McColley & Bros. v. Hickman

The Court gave judgment for the plaintiffs against the defendant on the demurrer. On the first ground of objection taken to the declaration, that the surety in the appeal was released by the reference of the case out of court 237 under a rule of Court, the case cited from 18 Johns. 22, furnishes the correct distinction between it and the other cases cited in support of the objection, and is directly against the demurrant. Had the appeal been submitted to arbitration by the parties before it was entered here, or without being referred under a rule of Court, pursuant to the statute, it would have discharged the surety from the obligation of the recognizance; for it would have been incompatible with the engagement of the surety in the recognizance. And that is the extent to which the other cases cited go. But the case in 18 Johns. recognizes that the effect is otherwise when the case is referred under a rule of reference out of Court, because it is one of the usual methods prescribed by statute, and warranted by long and established practice, of prosecuting suits, here; and although a case, when referred under a rule, is said to be referred out of Court, yet it is not in contemplation of law or in point of fact literally out of Court, for it is still subject to the control of the Court; .and the report, when made, must be returned here for confirmation, and has no conclusive effect until the judgment of the Court is pronounced upon it. It is, therefore, nothing more than substituting, by consent of parties, another and a usual mode of trying the case here in lieu of a trial at bar before the Court and jury, and has practically the same legal operation and effect; and therefore it could not be held to discharge the surety from the obligation of his recognizance that the appeal should be prosecuted with effect, and that any judgment rendered against the appellant here upon the appeal should be satisfied. On the other point we are of opinion that it was sufficient in this case to aver in the narr that the suit helow was for a cause of action within the jurisdiction of the justice of the peace. Being alleged to be a debt under one hundred dollars, and that he gave judgment against the defendants in the trial for sixty-eight dollars and costs, and that the defendants thereupon appealed from the judgment, was a sufficient statement of the facts of the case, without in 238 cumbering the record of the present action with a transcript of the record below, or more explicit allegations, to require this Court to judicially notice" and infer that both the cause of action and the defendant himself were within the jurisdiction of the justice of the peace.