Hardy v. Rowe

By the Court, Nelson, J. The only issue presented by the pleadings was in reference to the assignment of the judgment declared on. The assignment was proved, to the satisfaction of the court, and yet they directed a verdict for the defendant, upon the assumption that the question was one of law, the court considering the denial of the assignment by the defendant as a negation of the rule of law contended for by the plaintiff, even if the assignment was proved. In this conclusion the common pleas erred. Some regard must be had to the pleadings and to the forms of proceedings in justices’ courts, when intimately connected with the rights of the parties. The only issue for the jury to try was whether or not the judgment upon which the suit was brought had been assigned to Brewster, and that issue only, if any, should have been tried by the jury, and found according to the facts. If the issue was immaterial, as I am inclined to think it was, a repleader might have been asked for by the defendant, 5 Wendell, 513; but such motion, and the orderly course of proceeding on the trial of a cause, should not have been confounded. The difference between a verdict for the defendant and a motion for a re-pleader, for the immateriality of the issue, after a verdict for the plaintiff, is very material, as it respects the rights of the plaintiff. The jfifty dollar act requires that all actions brought under it shall be brought in the town, or next adjoining town, wherein either the plaintiff or defendant resides, except when the plaintiff is a non-resident of the county. Laws of 1824, page 293, § 30. I am of opinion that the safest construction to be given to this act, is to confine the question of residence to the parties to the record; for if the rights of assignees were to be regarded in this particular, it would be almost impossible to pre [454] vent an evasion of the statute. The common pleas, however, having erred in their direction to the jury, under the pleadings in the cause, the judgment must be reversed. Judgment reversed.