Elligood v. Cannon ( 1844 )

^a Memorandum. — In the vacation previous to this term, to wit: on the 22d of July, 1744, Judge Layton resigned his office of Associate Judge of the State; and the Hon. David Hazzard, of Sussex county, was on the 10th of December, appointed to succeed him. The exceptions to the judgment in this case were: —

1. That the place of appearance was uncertain. The summons commanded the constable to "summon John H. Elligood to appear on Monday, the 29th of January inst., at his office at Bridgeville, before Wm. B. Wilson, one of our justices, c. c." 2. That judgment was rendered by the justice, by default, against the said John H. Elligood, without first having heard the allegations and proofs of the plaintiff. The record stated that "the defendant not appearing, the constable is sworn to the service of the aforesaid summons; and after investigating the plaintiff's demand, judgment is rendered for plaintiff for $18 32 debt, and sixty-nine cents cost, by default, January 29, 1844." 3. That John H. Elligood was at the rendition of judgment, afreeholder of the county, and was treated as such by the plaintiff below, by suing out the writ of summons; and that execution was therefore irregularly issued without a stay.

By the Court.

The first exception is insufficient. The grammatical construction of the sentence would produce the uncertainty of place contended for; but the real and apparent meaning of the summons, is to appear at the office of the justice named.

The second exception is fatal. The act of assembly requires the justice, before giving judgment by default, to hear the allegationsand proofs of the plaintiff; and to sustain such a judgment, this must appear either by express entry of the justice, or by other matters in the record. And this is an important matter. The justice ought to require all the proof which the nature of the case demands, whether the defendant appears or not. The default of the defendant cannot dispense with any such proof. In an action on a book account, as this is, the plaintiff's book of original entries ought to be produced and sworn to. Nothing of this kind appears by the present record. The entry is that the justice investigated theplaintiff's demand; it ought to be that he heard the allegationsand proofs of the plaintiff.

The third exception also would be sufficient to set aside the execution. The plaintiff treated the defendant as a freeholder by making his first process a summons; and he was bound to give the legal stay of execution, or make oath against the defendant's freehold.

Judgment reversed.