It is to he inferred from the return, that Sweet, one of the defendants, when he did appeal-, claimed the right of defending the cause, on its merits, but was precluded by the justice, on the ground that he had been called, and his default entered. In this the justice erred. He had barely commenced the trial; had not yet finished noting down the plaintiff’s declaration, and could not be said to have entered on the merits of the cause. The act (1 N. R. L. 388.) only directs, that if the defendant does not appear to a summons personally served on him, at the time and place appointed in such summons, the justice shall then, or at such other reasonable time as he may appoint, not exceeding six days, proceed to hoar the proofs and allegations of the parties. The act does not speak of any default being entered which can preclude the defendant from making a defence. The defendant was, then, in season to answer the
Judgment reversed.