Opinion
October, 1793.
Levy for the plaintiff. Johns for defendant.
For the plaintiff it was insisted that the appearance of the parties before the referees cured any defect or want of summons and that the Court might presume the previous proceedings regular. On the other side, it was said that the Court would not presume what did not appear, and that appearance would not supply the want of summons though it might cure defects in it.
This was a motion to quash proceedings had before a justice of the peace upon objections to a return made by the justice to a certiorari. The first and principal part of the return consisted of an award of referees which recited "that after hearing the parties" etc. No objection was made to the subsequent proceedings.
The first matter which appears in this case is the report of the referees which cannot supply the want of previous proceedings; and the appearance of the parties being certified by the referees is not sufficient to cure the non-appearance of former proceedings. The Act of Assembly [ 2 Del. Laws 1047] requires a book to be kept by the justice in which fair entries are to be made of his proceedings. The Act prescribes the nature and requisites of the record which he is to keep. Though the certiorari requires the record to be returned, a transcript is well, because it is considered as a record so as to stop proceedings below. If a party would have a justice to return matter not comprised in the record which the Act of Assembly directs to be kept, he should specify it in his precipe and it should be incorporated in the certiorari; otherwise it is sufficient for the justice to return a transcript of a record kept pursuant to the Act. The proceedings upon the present return cannot be maintained and must therefore be quashed.
CLAYTON, J., of same opinion.
Proceedings quashed.