Atwood v. Reyburn ( 1839 )

Tompkins, Judge,

delivered the opinion of the court.

Reyburn sued Atwood before a justice of the peace on a bond, and had judgment. Atwood appealed to the circuit court, and there filed a bill for a discovery, under the 10th section of the 4th article of the act to regulate the practice at law in courts of record — see Digest of 1835, p.462. This section gives to either party to a suit a right of discovery from the other of all matters material to the issue in such suit, &c.

The act to establish justices’ courts, &c., gives to either party the right either to have the testimony ot the other party or to swear himself, in. all cases commenced before a justice of the peace — see 17th section of the 5 th article of that act, p. 361, of the Digest of 1835. If a different rule of evidence were to be admitted in the trial of the same cause before a justice, and where it is brought into the circuit court by appeal, entirely different results must be expected, although each court, and the jury before each court, might have done its duty. The courts have always been inclined to observe the same rules of evidence where the cause is brought by appeal from a justice, that were there observed. The bill of discovery was, in my opinion, intended for suits originating in courts of record, and not for those brought by appeal from the justices’ courts into the courts of record. The circuit court then, in my opinion, committed no error in refusing to allow the bill of discovery. But the appellants wished to prove a set-off of one hundred and nineteen dollars on an account, a.sum exceeding the jurisdiction of a justice, which the statute forbids, and which the'decision of this court equally, before the statute, forbade — see sec. 9, p. 354, of Digest of 1835. In my opinion, then, the judgment of the circuit ought to be affirmed, and such too being Judge Napton’s opinion, it is accordingly affirmed.