OPINION OF THE COURT — by the
Hon. POWHATTAN ELLIS.The defendant below, assigns for error the following.
First, there is no issue joined between the parties in the superior court according to the provision of the statute in such case made and provided.
Secondly, there is no judgment by default or writ of enquiry awarded previous to the rendition of the verdict. This case came up to the' superior court of Adams county, by appeal from a justice of the peace. And I *108find by a reference to the third section of the act of the 27th December 1814, Turner’s Digest p. 317, the law provides, that any person aggrieved by the judgment of any justice of the quorum, or of the peace, may within five days thereafter appeal to the next superior court setting for his county; and in all cases where the sum does not exceed twenty dollars, the trial shall be by the court without the intervention of the jury, and in cases where the sum claimed, exceeds twenty dollars, the said court shall try such appeal de novo as any other cause in said court is tried at the first term, on an issue to be made up at or before the trial. From an inspection of the record, we discover a declaration in the usual form, but no plea, judgment by default, or writ of enquiry awarded; which according to the former decision in this court, precludes the court from calling a jury to pass upon the rights of the parties, and is in express opposition to the statute regulating proceedings upon appeals from the decisions of justices of the peace.
Let the judgment of the court below be reversed, and a venire de novo he awarded.
Judges Hampton and Winston concurring.