MacDonell v. Buffom

A justice of the peace in mating a return to an appeal, acts ministerially. And ho is liable for a false return to an appeal for any damages which a party to such appeal may sustain. "Where competent evidence is offered on the trial, and rejected by the justice ; and at the time the justice makes his return, or amended return on appeal, he recollects the fact, or by a proper effort to refresh hia memory, he can bring the facts to his recollection; and if he intentionally omits or neglects to use such effort, with a design on his part to prevent a reversal of the judgment, and -wholly neglects to return such fact, he is liable in an action of damages for a false return, to the whole amount of damages which the appellant may show he has sustained in consequence of such falso return. The justice in such action cannot sustain his defence, that his ruling, rejecting the evidence, if actually made, was right under the pleadings ; that such evi- • dence was not receivable under a denial answer; that it was new matter, and should have been pleaded; where it is shown that the action tried before him was one for carelessly and negligently running against the plaintiff’s wagon, and injuring it to his damage of $50, the defendant’s answer being a denial merely; and the evidence offered .by the defendant and rejected by the justice, tended to show that tho negligence on the part of the plaintiff contributed to the injury. This evidence should have been received under the denial answer, as it tended to prove that the plaintiff had no cause of action; consequently it was not necessary to set it up and plead it as new matter.

Appeal from judgment upon verdict, and also from order of special term denying motion for a new trial. The action is for damages for a false return made by the defendant, a justice of the peace, in an action wherein one Nathan Francis was plaintiff, and MacDonell (the present plaintiff) was defendant. Upon the trial of this cause, -the record in the action of Francis against MacDonell was put in evidence, from which it appeared that the cause of action therein alleged was that the defendant, MacDonell, in September, 1858, at or near the fair ground in Erie county, ran against the plaintiff’s buggy in a careless and negligent manner, thereby breaking and marring it to the plaintiff’s damage of $50. The answer was denial. The cause was tried in the justice’s court, and judgment was rendered against the defendant, MacDonell, for damages and costs, $11. The defendant appealed to the county court. The justice, Buffum, made his return to the court. Upon the application of MacDonell, the appellant, the county court made an order requiring a further return and statement as to certain matters and subjects specified. The substance of the eighth specification was whether the defendant’s counsel offered to prove by one Hambleton that by the rules and regulations of the society (agricultural), the enclosures or track spoken of by plaintiff’s witnesses, was set .apart for the exhibition of horses entered for premiums; that defendant’s horse and buggy, as such, were regularly and duly entered for premiums on the track, and that at the time the injury occurred, the plaintiff was a trespasser within said enclosure. Ninth, whether the plaintiff’s counsel objected to the offer, and the grounds of the objection, and whether or not the court sustained such objection, and refused to admit such testimony. ' Tenth, whether the defendant did not offer to prove that by reason of the plaintiff’s negligence and carelessness, the plaintiff’s buggy came - in collision with the defendant’s buggy, and injured it to the extent of $25. Eleventh, whether the plaintiff’s eoxxnsel objected to1 the offer and the grounds of the objection, and whether the court sustained such objection, and refused to admit the testimony. The justice (the present* defendant) made a further and amended return, and as to the eighth specification stated, there is no record in my minutes of an objection to anything offered to be proved by the witness Hambleton by the defendant, nor have I any recollection of any such offer or objection as that mentioned. To the tenth, I have no recollection of any such offer or objection, and have no record of such an offer or objection. To the eleventh, I have no recollection or record relating to the testimony of Hambleton, except what was formerly returned by me. The coxxnty com’t made a second, order that the justice return definitely and specifically to the. interrogations eighth, ninth, tenth and eleventh, repeating them, contained in the first order. The justice returned to the eighth, that he had no recollection that any such offer was made by the attorney for the appellant on the trial; that he had nó such offer specified in his minutes of the trial; and that he could not amend or retxim to the interrogatory more specifically than he had done. To the ninth interrogatory, he stated that he did not recollect that the offer was made; that he could not state that there was any objection made thereto. To the tenth and eleventh; that the counsel for the defendant did not make the offer stated in the tenth interrogatory, and consequently no objection could have been made thereto. The county court reversed the judgment, and the plaintiff appealed to the supreme, court, which reversed the judgment of the county court, and affirmed the judgment of the justice. The testimony upon this trial proved, or tended to prove, that an offer was made by the defendant in the justice’s court to prove by Hambleton, that by the rules and regulations of the society, the enclosure spoken of by the plaintiff’s witnesses, was set apart for the exhibition of horses entered for premiums; that the defendant’s horse and buggy, as such, were regularly entered for premiums on the track; and that at the time the injury occurred, the plaintiff was a trespasser on the track within such enclosure; that this evidence was objected to by the plaintiff ’s attorney, on the ground that it was immaterial and incompetent under the pleadings, and that if plaintiff was a trespasser, it did not justify the defendant in injuring the plaintiff’s buggy; and that the objection was sustained by the justice. Also, that the defendant in such trial before the justice, offered to prove that by reason of the plaintiff’s neglect and carelessness at the time spoken of, the plaintiff’s buggy came in collision with defendant’s buggy, and injured it to the extent of $25; that this was objected to, and the objection was sustained by the justice. On the part of the defendant, evidence was given tending to prove the contrary, or modifying the character of the offers, and tending to prove that the justice made no decision thereon. The justice, the defendant in this case, was a witn ess in his own behalf, and his evidence tended to prove that he did not understand that such offers, or either of them, were made, and if made, that he was not called upon to make any ruling, and that he did not rule ; that he kept minutes, but they did not show any such offer; that he returned everything on his minutes, and all that took place as he understood. it according to the best of his recollection; that he did not intend to omit anything, and did not omit anything that he could recollect; he was 62 years old; he had assistance in making all the returns. The charge was, that if the offer to prove that the plaintiff in the former action was a trespasser, was made as stated in the offer as testified to by Whitney, and the justice recollected at the time he made his original return, or either of the amended returns, that such offer had been made and ruled upon, and rejected by him; or, if he could have brought it to his recollection by the use of proper effort to refresh his memory, which effort he intentionally omitted and neglected to use, after his attention had been specially called to it ' by the orders or affidavits served on him, with a design on his part, to prevent a reversal, or secure an affirmance of his judgment, the plaintiff is entitled to recover, and the amount should be $171.68. The defendant excepted as to the right to recover, and also as to the amount. The court also charged, that in determining the question whether such offer had been made, they were at liberty to consider whether the offer to prove that Francis by his negligence at the time of the injury complained of, injured the defendant’s buggy, although that of itself would not be sufficient to enable the plaintiff to maintain this action; that if the jury should find that that offer was made, it would be a circumstance proper for their consideration in determining whether the other offer had been made. This was excepted to. The judge further stated that the evidence tended, in his opinion, very strongly to prove that the offer was made, and if that was the only question, he should feel bound to direct a verdict for the plaintiff. To this the defendant excepted. The defendant’s counsel requested the court to charge that the evidence embraced in the first offer was incompetent under the ^answer. Refusal and exception. Also, that the evidence so offered was immaterial. Refusal and • exception. There are several other requests to charge, most of which are noticed in the opinion. There was a verdict for the plaintiff for $171.68.