— This action was brought before Daniel Van Riper, Esquire, one of the justices of the peace for the county of Bergen, and from his judgment there was an appeal to the Court of Common Pleas of that county.
[+] The reasons for reversal chiefly relied upon are, that there was no copy of accounts or state of demand filed with the justice, and that he refused, notwithstanding, to nonsuit the plaintiff; and in the second place, that the Common Pleas proceeded to hear witnesses and to affirm the justice’s judgment, without such copy of accounts or state of demand.
John G. Macwhorter, for plaintiff.It is true that a copy of accounts comes up with these proceedings to this court, but there is no mention of it in the transcript of the justice’s docket, nor of the time of filing, nor, indeed, is it marked as filed, at [73] all. For aught that appears then, (and we can supply nothing), no state of demand was filed on the return day of the summons, or in any way exhibited against or shown to the defendant. He was therefore entitled to this motion of nonsuit against the plaintiff. But this, the justice refused; and because there was a legal demand filed, but because the boy was under age. A strange unintelligible reason for refusing a nonsuit. The justice, I think, was manifestly in an error. Nor do I see how this is cured by the judgment of the pleas. They are to proceed upon the same documents, &c., as the justice did. And they upon these documents have affirmed the judgment. I think the proceeding is wrong in substance. The party is condemned without having seen, so far as appears on the record, the charge against him.
Judgment must be reversed, as it appears to me.
Rossell, J. — Concurred.
Pennington, J.— As I am a kinsman of Mr. Sandford, one of the parties, I must decline giving any opinion in this cause.
Judgment reversed.
Explained in English v. Bonham, 2 Harr. 350.