— The action below, was an action on the case, brought by Chidester against Owen, to recover damages, of him for not delivering a riding chair, which he, Chidester, had purchased of him, and paid him for. The first error assigned, is, that the action is misconceived. It appears to me, that this is the proper action in this ease. The cause of action does not arise on a simple contract for the payment of money, but on a breach of contract in not delivering the chair, and therefore, does not come within the act requiring actions arising on simple contract for the payment of money, when brought in justice’s courts, to be actions of debt. — The next, is the too common blunder of the justice putting down $$1 50 for juror’s fees, instead of $$1 44 ; but the Court has refused to reverse for this cause. The last objection to the proceedings below, is, that the justice admitted illegal [*] evidence, and rejected legal. As to this, the record is wholly silent. But I find an affidavit among the papers in the cause, made by a by-stander in the justice’s court, stating that one of the witnesses, to wit, Jacob Trowbridge, was objected to, but on what ground, the affidavit is silent. It is unnecessary to inquire into the regularity of the taking the affidavit, because it comes to nothing. We must be informed of the ground of objection to the legality of a witness, before we can judge of the propriety or impropriety of his admission. On the whole, I cannot perceive any substantial objection to affirming the judgment.
The other Judges concurred.Judgment affirmed.