King v. Fuller , 3 Cai. Cas. 152 ( 1805 )

Per curiam.

It has been objected, that the word let, imports a bailment, and if so, that the unsoundness of the horse was immaterial, and not prejudicial to the plaintiff below. In reviewing the proceedings of magistrates, this court has decided that they will not require of the parties, who are to be presumed unversed in the forms of law, technical nicety, or legal precision. If the matter stated shew a good ground of action, it is all that is requisite. To test proceedings in justices’ courts by the rules of pleading adopted here, would be productive of the greatest injustice. The act giving jurisdiction to justices of the peace, requires of us, on certiorari, to pronounce judgment as the very right of the case shall appear, without regard to omissions, See. in mere matters of form. In common parlance, “ let” as used here, means exchange, and so the court will understand it.

With respect to the proceedings of the justice himself, the court will require a compliance on his part, with .the forms prescribed by the statute. If these have been departed from, and are not waived or cured by the statute of jeofails, the proceedings cannot be supported. This principle was adopted in the case of Day v. Wilber.

The opinion expressed, extends to the exception taken to the replication. It denies substantially, that any trial had ever been had on the matter stated as the ground of the action. It also alleges that it could not lawfully have been set off; this the court will reject as surplusage, and wholly irrelevant. But the last objection is fatal. After the defendant below had answered the replication, by alleging that the same matter had been tried, as stated in his plea, and tendering issue, the plaintiff demurred generally, and thereupon the justice decided in favor of the demurrer. There could have been no other ground for this determination than this ; that the rejoinder did not answer that part of the replication which stated, that it was unlawful for the plaintiff to have pleaded a set-off of this demand. That part of the replication we have been obliged to consider surplusage to support the replication itself, and it being so, an answer to it was unnecessary.

There has been injustice done by overruling the rejoinder, and thereby preventing the trial of a material fact, which, if true, ought to have barred the action.

"We must not be understood as determining, that damages arising from a fraud can be legally set off before a justice. If, however, it be pleaded, and is not objected to, and a jury pass upon it, the consent of parties thus to be implied,' will take away the error ; and it then becomes a bar to a subsequent suit. The judgment below must therefore be reversed on the last exception.