Richard Howe vs. Harris Hosford et al., 8 Vt. 220

The opinion of the court was delivered by Willams, Ch. J.

This case presents for consideration the construction to be placed on the statute of 1832, which provides, “that whenever any civil process shall have been served, returnaable before any justice of the peace within this state, and at the time appointed for the trial, said justice, by reason of sickness or other cause, shall be unable to attend at the pldce appointed for holding the court, any justice of the peace for the same county, who could legally try a cause between the parties, may, at the time of trial, continue such cause to some time when, in his opinion, the justice of the peace, who signed the writ, will be able to attend.” It appears that Mr.

Howe, the justice who continued the cause, was interested in the same, as bail for the prosecution. The act which the justice is required to perform, in such cases, is not to be Considered as a mere ministerial act. The justice must determine as to the time to which the trial is to be postponed, and must enter on the files the reasons for which the continuance is granted. We think the obvious meaning of the statute is, that the justice who is to perform this act, must be one who could try the cause in controversy, and that a different construction would be manifestly absurd.

The legislature evidently intended that the magistrate should be one who could have taken cognizance of the suit or cause, and could not have intended to exclude those magistrates only, who could try no cause between the parties ; that is, those magistrate alone, who were within the fourth degree of consanguinity and affinity to the parties. Mr. Howe being the bail in the suit, was not such a magistrate as was authorised by the statute' to continue the cause. But this was only an irregularity in the proceedings, which the parties might waive, and unless seasonably noticed, should be considered as abandoned.

We find, on examination of the records, that at the time to which the continuance was granted, the defendant did not insist on this irregularity. This was the time when his motion to dismiss should have been made. By appearing in the suit, at the time to which the same was continued ; taking a trial on the merits; appealing to the county court, and not making any motion to dismiss the suit, until after it came into the county court, he must be considered as having waived any advantage or benefit which he might have insisted on, on account of the irregular continuance.

The judgment of the county court must therefore be reversed, and the cause remanded for trial.