Eaton v. Morgan

1 Tapp. Rep. 77

Opinion

President.

The section of the statute which has been read and relied on, cannot be construed to mean more, than that the defendant shall be considered as appearing at the return of the summons, so that a declaration may be filed against him. This law places a defendant on a summons, in the situation of a defendant on a capias, who has filed common or special bail, and goes no further, in effect, than to excuse the entry of an appearance. But “if the defendant appears, and afterwards being demanded by the court the same day, will not appear, will a departure in despite of the court, upon which there shall be judgment against him immediately.” Mod. Ca. 3, 5th Com. Dig. 307. So, also, “in all personal actions upon a default after declaration before issue, there shall be final judgment against the defendant.” Show. 65, 1st Salk. 216. 5th Com. Dig. 307. See also 5th Com. Dig. 553. There does not, therefore, appear to be any irregularity in calling and defaulting the defendant.

But this is a case in which the liquidation of damages could not lawfully be referred to the clerk, and would not have been so referred had not the court been misinformed as to the nature of the plaintiffs demand. The court may refer matters of computation to the clerk, where there is established data to go upon, as casting interest on notes and bonds; but they cannot refer to the clerk the assessment of damages upon parole evidence to be exhibited. The reference, in this case, was then altogether void and illegal, if it was not also in deceit of the court.

It must appear by the officer’s return on all process, that legal service of such process has been made. The law directs that a copy of the summons “shall be^served on the defendant, or left at his dwelling house or usual place of abode.” Here are three different modes in which such writ may be served; and it does not appear, by this return, that the writ has been served in either of them, either upon the defendant personally, at his own house, or at the house of another person as his usual place of abode. I should take this return, therefore, to be imperfect and defective, not sufficient to warrant the calling and defaulting the defendant, were it not that the statute seems to authorize such brief return; but his appearance now may cure such defect, if it is one. 5 Com. Dig. 295. All the proceedings subsequent to the return of the writ, are set aside, and the plaintiff may take a rule on the defendant to plead.