Adkins v. Jester 1 Houst. 352, 6 Del. 352

Robert Adkins v. James B. Jester.

In a trial before a justice of the peace, if the plaintiif fails to attend, after the defendant has appeared and pleaded a set-off, the justice should enter a judgment of nonsuit against the plaintiff, and not a judgment by default in favor of the defendant, on his plea of set-off.

Certiorari to Justice Williamson. The record showed that the action was on account for $40. On the first day *353appointed for trial neither party appeared, and the case was adjourned to a future day, when the defendant appeared and pleaded a set-off for $9.50, and the case was again adjourned to another day, when the plaintiff having again failed to attend, the justice, after hearing the allegations and proofs of the defendant, adjourned the trial to another day, and then rendered judgment by default, against the plaintiff aiid in favor of the defendant, for $5.47 and costs of suit.