Opinion
October, 1793.
On motion to quash the proceedings on the return of a justice of the peace to a certiorari. The first and principal part of the record returned was the report of referees, which stated the appearance of the parties, the hearing of the cause, the sum, etc.
Levy contended that the appearance of the defendant would supply the want of a summons and cure any other defects in the proceedings.
It was replied by Mr. Johns, who argued for the motion, that although appearance would cure any defects in a summons, yet no case can be shown where it has supplied the place of a summons altogether, where there was none ever issued. He therefore contended for this objection alone, without any exception to the subsequent parts of the return, that the proceedings must be quashed.
In the present case no original process is returned to the court, and it does not appear by the return that any ever issued. So far it is certainly defective. By an Act of Assembly commonly called the "Five pound law," passed in the year 1744 [1 Body Laws 257], justices of the peace are directed "to keep fair entries in books by them to be provided for that purpose of the names of the plaintiffs and defendants in all such cases as may come before them with the debt and costs adjudged and the time when the said judgment was given." In cases of appeal and in common cases of returns to certiorari, a transcript of such entries is sufficient. If it be necessary to bring anything further before the court, it can be done by specifying the particulars which are wanted, in the precipe, and having them, incorporated in the certiorari. In the present case the proceedings must be quashed.