Wood v. Fletcher

It is contended, that the justice of the peace, before whom this case was commenced, was of counsel with one of the parties, and so disqualified to decide it. Whether this objection, if well founded in point of fact, could be of any avail here, need not be decided. 5 Mass. Rep. 90.—12 John. 336.—13 Mass. Rep. 340.—2 John. 385.—19 ditto 172. Because we are of opinion, that the making out of the summons was not the peculiar duty of.counsel. The clerks of this court cannot be counsel, and yet they constantly piake out writs of scire facias, executions, subpoenas. and writs of review. The summons in this case was iu the nature of judicial process, and the justice might, with*63out any impropriety, make it. This objection has no foundation in fact, and must be overruled.

It is also objected, that John Jl. Fletcher was not duly enrolled ; because enrolled by the name of John Fletcher. But he appeared at the muster, and answered to the name of John Fletcher ; and it seems to us to be too late now for him, or his guardian, to make this objection.

Judgment for the plaintiff.