Spencer v. Perry

The opinion of the Court was by Weston C. J. The stat. 1834, c. 101, makes provision for the continuance of a cause by another Justice, when the Justice, before whom the cause is to be tried, by reason of sickness or some other cause, is unable to attend at the time and place appointed for trial. We think, that upon a fair construction, this is intended to be limited to the return day, of the writ. Such is the obvious meaning of the statute. There could be but one continuance under it, and the same pleadings and proceedings are to be had, as if the cause had not been continued. This evidently implies, that the defendant had no opportunity to plead, by reason of the absence of the Justice. The case finds no assent to tho continuance in question by the plaintiff or his counsel. His mere silence could not confer a power, not warranted by law. Tho Justice not being present at the time and place, to which the cause was duly continued, operated a discontinuance of it. This is very clear upon principle and authority. Tho Justice had no right to order a further continuance, prior to tho day appointed. It might lead to great abuse in practice ; and is authorized neither by statute, nor by the common law. The cause being discontinued, the jurisdiction of the defendant was at an end. His subsequent proceedings were coram non judice, and afford him no justification. He acted under a misapprehension of his authority. We perceive no reason to impute to him any thing wilfully wrong, but he has in our opinion rendered himself liable to an action of trespass, having proceeded after his [416] jurisdiction had ceased. Briggs v. Wardwell, 10 Mass. R. 356; Butler v. Potter, 17 Johns. R. 145. Defendant defaulted.