Joab Holland and Ira Cutter vs. Orra Osgood, 8 Vt. 276

The opinion of the court was delivered by Redjtield, J.

The question of the sufficiency of the plea in abatement arises on the construction of the second proviso of the act of 1832, giving one magistrate authority to continue a cause returnable before another, in case of bis absence, “ by reason of sickness or other cause.” The proviso is, that the justice shall enter on the files “ the reasons therefor,” at the time of such continuance, The terms used in the statute to define the occasion when the second magistrate shall have authority to assume jurisdiction of a cause not returnable before himself, imply clearly, on any rational construction, that he shall do it on finding the justice before whom the writ was made returnable absent.

There must be some definite tangible point, which shall transfer the jurisdiction of the cause from one tribunal to another, .and this can be nothing but simply the absence of the first magistrate. In that casé, it is the du ty of any other justice of the peace present, to take cognizance of the cause. It will not do to say that he must inquire into the reason of the absence before he takes jurisdiction of the cause, for this will involve the absurdity that .he will be adjudicating a cause of which has never yet obtained or assumed 'jurisdiction.

The right of primary jurisdiction is never made to depend upon the mere judgment or discretion of the tribunal, but always rests upon some definable criterion, equally apparent to all. In this case', it is most evidently “ the absence of the justice before whom the writ is made returnable,” which gives any other justice present jurisdiction of the cause for the mere purpose of determining the-question of continuance.

If the subscribing justice be absent, and another justice take cognizance of the cause for the purpose of determining the question of continuance, his judgment upon that' question, like that of any other tribunal upon a question of continuance, is final and conclusive, and not subject to be reconsidered and reversed by any other tribunal. These questions always rest in the discretion of courts, and' as sucllj ai>e never grounds of error or subject to revision. It is made the duty of the justice in' such case to inquire into the “reasons of the absence” of the first justice.

What shall’ be a sufficient reason for the absence, to justify a continuance, is no where defined, except “ sickness or other cause.” By this of course is intended “ other reasonable cause;” but the second magistrate, after taking jurisdiction of the cause, is to judge of the reasonableness of the cause ; and he will of course determine this question in his own way, upon such testimony as-he may see fit to require. He may consider stress of weather, sickness of one’s family, absence on a1 journey sufficient or insufficient reasons for a continuance of the' cause, but his determination is final.

And we do not apprehend' any great injustice is likely to arise from such a construction, if the justice be absent', it' is presumable hé is absent for some good reason, and should be so taken, unless the contrary is made to appear, or at least some suspicion of that character raised. It is not-supposable that in every case the precise reason of the absence can be known. In case of absence on a journey, it will evidently be impossible to know more .than that the first justice is absent on a journey, and this is nothing more than “ absence” simply.

Indeed absence is all that the magistrate can require in practice to be proved; and front this and the attending circumstances, he deter-* mines whether the absence is for reasonable cause, or in the words of the act, for any cause,- or without cause. If the former, the cause should be continued — if the latter, it should not. If the cause is- ordered to be'continued, this shows that the second justice judged the absence of the subscribing justice was for cause, and his determination being final, it cannot be made the subject matter of a plea in abatement.

But, it is argued’ that as the second proviso requires the .justice to enter- those reasons of absence, the whole proceeding is void unless this is done. That proviso evidently was intended only to direct the mode of keeping the record of this anomalous proceeding. If the justice failed to-comply with the requirements of a statute' merely directory as to the mode of proceedings, or preserving his records, it was never held that the proceedings become ipso facto-void.

Statutes directing the mode of proceedings by public officers, have always been- treated as advisory,- and' not intended to invalidate the vitality of the proceedings themselves, unless expressly so provide^. And although the statute evidently intended that the second magistrate should enter the reasons of the absence upon the files, yet it could not have been expected he could perform impossibilities. He could only be expected to be as definite in the statement of reasons as facts within his ,knowledge would warrant.

In a case where no certain evidence of the reasons of absence could be had,- and it. was left to presumption, as above stated, it could-not be very material that the second justice should state “ he presumed the absence to be from some'good cause 5” for this would Be fully implied in the fact of his continuing the cause for the absence. This then being a necessary implication' from the'words used, and the act- done by the justice,- it is in effect expressed or- “ entered upon the files.” And in proceedings of this character, too much precision ought not to be required.

The maxim, qui hcerel in iltera hceret in cortice, applies here with great force. For both reasons then we .think the plea in abatement was well held to he insufficient. If the second justice had been “one who could not judge1 between the parties,” or the first magistrate had been present, w’hile another continued his cause, these things would have rendered' the proceedings in the first case voidable by plea in abatement,- and in the second case void as a discontinuance of the action. The question raised in' regard to the charge of the court is clearly with the plaintiff.

The defendant having taken the brick after plaintiffs and Johnson had rescinded their contract, although this was not known to both plaintiffs, it could not in any sense be considered a delivery to Johnson. For, first, the defendant had ceased' to be Johnson’s servant — secondly,- he took the brick on his own account, and put them to his own use; and, thirdly, the contract between plaintiffs and Johnson was at an- end. This was' clearly a conversion of the property by defendant, as charged.

The attempt to show that the property in' the brick vested- in Johnson-, at the time defendant separated them from the kiln and took possession of them, wholly fails. This is in no sense analogous to the case of goods delivered to a.carrier by direction of the consignee, where it is held- he must bring the action. Nor is it the ease of the abuse of a license in fact. It is an attempt to refer

an act to one motive which pr'oved to have been done for another, — to use a license to cover

an act, clearly not within the license,- and this after a revocation of. the license and a rescinding of the contract.— This- is clearly not allowable, and in no sense can the defendant claim this favor for the mere purpose of defeating this action, when upon his own admission be is clearly liable to some one in trover for converting the property; and it is quite immaterial to him, except so far as costs are concerned. If it were admitted that the plaintiffs might have elected to treat this as a sale and delivery to Johnson by his servant the defendant, they clearly were not bound to treat it so, and might pursue defendant as they have. Judgment of county court affirmed.