M'Nutt v. Johnson

7 Johns. 18

Opinion

Per Curiam.

The judgment is erroneous. The defendant not being present at the trial, cannot be deemed to have waived any objection to the competency of the proof; it ought, therefore, to have been legal. By the 7'th section of the 25 dollar act, (24 sess. c. 165.) to entitle the defendant to an adjournment, under the circumstances existing in the original cáse, the defendant is to give sufficient security to appear on the day, &c. and in default of such appearance, to pay the debt and costs, if judgment shall be given against such defendant. The particular kind of security is not designated ; but it must be either a recognisance taken by the justice, or at least a written engagement; otherwise, it comes directly within the statute of frauds; here there appears to have been neither.

Judgment reversed.