the face of the warrant which countenances the idea of his not having jurisdiction; on the contrary, the warrant connected with the judgment rendered shows clearly that the case was within his cognizance; after the defendant not only appeared before the justice, but likewise in the County Court, and had the cause tried on its merits, without any exception to the warrant, it is not supposed to be correct to reverse the judgment on account of the omission to state in the warrant that the demand was for a less sum than fifty dollars; or that it was upon some instrument of writing under the defendant's signature, either of which circumstances would have removed the objection.
As to the second point, in proceedings before justices there is no law which requires any pleadings to be made up, nor is there any law requiring a written statement of the nature of the demand. If the defendant is a second time sued for the same claim, he must protect himself by averring and proving that there was a previous recovery thereof. The defendant is not, in this case, in a worse situation than many defendants in actions of assumpsit, where the declaration does not show precisely how the demand accrued, and the defendants have no other protection against a second suit than that which this defendant has.
As to the third point, the law does not require that any issue should have been made up. The jury are sworn to try the matter in controversy, and if this objection were to prevail, it would be a total departure from the universal practice for at least the last fifteen years.
Proceedings in actions of this kind, which are directed by law to be conducted in a summary way, ought to be favored as much as the rules prescribed by the legislature will permit; and it is not perceived that any of those rules have been departed from in this case. See 3 Johns. 436; 3 Caines, 187, 218, 275; 5 Johns. 122; 1 Cranch, 118; 1 Johns. 20; 3 Burr. 1366; 3 Term Rep. 444; Coleman's Cases, 386; Cowp. 19.