M'Nutt v. Johnson — 7 Johns. 18

Majority

p. 18

M‘Nutt against Johnson.

NEW-YORK,

’Nov. 1810.

Headnote

" in an action of°thea peace6 where the cause is adjourned at the request of the defendant, and security is defendant’s íptimeTsueh te* byreeognísanze, taken by the jus? tice, ora writing signed by the baiJa otherwise the undertaking tute of frauds, eannotbe made table.

IN error on certiorari, from a justice’s court.

Johnson sued M'Nutt, before the justice. The summons was returned personally served; and the defend-_ ant below not appearing, the plaintiff declared, that m , , , , . , f October, 1807, Nathan Reynolds was brought before John Coles, Esq. a justice of the peace for Montgomery county, on a warrant to answer to the plaintiff below, in a Plea trespass on the case, to his damage 25 dollars 5 t'nat after joining issue before the justice, Reynolds dejo v • v _ manded an adjournment of the cause, until the 3d ■ of October, 1807, and offered Mc'Nutt as bail, who became bail, and undertook that Reynolds should appear and stand trial, and on default thereof, undertook pay the debt and costs. That Reynolds appeared ; but before judgment was rendered, departed from the court and absconded from the county; that judgment was given in that suit for the plaintiff, for seven dollars, besides costs ; that execution w’as issued and returned, .that neither the goods nor the body of Reynolds were to be found; whereupon an action accrued, &c. &c.

The plaintiff below produced a copy of the judgment, under the hand and seal of Justice Cole, before whom the action against Reynolds was tried, setting forth the judgment in favour of the plaintiff below, against Nathan Reynolds, the issuing execution thereon, and the return by a constable, that neither the property of R. nor his body were to be found. The certificate of the judgment, under the hand and seal of the justice, was accompanied with a certificate, sealed by the clerk of the county, that John Cole was a justice of the peace at the time the judgment was rendered.

A witness testified that he was present at the trial be

p. 19

tween the plaintiff below and Nathan Reynolds, aiid heard the defendant below say, that he was bail for Reynolds ; that he should appear and stand trial on the day to which the cause was adjourned ; and that Reynolds did appear, but departed the court before trial was determined. Upon this evidence, a judgment was given for the plaintiff below.

The judgment is erroneous. The defendant not being present at the trial, cannot be deemed to have waived any objection to the competency of the proof; it ought, therefore, to have been legal. By the 7'th section of the 25 dollar act, (24 sess. c. 165.) to entitle the defendant to an adjournment, under the circumstances existing in the original cáse, the defendant is to give sufficient security to appear on the day, &c. and in default of such appearance, to pay the debt and costs, if judgment shall be given against such defendant. The particular kind of security is not designated ; but it must be either a recognisance taken by the justice, or at least a written engagement; otherwise, it comes directly within the statute of frauds; here there appears to have been neither.

Judgment reversed.