Sprague v. Shed — 9 Johns. 140

Majority

p. 140

Sprague and another against Shed.

NEW YORK,

May, 1812.

Headnote

A warrant issued by a justice of the the plaintiff did not apfustice gave the plaintiff forthe amount ota note given by the defenwhich °a re-judgment was endorsed, and which was livered to the thkd'persom feat the plaintiff not appearing, nor any person in wasadiscoiitisuit” and the judgment, erroneous. ’

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

Shed brought an action against James and Adolphus Sprague, a promissory note, for 10 dollars, dated the 28th September, 1810. The suit was by warrant, which was returned, “ cepi corpus, and the plaintiff notified.” The justice stated that he understood by this return of the constable, that he had the defendants in custody. The plaintiff did not appear, nor any person in Jjjg behalf. The note was delivered to the justice by some per s on whose name was not mentioned. On the note was endorsed a request by the defendants to enter judgment against them, of the defendants, Adolphus, appeared and objected to having judgment entered, and demanded a trial; but the justice refused, considenng him precluded by the endorsement on the note, and gave judgment against both the defendants, being, its he said, satisfied by comparing the hand-writing in the note, and the endorsement, that they were the same.

This judgment cannot be supported; although probable justice has been done. The, proceedings were contrary to the established rules of law applicable to justices’ courts. The plaintiff not appearing himself, nor any person for him, was a discontinuance of his cause; and the justice had no authority to enter judgment. Although the case is not precisely within that of Martin v. Moss, ( 6 Johns. Rep. 126 .) here being process issued against the defendants, still it comes within the principle of that case, because, by the default of the plaintiff, in not appearing, his cause was out of court, and, of course, no suit was pending. But admitting the plaintiff to have been in court, the justice should have required proof of the note or confession, and could not give judgment on a comparison of the hand-writing of the endorsement with the signatures of the note, especially as he had no evidence that the signatures to the note were in the handwriting of the defendants.

Judgment reversed.