Isaac Stoyel against Amos Westcott, jun

Isaac Stoyel against Amos Westcott, jun. WRIT of error. This suit was originally commenced in August, 1805, , , , , ' . . ** • r and was brought before this court, on a writ of error, in June, 1807⅛ when the judgment of the superior court was reversed, for the insufficiency of the declaration. The cause being remanded to the superior court, and entered on reversal, the declaration was amended by stating the date of the writ by virtue of which Westcott arrested Stoyel, and the court to which that writ was made returnable. Stoyel then pleaded anew, (Carder having died since the commencement of the suit,) the plaintiff replied, and the pleadings terminated in a demurrer. The court gave judgment for the plaintiff. The defendant then brought this writ of error, setting forth the whole record in the court below. A new ground of error being now relied upon, it becomes necessary to state, that this action was brought against Stoyel and Carder, by a writ of attachment dated the 8th of August, 1805, returnable to the Wind-ham county court, on the third Tuesday of that month; that Stoyel was described as “ of Foster, in the county of Providence, and state of Rhode-Island," and Carder of Killingly, in Windham county; that service was made by attaching property, and leaving a copy with Carder; and that the writ was duly returned. The record of the county court, so far as it respects the appearance and pleadings of the parties, and the judgment thereon, is as follows: An action sounding in tort against A. an inhabitant of the state of Mhode-Mand, " 'of t,lis state, be-!i)g brought to the county eourt, A. did not appear, nor put in i* plea, but & appeared and pleaded to the action, and judgment was rendered, at the first term, in favour of the defendants; the plaintiff then appealed to the superior court, and there fiad judgment in hk favour; Held, that the proceedings of the eounty court were void, and the judgment of the superior court erroneous, feeing rendered without regular process in the eause. “ The defendant {Carder) in court, defends, pleads, and says, that the plaintiff’s declaration, and the matters therein contained, are insufficient in the law; all which he is ready to verify, and thereof prays judgment. “ Parish, for said Carder. i( The plaintiff says his declaration is sufficient. “ Backus and Learned, for the plaintiff, <£ Windham, ss. County Court, August term, 1805. “ Amos Westcott, jun. of Killingly, in the county of Windham, plaintiff; William Carder, of said Killingly, and Isaac Stay el, of Foster, in the county of Providence, and state of Rhode-Island, defendants. “ In a plea of the case, demanding one thousand dollars damages, with cost, as per writ on file, dated August 8th, 1805. The parties appeared; the defendant Carder in court demurred to the declaration of the plaintiff; and the plaintiff joined in said demurrer, as on file. This court are of opinion, and adjudge, that the declaration of the plaintiff is insufficient in law-Thereupon it is considered by this court, that the defendants recover of the plaintiff their cost.” The plaintiff appealed to the superior court. The history of the cause subsequent to that period, has already been given. Staples and F-varts, for the plaintiff in error, contended, that the judgment ought to be reversed on the following grounds: 1. That the declaration was still bad: first, because, the writ by virtue of which Westcott arrested Stoyel, as set forth, gave him no authority to make the arrest; secondly,. because matters were joined in the declaration which cannot be joined. 2. That the plea in bar was a complete answer te every material allegation in the declaration; as it contained direct and positive allegations, which it was necessary to demur to, or traverse, or avoid by new matter. . 3. That the replication was clearly bad; but yet admitted in terms the truth of the plea in bar as pleaded. 4. That the superior court could not render ar.y judgment against Stoyel, as the cause was not regularly before them. To all these exceptions Daggett and Goddard, for the- defendant in error, r. plied; and the case was very fully aigoed on both sides. But as the decision turned solch o.i one of the points, and that least considered by the counsel, a particular report of the arguments is deemed unnecessary. tide 2 Day, 418. For the same reason a particular statement of the pleadings ⅛ the superior court is omitted. [MAJORITY — By the Court.] By the Court. It appears from the record in this case/that Stoyel, one of the original defendants, was an inhabitant of the state of Rhode-Island; that judgment in the county court was rendered the term to which the action was brought, without any appearance on the part of Stoyel. or plea put in by him; and that he was in no way party to the cause, until after the same was appealed, and entered in the docket of the superior court. The proceedings of the county court were therefore void; and the cause in the superior court was in the same situation as any other cause would be entered there without process. The proceedings and judgment of the superior court must, as a necessary consequence^ be erroneous, and ought to be reversed. Judgment reversed. Vide Stat. Conn. tit. 6- c. 1» s. 3. by which it is provided, that “ if the party against whom suit is brought, is not an inhabitant, or a sojourner, in this state, or is absent out of the same, at the time of commencing such suit, and doth not return béfore the first day of the court’s sitting, the judges of the court where such suit is brought, shall continue the action to the next court; and if the defendant doth not then appear, (by himself or attorney,) and be so remote, that the notice of such suit depending could not probably be conveyed to him rmitng the vacancy, the judges, at such next court, may further continue the. action to the court thence next following, and no longer, but may enter up judgment on. default after such continuance, or continuances.”