SECTION VI. HOW TO APPOINT A GUARDIAN FOR THE DEFENDANT.(8) If the defendant select a guardian, he appears before the justice on the return day of the process, mentions his choice to the justice, and his nominee is then to sign an agreement in the following form : FORM OF CONSENT TO BE GUARDIAN FOR AN INFANT DEFENDANT. Richard Roe ads. James Jackson. Before RANSOM COOK, Esq. Justice of the Peace. SARATOGA COUNTY, ss. I consent to be the guardian of RICHARD ROE, an infant, the defendant in the above entitled cause. September 1st, 1840. DANIEL FENN. The said DANIEL FENN is accordingly appointed. September 1st, 1840. RANSOM COOK, Justice of the Peace. The same form of consent and appointment may be used, if the defendant do not appear on the return day of the process, or if he refuse or neglect to nominate a guardian. In addition to the above entry of appointment by the justice, he should note it in his docket. The prochien ami, or guardian, is not authorized to release a witness, in order to render him competent.(t) (s) 2 R. S. 164, § 42. Vid. Penning. (t) 2 Stark. R. 41. on Small Causes, 204. CHAPTER VI. Of Pleading in a Justice's Court. SECTION I. OF PLEADING IN GENERAL, AS APPLICABLE TO THIS COURT. THE parties having properly appeared, the next subject of consideration is, the pleadings in the cause. It is hardly necessary to mention that, by the pleadings in a suit, is not meant, as by many people it is understood, the arguing or advocating the cause before the court; but the allegations of the parties, briefly setting forth the cause of action on the part of the plaintiff, and the defence on the part of the defendant, which, in the supreme court and courts of common pleas, are drawn out with great exactness and perspicuity, beginning with the declaration on the part of the plaintiff, followed by the plea of the defendant, the replication of the plaintiff, the rejoinder of the defendant, and so on to a surrejoinder, rebutter, and surrebutter, until an issue is taken, that is, a material fact is affirmed on one side, and denied on the other, which fact the jury is called on to try, by which means certainty is attained, and abundance of useless litigation shut out of the controversy. (a) There can be no legal objection to this mode of proceeding in justices' courts, in case the parties prefer it. But as the suitors of the court, and indeed the justices themselves, are presumed, in a large majority of cases, to be plain people, unacquainted with legal learning, pursuing a right in matters of so small concern as not to afford the aid of professional men, the proceedings of these courts are calculated on a plan of simplicity, at least so much so as to dispense with that legal formality, which would render professional abilities necessary in making out the demand on one side, or the defence on the other. (b) And hence, under the hand of our supreme court, the tribunal where the judgments, in the court of which we are treating, could formerly alone be reviewed, a system of pleading has grown up, and been established in relation to the latter, which, although corresponding in its great and substantial outlines with that of the common law courts, would look, in the eye of a lawyer, like the being of another species, from the total absence of form, and in many instances of the semblance of form. Justices' courts are not courts of record, and do not proceed according to the course of the common law ; (c) and so far as their powers are concerned, they are confined strictly to the authority given them by the statute; they can take nothing by implication, but must show the power, which they exercise, expressly given them in every instance. (d) The supreme court will, moreover, require their compliance with the forms prescribed by the statute; and if they have been departed from, and are not waived or cured by the statute of amendments, the proceedings cannot be supported. (e) These proceedings, however, so far forth as regularity and form are in question, will be reviewed with liberality; and, in the pleadings, technical nicety or legal precision is not required, but it will be sufficient, if there appear a good ground of action within the justice's jurisdiction, and that the merits of the cause have been fairly tried.(f) A court of general jurisdiction is presumed to have acted, in each particular case, by competent authority, and its records are evidence not only of its acts but of its jurisdiction. But the rule is different in relation to inferior courts; their jurisdiction must always be shown.(g) This disregard of form in the proceedings of justices' courts, is only when the pleadings come up for review before the supreme court, or courts of common pleas, on certiorari, where no objection was made to their form or substance in the court below. Where this is the case, almost any thing will serve the description of pleadings, provided it appear to the court that the merits have been fairly tried. But greater accuracy of pleading may be insisted on by the parties, while in the court below; and not only a lack of substance, but even of form, may be objected to, as we shall see hereafter, by demurrer, which it would be error for the justice to disregard. Thus, a defendant may demur specially to a declaration for not stating the day(h) on which the cause of action arose, and (c) 1 John. Cas. 20. 3 John. 429. (d) 1 John. Cas. 20. id. 228. Caines, 190. id. 594, n. a. 3 id. 152. (e) Id. 2 Caines, 134. 1 (ƒ) Vid. 1 John. Cas. 20. 1 Caines, 594, n. a. 3 id. 152. id. 174. id. 187. id. 240. 5 3 John. 436. 10 id. 104. (h) 14 John. 369. Vid. 2 Cowen, 437, 438, and n. a. 3 Wen. 75. 12 id. 375. so, I presume, for omitting to allege the county within which it arose, though both are mere formal objections. Should the party defendant plead to such a declaration, it would be a waiver of the objection as to form, and so would an answer over to any other pleading. After an issue of fact joined in a justice's court, the only question which can afterwards arise upon the pleadings in the same court, and before its removal by certiorari or appeal, is, whether the proofs exhibited in the course of the trial are warranted by the pleadings interposed by the parties. This objection must always be made in the court below, or it will not be available on certiorari ; (i) but where no objection is made to the form or substance of the pleadings, or a variance between them, or the proofs offered or received, every necessary averment which is omitted in the pleadings, will be intended to have been supplied by proof, unless the contrary expressly appear upon the justice's return, and every variance will be intended to have been waived.(j) SECTION II. OF THE PROPER PARTIES TO THE ACTION. 1. OF THE PARTIES IN AN ACTION ON CONTRACT. WHO MUST BE PLAINTIFF IN AN ACTION ON CONTRACT. 1. Every action on contract, must be brought and carried on, in the name of the person to whom the engagement violated was originally made, unless it is transferable, as in the case of a jail bond or promissory note, &c. in which case, where the contract is assigned or transferred, it may be brought in the name of the assignec, endorsee, &c.(k) Where the contract has been assigned, the legal interest remains in the assignor, as trustee, in whose name, or in the names of his legal representatives, the action must be brought; except where the assignee is authorized to sue in his own name in the cases above mentioned, or the like, or where the debtor has expressly assented to the assignment, and promised to pay the assignee; an implied promise not being sufficient.(/) And the en (i) 3 John. 436. (j) 1 John. 276. 2 id. 210. 3id. 436. (k) 1 Chit. Pl. Springfield ed. 1837, p. 2. Grah. Prac. 2d ed. 90. (1) Vid. Grah. Prac. 2d ed. 90, and the cases there cited. Vid. also ante, 61, 62. 1 dorsee of a note, negotiable by the law of this state, may sue upon it, though it were made in a state where it was not negotiable by law.(m) A mere agent or attorney cannot maintain an action in his own name, though the engagement be made to him as the agent or attorney of another; but he should in all cases, sue in the name of his principal, (n) and this though the defendant be ignorant of his acting as agent ;(o) unless he have a beneficial interest in the contract, in which case, either he or his principal may sue.(p) An unincorporated company cannot sue in the name of their trustees ;(7) but an action to recover back a bet upon a horse race, is properly brought in the name of the one who made the bet, though he acted as the agent or depositary of others.(r) Where a contract is made with the overseers of the poor, the action must be brought in their own name for a violation of it; and they are not, for this purpose, a corporation, so that their successors are able to maintain an action in their own names.(s) 2. When the sum of money or damages are due to several persons jointly, they must all be named as plaintiffs in the process and declaration;(t) and this, whether they sue in their own right or in the right of another, as assignees, trustees or the like; (u) but a dormant partner, although interested, need not be joined ; (v) and if too many or too few be made plaintiffs, the action will fail at any stage of the proceedings, on objection duly made.(w) 3. But if one or more of such joint claimants should die, the action must be brought in the name of those who survive,(x) without joining the representatives of the deceased.(y) 4. If the person who is alone entitled to the claim die, his executor or administrator must sue for it.(z) (1) (1) The assignee or assignees for a valuable consideration of any bond, note, or other chose in action, if the assignor be dead, and there be no executors or administrators appointed upon his or their estate, or if such executors or administrators have no interest in the things so assigned, or shall refuse to prosecute for the same, may sue and recover in his, her, or their own name or names, upon such bonds, (u) 1 Wen. 470. (v) 4 id. 628. Vid. 3 Cowen, 84. 5 id. 534; ante, 88. (w) 16 John. 34. 1 Chit. Pl. Springfield ed. 1837, p. 9 a. (x) Id. 20, 21. Vid. 2 John. Cas. 374. 1 John. 34. 1 Dall. 250. 4 id. 354. 2 id. 65, 66, n. 5 Serg. & Rawle, 86. Grah. Prac. 2d ed. 90. (y) Id. ibid. (z) Id. ibid. |