9 Johns. 140 | N.Y. Sup. Ct. | 1812
This judgment cannot be supported; although probable justice has been done. The, proceedings were contrary to the established rules of law applicable to justices’ courts. The plaintiff not appearing himself, nor any person for him, was a discontinuance of his cause; and the justice had no authority to enter judgment. Although the case is not precisely within that of Martin v. Moss, (6 Johns. Rep. 126.) here being process issued against the defendants, still it comes within the principle of that case, because, by the default of the plaintiff, in not appearing, his cause was out of court, and, of course, no suit was pending. But admitting the plaintiff to have been in court, the justice should have required proof of the note or confession, and could not give judgment on a comparison of the hand-writing of the endorsement with the signatures of the note, especially as he had no evidence that the signatures to the note were in the handwriting of the defendants.
Judgment reversed.
