Willard v. Sperry

16 Johns. 121

• Court: New York Supreme Court
• Decided: January 15, 1819
• Status: Published

Opinion

Per Curiam.

The judgment is erroneous. The note forming one indivisible contract, cannot be the foundation of several suits. It is a usurpation of jurisdiction, and a justice might, if this be tolerated, take cognizance of con- , , , tracts to any amount.

There is, besides, error in the proceedings in regard to the return of the attachment. The 24th section of the act for the recovery of debts to the value of twenty-five dollars, enacts, “ that it shall be the duty of the constable to attach 7 J and keep the goods, &c. and to leave a copy of such at- , 1 ° rv tachmentat the dwelling house, or other last place of abode of the defendant; and shall return the same to the justice who issued the same, and the manner of executing the same, &c.’’ In this case the return merely states, that the constable had seised the goods, without stating that he left a copy, &c. To bring a defendant in default, so as to justify a trial and judgment ex parte, it must expressly appear, that the process of attachment has been served, by leaving a copy at the dwelling-house or other place of abode of the " defendant. For aught that appears, he might have left a fam¡]y; an(j an attorney to defend against all claims.

On both grounds, therefore, the judgment must he reversed.

Judgment reversed.

The judgments rendered by the Justice, in the other actions upon the same promissory note, were also reversed forithe same reasons.