Opinion
Fall Sessions, 1842.
Gilpin, for plaintiff.
CERTIORARI
Record. "George W. Chaytor vs. John H. Barr. Action on account for medicine and attendance for one of the crew of the Ceres, $5. Summons; the defendant appears and denies the plaintiff's demand; and asks for an adjournment to the 14th instant, which is granted." September 14th, 1841, the parties attend, and "after hearing their allegations the matter is continued under advisement, with liberty to the parties severally to produce further testimony at any time they may deem proper." July 5th, 1842, further hearing in presence of both parties, and continued under advisement. July 8th, 1842, the plaintiff having been sworn in due form of law, viz: "that this account against John H. Barr is just and true as it stands stated, and that nothing had been paid or delivered towards satisfaction of said debt." Judgment against the defendant for $5 debt and 56 cents costs.
Exceptions. — 1st. That the first adjournment was for more than thirty days. 2d. That the second adjourtment was for an indefinite time. 3d. Because the justice had no authority to administer such an oath to the plaintiff in support of his claim. 4th. The judgment should have been a judgment by default, on hearing the proofs and allegations of the plaintiff, and not a judgment upon a hearing of both sides. 5th. Because the judgment was founded on the oath of the plaintiff. 6th. Because the judgment was rendered on a day to which the cause did not stand adjourned.
The court reversed the judgment on the third, fifth and sixth exceptions.
The justice has no authority to adjourn a cause indefinitely, nor otherwise than to a day certain; nor has he any right to administer such an oath to the plaintiff. If this was an action against the defendant on any assumption to pay the debt of another, such assumption should have been sworn to; if it was against the defendant as originally liable, proof of such liability should have been made by the book of original entries and oath of plaintiff; or proof that defendant ordered the medicine and attendance.