Gervais v. Powers

jBy the Cowrt. Meeker, J. This is an action of trespass ‘ quare clausum fr eg it,” brought by the plaintiff on the 10th of January, 1850, when process was sued out returnable on the 21st of the same month, at which time the plaintiff, by his counsel, filed a formal declaration in trespass, complaining of the defendants, that they had, with force and arms, broken and entered his close, and then and there took away goods and chattels, &c. On the return day, the defendants not appearing, the cause was adjourned to the 28th, when the Justice rendered judgment for the plaintiff for $10, and $5,50 costs. The evidence, as appears from the Justice’s return was that the defendants drove from the premises of the plaintiff a cow, which he was keeping as an estray, that he had pastured her [47] some six weeks, which was proven to be worth $2 per week, and that the plaintiff had agreed to pay James M. Goodhue $2, for advertising her, as an estray, in his paper. The plaintiff also introduced evidence, conducing to show by the confession of one of the defendants, that the cow was theirs. There was no testimony introduced for the defendants, nor were they in attendance. This is substantially all the evidence in the cause. The judgment was taken by oerbiora/ri to the .District Court of Eamsey, where the Judge reversed the judgment, and from that Court to this, by writ of error. In the defendant’s affidavit for a certiorari none of the testimony appears, and but a single error is complained of, which is, that the Justice had no jurisdiction of the persons of the defendants as they were summoned to appear before him on the 22d of January, 1850. To this the Justice in his first return replied, they were summoned to appear on the 21st, and not on the 22d of January, as averred in the affidavit. It is alleged that the District Court erred in reversing the judgment because the error complained of in the affidavit did not appear upon the return of the Justice, &c. The consideration of this proposition will necessarily involve the inquiry as to what extent it is made the duty of a Justice to respond to the complaint and errors, set forth in the affidavit of the party aggrieved, and whether his return should contain any matters beyond them. If the Justice were to confine his return only to the averments in the affidavit of a party suing out a certiorari, a merely partial and imperfect view might be had, and it would be impossible for a Judge to determine correctly, either the law or the merits of the case. Such a practice would be a strong temptation to perjury, and to a false and distorted view of what transpired on the trial before the Justice. We think the Justice should make a complete return of all the proceedings and his rulings at the trial, and the District Court, in its affirmance or reversal of the judgment, shoiild be guided by what appears on his return. We do not deem it necessary in the disposition of this cause, to’determine judicially, whether a person keeping an estray can maintain an action like this, either against the owner or [48] any one else, for taking it away. For, if lie cannot, the District Court was certainly correct in reversing the Justice’s judgment, and if he can,, the District Court was equally correct in reversing a judgment which, from the Justice’s return must have been rendered, principally, on evidence altogether irrelevant and inadmissible in an action of trespass quare elwur swnfregit, foreign alike to the canse of action suggested in the summons, or set forth in the declaration. Surprise and injustice must he the legitimate fruit of such a practice, and this might he illustrated in the very case now under consideration. The defendants, having been informed by the summonsJihat they "were sued in an action of trespass, might have felt that no such action could he maintained against them, and therefore have neglected to appear and defend; whereas, had they been sued in assumpsit on account or any other money demanded for pasturage, and advertising an estray, their conduct might have been quite otherwise. The judgment of reversal rendered by the District Court is affirmed with costs.