Opinion
June Term, 1853.
APPEAL from the judgment of a justice of the peace in an action of assumpsit.
Patterson, for defendant.
Mr. Patterson moved in this case for a rule on the plaintiff to file his narr. by Thursday of next week. He had issued two citations, and had two returns of non est inventus. He revived the question started in Jeans vs. Milford, 3 Harr. Rep., 48, as to the mode of proceeding where the plaintiff below will not appear to the appeal.
He said that in many other cases the court had held two returns of "nihil" or of "non est," as equivalent to a citation; and some such rule was necessary in this case, to proceed in the appeal. The law secures the right of appeal to a defendant, which would be inoperative, unless there can be a mode of compelling the plaintiff to appear to the appeal.
The Court laid the rule as prayed, that the plaintiff declare by Thursday next, or judgment of non pros., treating him as cited.