The justice returns that he adjourned the cause for ten days, for the plaintiff’s benefit, and that he felt himself warranted in doing so, because the defendant applied for an adjournment. He does not return what adjournment the defendant sought, nor that the defendant consented to the *341postponement for so long a period. On the contrary, it would seem that he acted upon the idea, that the defendant having invoked the exercise of his power to adjourn, there was no limit to the discretion vested in him in fixing the time. I think he erred in this, and that he could not, without express consent, have gone beyond the .period fixed by statute. It nevertheless appears by the return, that the defendant did not object. It may be that he was not in strictness bound to object, and that he was quite willing that the justice should lose jurisdiction in that way, leaving it to the plaintiff to protect himself by raising the objection; but I am not willing to encourage an appeal founded upon such grounds, where the defendant, by his seeming acquiescence, encouraged the belief that he consented to the adjournment.
In the subsequent adjournment, however, I think there was manifest error. Neither party consented to any farther adjournment. I agree with Judge Dalv, that there was no legal objection to a trial on the day to which the adjournment was had, founded in the so-called election, or taking the vote of the citizens npon the amended charter, (7 Hill, 194,) and, therefore, the cause should have been tried on that day. It does not appear that the plaintiff appeared at all on that day; nor that the defendant attended before the justice, or otherwise, except that his counsel came and informed the clerk of the court that he should not appear.
I think the justice had lost jurisdiction and could not proceed in the cause the next day, and that the judgment should therefore be reversed.
Ingraham, First J., concurred.