Lentz v. Callin

26 N.J.L. 218

• Court: Supreme Court of New Jersey
• Decided: February 15, 1857
• Status: Published

Opinion

By the Court.

The judgment and proceedings must be set aside. It appears that the constable first endorsed on the writ a return that he had attached and inventoried a quantity of coal; and then immediately below, under the same date, he says he returns the writ for want of goods and chattels whereon to seize, to which he signs' his name. The justice appointed a day for the trial, and having heard witnesses, rendered a judgment for the plaintiff. It does not appear that he gave any direction in regard to the safe keeping of the coal, and whether it was in fact retained by the constable, or, as is probable, given up to some person who claimed it, does not appear. To justify the justice in appointing a day of trial, some property must be attached, and this must appear by the explicit return of the constable.

Besides this defect, it does not appear that there was any proof of the advertisement of the attachment, as required by the statute. This being essential to entitle the justice to try the case in the defendant’s absence, ought to be stated on the docket, as was held in the case of Conover v. Conover, 2 Harr. 187.