Willard v. Sperry — 16 Johns. 121

Majority

p. 121

Willard against Sperry.

Headnote

A plaintiff can-entire^contract k£nttb| of money, ex-amount cognizable before a justice of the ?eraf’ smaller bringa'distfnct just°¿be&rfor each: and if an entire demand has been divided m this manner, and ders judgment (iff in each'of the actions, all the judgments ”d* be rever* an\trk"hment ^sued^out^of Court, stating merely that the constable cmtahTgoods™ them.^'errofur(he'r be stated, that a copy of the attachment had been left at the dwelling last place of defendant. * e

IN ERROR, on certiorari to a Justice’s Court. The defendant in error brought an action in the Court he-low against the plaintiff in error, which was commenced by attachment. The constable, who executed the attachment, merely returned, that he had, by virtue thereof, levied upon / ’ . , „ , , r, certain articles, enumerating them. On the return day the defendant did not appear, and the plaintiff below declared on a promissory note drawn by the defendant for 125 dollars, payable in eight days after date. There were, also, four other attachments, in suits between the same parties; 7 *■ ’ and all the five were returnable at the same time, and the plaintiff declared m all, upon the same note. The five causes were heard ex parte, and the Justice rendered judgment in each cause, for 25 dollars, with costs.

The judgment is erroneous. The note forming one indivisible contract, cannot be the foundation of several suits. It is a usurpation of jurisdiction, and a justice might, if this be tolerated, take cognizance of con- , , , tracts to any amount.

There is, besides, error in the proceedings in regard to the return of the attachment. The 24th section of the act for the recovery of debts to the value of twenty-five dollars, enacts, “ that it shall be the duty of the constable to attach 7 J and keep the goods, &c. and to leave a copy of such at- , 1 ° rv tachmentat the dwelling house, or other last place of abode of the defendant; and shall return the same to the justice who issued the same, and the manner of executing the same, &c.’’ In this case the return merely states, that the constable had seised the goods, without stating that he left a copy, &c. To bring a defendant in default, so as to justify a trial and judgment ex parte, it must expressly appear, that the process of attachment has been served, by leaving a copy at the dwelling-house or other place of abode of the "

p. 122

defendant. For aught that appears, he might have left a fam¡]y; an(j an attorney to defend against all claims.

On both grounds, therefore, the judgment must he reversed.

Judgment reversed.

The judgments rendered by the Justice, in the other actions upon the same promissory note, were also reversed forithe same reasons.