ed until 20 minutes after nine o'clock, when the plaintiff exhibited his declaration for goods sold, and for work done, and called two witnesses, who were sworn and examined in support of his declaration. After those witnesses were examined, it then being 30 minutes after nine o'clock, the defendant appeared, and asked leave to plead the general issue to the declaration, and offered to pay all costs in the suit. The plaintiff objected, and the justice overruled the application. The defendant then offered to show a settlement between him and the plaintiff, and to prove the same by the witnesses who had already been examined. The plaintiff still objected, and the justice ruled that the defendant might cross-examine the plaintiff's witnesses in mitigation of damages, but no further.

Further evidence was introduced, and a judgment rendered for the plaintiff. The judgment was reversed on certiorari, whereupon the plaintiff sued out a writ of error to the supreme court. That court, per Nelson, J., delivered their opinion upon the question involved in the facts above stated, as follows: "In the enactments of the revised statutes relative to justices' courts, it is provided, that at the time of the first appearance of the parties before the justice, either upon the return of process or their voluntary appearance to join issue, the pleadings of parties shall be made, and the issue joined; and where both parties have appeared, an issue shall be joined before any adjournment shall be had, except in the case of a warrant. 2 R. S. 233, § 47, (p. 165, of 2d ed.) Though this section may not be deemed imperative to the extent of excluding the indulgence granted to the defendant in the cases decided under the old law, 15 John. 86, 16 id. 180, 19 id. 390, 20 id. 309, 8 Cowen, 87, 1 Wen. 147, yet such would seem to be the fair import of it; and I am inclined to think, that as it will bear this construction, it will be for the convenience of parties, and in furtherance of justice, to follow it. Most of the cases above referred to, are departures from the decision in Snell v. Loucks, 11 John. 69, which was made under the old law, and contains the true exposition of the statute, in connection with general rules and practice in the conduct of judicial proceedings. That case decided, that where the summons was personally served upon the defendant, and he did not appear on the return day and plead before the adjournment, it was afterwards too late; and he could only give evidence in mitigation of damages. The case of Sweet v. Coon, 15 John. 86, decided that the defendant may plead if he appears and offers to make his defence before the court have entered upon the trial of the merits. The defendant in that case appeared on the return of the summons, while the justice was making an entry of the plaintiff's declaration: confining the decision to the facts of that case, it is unexceptionable. In Atwood v. Austin, 16

John. 180, it was held, that if the defendant appeared at the close of the plaintiff's evidence on the trial, he should be allowed to go into his defence. Issue had been joined at a previous day, and I see no objection to that case. Then came Bowen v. Bell, 19 John. 390, which decides that a defendant is in season who appears at the day to which a cause is adjourned for the accommodation of the plaintiff or justice, and offers to plead and go into his defence, although he was personally served with the summons, and neglected to appear at its return. This case is directly opposed to Snell v. Loucks, and with great deference, in my opinion, is unjust towards the plaintiff. The defendant not appearing on the return of the summons, the plaintiff at the adjourned day was not bound to anticipate and prepare for a contested trial; and to permit the defendant to have the benefit of a trial under such circumstances, is allowing him to take advantage of his own negligence to the prejudice of another. The case of Lowther v. Crummic, 8 Cowen, 87, apparently followed. Bowen v. Bell, with the qualification that the defendant was required to pay the costs of the adjournment, and all subsequent proceedings. This mitigated considerably the hardship of the case as it respected the plaintiff, but did not remedy the whole evil; to do which, the defendant should have been required to assent to a further adjournment, as the first adjournment had exhausted the plaintiff's privilege in that respect. Lowther v. Crummie was a hard case, as the defendant appeared on the day of the return of the summons, before the plaintiff had gone away, and offered to plead, which was denied him. Had the judgment been rcversed for such refusal, I would have been better satisfied with the decision.

"To allow a defendant to come in on the adjourned day, and plead and go into his defence, even with the qualification in Lowther v. Crummie, and with the addition suggested above, would tend to encourage negli gence on the part of the defendant, and to promote delay and embarrassment as to the plaintiff. The revised statutes, 2 R. S. 233, § 46, (p. 165, 2d ed.) require that the justice shall wait for the parties one hour after the time specified in the summons for the return, unless they sooner appear. By 119, p. 246, (176, 2d ed.) judgment of nonsuit may be rendered against the plaintiff if he fail to appear within one hour af ter the summons is returnable, or after the time to which an adjournment shall have been made. The provisions of the statute are very specific in fixing the limit of indulgence, as to time, in regard to either party; but rather extend it beyond the former practice.

"From a careful consideration of the law regulating justices' courts, and especially of the provisions above referred to, I am disposed to con

struc the 47th section, so as to exact the attendance of the parties within the time limited by the 46th and 119th sections, or that they abide the consequences of a default, unless the time be extended, for good reasons, at the discretion of the justice, which, I think, he may exercise, notwithstanding the precision of these sections. The statute establishes the general rule, not to be departed from, except to promote the ends of justice. We can well suppose circumstances which would justify the justice in refusing to call the partics exactly at the expiration of the hour; his own business sometimes may not permit him to do so; he may have good reason to believe that the absent party will soon appear, &c. A reasonable discretion must necessarily, in these and like cases, be extended to the magistrate. I would approve of the qualification to the general rule contained in Sweet v. Coon, and allow the defendant to plead, if he appeared on the return of the summons before the cause is adjourned, or even after, if the plaintiff was still present, or before the plaintiff had closed his case, if he went to a hearing on the return day. The latter indulgence I would grant, because, if the plaintiff came prepared for a hearing on the return day, he must have prepared under the expectation that the defendant would appear, and therefore there could be no great inconvenience in permitting the defence. The case of Atwood v. Austin, I think unexceptionable, and am of opinion it should be observed in proceedings under the revised statutes. But the cases of Bowen v. Bell and Lowther v. Crummic, it seems to me, cannot be sustained under the present law, and contain nothing desirable to retain as general rules in the practice of justices' courts.

"The case under consideration, so far as this point is concerned, falls under one of the qualifications above specified, in which a defendant should be admitted to plead, and the defendant therefore should have been allowed to put in his plea and go into his defence."

The above case will be sufficient upon the subject under consideration. There is hardly any conceivable question that can arise, to which the reasoning of the court does not afford a ready answer. It is left, however, to the discretion of the justice, as to what will amount to a sufficient reason for delaying to call the cause beyond the hour given by statute. No precise rule can be laid down on this subject; for cases will and do arise, presenting circumstances so various, as to preclude the possibility of establishing a uniform regulation by which justices should be governed. Each case will have its own peculiarities, and the magistrate should endeavor to consult the convenience of parties, at the same time that he avoids doing any thing which may tend to the prejudice of either.

We have seen that on the return of a warrant, the defendant is actually brought before the justice;(k) that the constable, in practice also, generally notifies the plaintiff of the arrest. But if this be not done by the constable voluntarily, for which he is allowed fees, I know of no provision in the law, making it the duty of any person to give him this notice.(1) And, indeed, such a provision would sometimes be absurd and oppressive in its operation, as where the plaintiff is at his residence in a another county. The plaintiff should, therefore, be ready, and attending at his peril; or, as before suggested, (m) he should employ an attorney to appear in his behalf; otherwise, after waiting a reasonable time, (not, however, in any case beyond twelve hours,) (n) the justice ought to discharge the defendant. But, until discharged by the justice, the statute makes it the duty of the constable, to detain the defendant in his custody;(0) and should he suffer him to escape, he would be liable for the plaintiff's damages, in an action on the case. The time during which a justice ought to wait, to favor the plaintiff in his preparations for trial, (the defendant being in the mean time detained in custody,) must be regulated by the circumstances of each case. In addition to our former remarks on this subject, (p) it may be well to observe, in this connexion, that, as a general rule, the plaintiff should be prepared to try the cause, on notice being given of the arrest, or within an hour or two after that time. It is his duty to look up and notify his witnesses, while the constable is in search of the defendant, in order to be ready at a moment's warning. However, the time which ought to be allowed must obviously depend upon a variety of qualifying circumstances, as whether the arrest and notice thereof be in the day or the night time, whether the plaintiff's witnesses be at hand, or several miles off, &c. &c.; and the justice must necessarily, in these cases, possess a large and liberal discretion. The warrant, in general, presupposes an intention in the defendant to escape, or danger of the plaintiff's losing his demand in some other way, and its object would be entirely defeated, in many instances, by denying a reasonable time for the plaintiff to procure proof of his debt. On the other hand, the defendant ought not to be oppressed by one moment's unne cessary delay by the plaintiff. The practice in criminal cases, on the return of a warrant, where the justice has absolute discretion as to time, shows the large circle by which it is bounded; and, in some extraordi nary cases, the detaining a prisoner in custody for examination, more

(k) Ante, 505.

(1) Ante, 506.

(m) Id.

(n) Ante. 507.

(0) 2 R. S. 162, § 25.
(p) Ante, 507.

than twenty days, has been held lawful.(q) This, to be sure, is no direct precedent for the exercise of a similar discretion in a civil cause; but it shows that the discretion, of which we are speaking, will admit of no definite limit, within the twelve hours prescribed by the statute, and must depend upon the particular circumstances calling for its exercise. Besides, the defendant may at any time get rid of the arrest, by adjourning on security; and his very inability to do so will, in nine cases out of ten, show that the plaintiff's danger of loss by his discharge, is not chimerical. I make these remarks, to show that plaintiffs ought, in general, to have a liberal time for preparation. Defendants are frequently very clamorous about being detained, and generally the more so, where they intend to escape, or otherwise cheat the plaintiff out of his debt; and the justice will be troubled with repeated motions for their discharge; but such motions ought to be refused until the expiration of the twelve hours, or, at least, until full time is given, not only to notify the plaintiff of the arrest, but also to make his arrangements for trial. After such time has, in the opinion of the justice, under all the circumstances, expired, if the plaintiff is not ready to proceed to trial, and the defendant do not move to adjourn, he should discharge the defendant.

The justice can, in no case, give judgment in the plaintiff's favor on the return of a warrant, unless he be present in court by himself or his attorney, &c.(r) The same rule undoubtedly extends to other process.

It is the usual practice for justices to wait an hour for the appearance of the defendant, where a summons, or attachment under the non-imprisonment act, is served by copy, before issuing a warrant or summons.

SECTION II.

HOW THE PARTIES ARE TO APPEAR.

Any one may appear in proper person, except infants,(s) and corporations aggregate. (1) The former must appear by next friend or guardian;(u) the latter by attorney, appointed under their corporate seal.(v)

(9) Vid. authorities cited, 1 Chit. Cr. L. 73.

(r) 9 John. 140. But vid. post, p. 534, 535.

(s) Vid. Tidd, 69, 70, and cases there

cited. 2 John. 192. 8 id. 418. 3 id. 437. Vid. also 2 R. S. 164, § 39.

(t) Tidd, 63. Co. Litt. 66, b. (u) Tidd, 69, 70, and cases there cited. 2 R. S. 164, § 40, 42.

(v) Tidd, 63.