Chittenden v. Catlin , 2 D. Chip. 22 ( 1824 )

Aikens J.

delivered the opinion of the Court.

The error specially assigned in this case, and that on which the plaintiff relies, is that the County Court erred in deciding that the declaration and the matters therein contained, were sufficient in law for the said Guy Catlin to have and maintain his said action against the said Truman Chittenden.

In support of the error relied on, it has been urged by the plaintiff in error — 1st, That there is no such process known in the law as is set forth in the declaration; and that, therefore, all the proceedings upon it were coram non judice. And that the proceedings before the Justice, being not of common law jurisdiction, ought to have been set forth in the declaration at large, that it might have been seen whether the Justice was acting within the limits of his authority.

By a recurrence to the 7th section of the statute regulating conveyances, 1 Vol. Stat. 191, it will be seen that the statute not only authorizes such a proceeding, but expressly denominates it (with what propriety it is not now to be determined) as it is denominated in the declaration, a process to compel the acknowledgement of a deed. There is no necessity for greater strictness in pleading in this than in every other case predicated upon a record. In every such ease it is material that the facts should'be pleaded with a prout paiet per recordum. If the Justice has acted within his jurisdic- * tion, it is to be taken advantage of on oyer. It would be not mere- ,, . „„ , ly unnecessary but inconvenient and highly improper to fill u p the declaration with a transcript of the whole proceedings in the case.

2. — It is insisted, that, as it does not appear from the declaration that the party claiming the appeal ‘was recognized with the plaintiff in error for the prosecution of the appeal, the declaration is for that cause, fatally defective. The words of the statute are “ the party claiming the appeal, first becoming rec-ognised with sufficient surety, in such sum as the Justice shall direct to the adverse party, to prosecute his appeal to effect, as is by law directed in civil cases.” But the law directing the taking of recognizances for the prosecution of appeals in' civil cases (1 Vol. Stat. 53) is in its terms, as imperative upon the party to enter into the recognizance as in the clause above cited. That statute has received a construction which is not now to be shaken,, and which must govern in this case. To give it the construction contended for, would be to stick in the letter, to the prejudice of appellants, without the possibility of any advantage to appellees. The judgment of the County Court is therefore affirmed; and this Court further adjudge to the defendant in error interest on the judgment below, as damages for the delay and single costs.