
    Tifft vs. Culver.
    Though a justice improperly adjourn a cause pending before him, yet if the par* ties appear at the adjourned day, and proceed to trial, they will be regarded as having waived the irregularity.
    After a trial in a justice’s court, without a jury—the actioh being for a wilful trespass in overturning the plaintiff’s wagon—judgment was rendered against the defendant thus: “for $3,37, together with treble damages, making in ally $5,89 for damagesy and $2,66 costs—whole judgment for damages and costsy $8,55.” Held, that the judgment, though informal, was not erroneous, as it merely imported an allowance on the part of the justice of something beyond the damage which the plaintiff had actually sustained, in a case where feuch allowance was proper.
    In trespass for an injury wilfully committed, damages may be given by way of punishment to the defendant, beyond those which the plaintiff has actually sustained.
    Error to the Rensselaer C. P. Tifft sued Culver before a justice, and declared in trespass, for wilfully overturning his wagon. After issue joined, the cause was adjourned on the defendant’s motion to the 9th of May, which was Saturday, at 6 P. M. The parties appeared and the plaintiff then proved that one Casey, who was a material witness for the plaintiff, had been duly subpoenaed, and neglected to attend. The justice thereupon issued an attachment against Casey. This was about 9 o’clock in the evening. At about eleven o’clock in the evening the plaintiff called and examined a witness. At half past 11, the constable returned the attachment, and testified that he could not find Casey. The defendant thereupon asked the justice to dismiss the suit on the ground that the attachment had been issued 3 or 4 hours. Motion overruled. The plaintiff then requested another attachment; whereupon the justice, in consequence of the lateness of the hour on Saturday night, concluded that there could be no more proceedings in the cause that night, and at his own instance adjourned the cause until the next Monday morning, at 9 A. M., and issued another attachment for the absent witness. On the adjourned day both parties appeared, the constable brought in Casey on the attachment, and the trial proceeded. It was proved that the defendant in the night time laid hold of the plaintiff’s wagon and overturned it. The wagon was broken in several places, and the witness estimated the necessary expense of repairs at $3,37. The justice, as the return "states, rendered judgment against the defendant “ for $3,37, together with treble damages, making in all $5,89 for damages, and $2,66 costs—whole judgment for damages and costs $8,55.” On certiorari, the C. P. reversed the judgment. The plaintiff sued out a writ of error.
    
      Kellogg Strong, for the plaintiff in error.
    
      D. L. Seymour, for the defendant in error.
   By the Courts Bronson, J.

It is not necessary to determine whether the justice was right in adjourning over from Saturday night until Monday morning. The irregularity, if there was one, was waived by the defendant, by appearing and proceeding with the trial on Monday. (Durham v. Heyden, 7 John. R. 381 ; Willoughby v. Carleton, 9 id. 136.) By a treble damages,” the justice seems to have meant nothing more, than that he allowed something beyond the damage which the plaintiff had actually sustained by the injury; and the whole amount of damages, $5,89, was but a very moderate punishment for this wilful trespass. I think the judgment of the C. P. should be reversed, and that of the justice affirmed.

Ordered accordingly.  