People ex rel. Blanchard v. Judges of the Court of Common Pleas of Washington County , 20 Johns. 363 ( 1823 )

Per Curiam.

We are not convinced by the reasoning of the Judges of the Court of C. P., on the return to the alternative mandamus, that in such a cause as the one before them, a reference could be ordered. That Court takes cognizance of appeals from Courts of Justices of the Peace, under an express statutory provision. Independently of the statute, they have no jurisdiction. The 19th section of the act to extend the jurisdiction of Justices of the Peace, (sess. 41. ch. 94.) provides, that when the Court of C. P. become possessed of the cause, they shall proceed to the hearing thereof, on the examination of the witnesses named in the re - turn, who were sworn, and testified before the Justice, unless they were objected to, and illegally admitted, and of the witnesses offered and rejected, if the Court shall think it legal to admit them. According to our construction of the statute, the Court of C. P. must hear the cause, and decide on the admissibility of the proof offered in the Justice’s Court, What restraint would there be on the referees, to prevent them from going, at large, into the merits of the cause, without regard to the former trial f We have decided, that it was not the intention of the statute to deprive either party, on the appeal, of a trial by jury. This is a common Saw right, which cannot be taken away, but by express legislative enactment, within the provisions of the Constitution. A reference is not a common law proceeding; but a mere statutory regulation. The motion for a peremptory man’» damns must be granted.

Peremptory mandamus awarded.