— I think there are two fatal errors upon this record, and the proceedings accompanying the same. The plaintiffs bring this action upon a note of hand given by one Doan to the defendant, and by him, as they pretend, assigned to their intestate, John C. [*] Hummell. Whereas, upon inspection of the note, (handed up by the justice,) no such assignment appears. The name of John Snyder, it is true is endorsed, and the plaintiffs being in possession of the note, might lawfully have written over it, a proper assignment; but till this is done, I think they could not lawfully recover.
In the second place, the defendant did not appear at the trial, and the justice, as he states, notwithstanding, went into the hearing of the matter. But he could have heard only the plaintiffs themselves, for no witness appears to have been sworn. And as to matters which the law requires to be entered on the record, quod non apparet non est. Besides, the subject matter of the controversy not being a matter of record, it was capable of proof by no other means than the testimony of witnesses. The justice, therefore, according to the directions of thé act establishing these courts, has not proceeded to hear the cause in a lawful manner. — In my opinion, the judgment cannot stand.
Rossexx, J. — Concurred. Pennington, J.— The state of demand is too vague to form the ground work of an action. A judgment founded thereon, and that too without proof, cannot be supported.
Judgment reversed.