M'Collister v. Richman 2 N.J.L. 209

M’COLLISTER against RICHMAN.

OH OERTIOllARI

Illegal adjournment cured, if made at request of party complaining of it.

It appeared by the return of the justice, to the certiorari, that a summons had been issued in the cause, [152] returnable the 14th of August, 1806. That on the 13th, the defendant appeared, and prayed an adjournment to the 28th, which the justice granted. That on the 14th, the plaintiff appeared, and filed the state of demand, and being informed by the justice, of the adjournment made at the instance of the defendant, agi-eed to appear on the 28th; that on the 28th the plaintiff appeared with his witnesses, and after waiting a reasonable time, and the defendant not appealing, the justice proceeded to try the cause in his absence, and rendered judgment for $16.56, in favor of the plaintiff.

[*] Crane, for the plaintiff in certiorari,

who was the defendant below, moved the court to reverse the judgment, on the ground of the irregularity in the proceedings before the justice. That the appearance of the defendant on the 13th, (to which he alleged he had been misled by an error in the summons, in putting the wrong day of the week,) was not an appearance on the return of the summons — nor could it be considered such an appearance as would warrant the adjournment, and subsequent trial in his absence; but the court considered, that as the adjournment was made at the instance of, and request of the defendant, and the time fixed *195on by himself — that the justice was justified in hearing the cause on the 28th, in his absence, and

Crane, for plaintiff.