Schermerhorn, Mason and Bishop v. Gideon Tripp, Junior

Schermerhorn, Mason and Bishop v. Gideon Tripp, Junior. ERROR from the common pleas in Rensselaer county. The suit below was trespass de bonis asportatis against a justice of the peace, a constable, and a plaintiff, in a suit before the justice under the 10/. act, for taking the goods of the defendant, in an execution on a judgment rendered by the justice. The defendants all joined in a plea of not guilty.— The evidence adduced was, that the justice lived in a tavern where he officiated as the tavernkeeper, made out the bills, and received payment for them, hut that the justice did his business.in a small out-room, and the licence for the house was taken out in the name of the justice’s son. This, however, it appeared from the Justice’s own declarations, was done to av0^ t^e operation of the 20th section of the act. —On this, the defendant below demurred to the evidence. The court having given judgment for the plaintiffs, the cause now came up on a writ of error, in which the general errors were assigned. Foote, for the plaintiffs in error, submitted the case on the facts presented by the record. Woodworth, contra, relied on the words of the act, and the testimony being such as to bring the justice clearly within them. If so, as they all joined in the same plea, they are all equally responsible. For where, in trespass against several, all unite in a plea of not guilty, the separate justification which one might have pleaded, is gone. 2 Wils. 384. 2 Str. 993. 1 Rev. Laws, 502. [MAJORITY — Spencer, J. Per Curiam.] Spencer, J. The same point has been decided in this court in the case of Percival v. Jones, which was an action brought by a resident freeholder, . A . . r , ,. , . against a justice tor apprehending him on a warrant. Woodworth was stopped by the court. Per Curiam. From the evidence below, it was conclusively shown, that the justice (Schermerhorn J was in fact, a keeper of a tavern, or lived in one. If so, he had no jurisdiction to try the cause, : andas the constable (Mason J joined with him and the plaintiff, in pleading the general issue, they are all equally trespassers. Had the constable pleaded separately, he would probably have been excused; but he has now involved himself with the others, and we cannot separate their fates. Under the 3d sec. 1 Rev. Laws, 492. Sec. 20. 1 Rev. Law, 502.