NICHOLSON v. WRIGHT. preme Court, and not to interfere with any new and special jurisdiction given to that Court by any pre-existing statute. The case of Woodruff v. Woodruff Penn. R. 552, was also cited at the bar, as having some influence on this question; but it has none. If that case settles any law, it only establishes the position, that the Court for the trial of small causes, has jurisdiction of actions for legacies to the value of one hundred dollars. But Mr. Justice Pennington dissented on that point, from his brethren; and if the question should be again raised in this Court, I should not be surprised if his argument should prevail. Upon the whole I am of opinion the plaintiff is entitled to judgment, with costs, including the costs and expenses of auditing the defendant's accounts, de bonis propriis. FORD and RYERSON, Justices, concurred. NICHOLSON v. WRIGHT. Certiorari to a Justice of the Peace. Mr. Wilson, for the plaintiff in Certiorari moved to reverse the judgment in this case, on the ground, that before the return day of the summons, the Justice for his own convenience, adjourned the cause, and sent word to the defendant, and then, on the adjourned day, proceeded to trial in the absence of the defendant. The counsel referred the Court to 2 Penn. Rep. 869. BY THE COURT. Upon principle, as well as upon the authority of Halsey v. Whitlock, 2 Penn. R. 869. and several other cases decided since that, this judgment must be reversed. Judgment reversed. MOORE and FISHER v. MILLER. On Certiorari to a Justice of the Peace. A return on the summons "served this summons, June 2, 1837, on G. F. the other defendant out of the county; no copy demanded," is defective-as not showing how served on G. F. It should be by reading it to him. The other defendant although out of the county, might have an abode therein, but if not, the return should state that "he could not be found in the county so as to be served with process." W. Thompson for plaintiff. Miller sued Moore and Fisher by summons in an action of covenant for one hundred dollars damages. On the return day of the summons, the Justice proceeded in the absence of the defendants and gave judgment in favour of the plaintiff for ninetyfive dollars with costs. BY THE COURT. This judgment must be reversed, 1st. Because it does not appear that the summons was legally served. The constable's return is as follows. "Served this summons June 2 1837, on George Fisher, the other defendant out of the county; no copy demanded." This return is bad for two reasons. 1st. It does not shew how the summons was served on Fisher. The statute (Rev. L. 630. Section 6.) requires that the constable shall endorse on the summons, the time and manner of service. He may have only told the defendant he had a summons for him, or have done something else which he considered a service. But the Justice had no right to proceed against Fisher in his absence, unless it appeared, by the officer's return, that the summons had been lawfully served on him; which should have been by reading it to the defendant. 2dly. The return is also bad as respects Moore, the other defendant. It says, "the other defendant out of the county." That may have been true, and yet he may have had a house or place of abode in the county, at which the summons ought to have been served. If the defendant Moore did not reside in the county and could not be found within the same to be served with process, the constable ought to have returned that he could not be found in his county so as to be served with process. Such a return would have excluded the idea of his having a place of abode in the county; and if untrue, subjected the constable to an action for a false return. For these reasons ROBBINS V. Bonnel. the judgment must be reversed. There was another error committed by the Justice, if we understand his record for it appears that he "accepted" to use his own terms, the lease declared upon, in evidence, without requiring any proof of its execution. Perhaps however some of the witnesses subsequently sworn were subscribing witnesses or proved the execution of the lease. For the reasons first given, the judgment must be reversed. Judgment Reversed. ROBBINS v. BONNEL. On motion for Mandamus in matter of appeal. An affidavit to obtain an appeal, being indorsed on the appeal bond, is good, but it vitiates the bond. The Court of Common Pleas dismissed the appeal for want of the necessary affidavit; the affidavit which had been made, and which in other respects was sufficient, having been written on the back of the appeal bond. D. B. Ryall, for the appellant moved for a Mandamus, and cited 3 Green, 20, Freas v. Jones; 2 Ib. 117, Carman v. Smick. Wm. Halsted contra. BY THE COURT. The Court of Common Pleas, no doubt, dismissed the appeal in this case, in consequence of what was said by this Court, in Freas v. Jones, 3 Green's R. 20; but on one or two occasions, since that case was decided, we have expressed an opinion, that the objection ought to be to the bond, and not to the affidavit. The party by putting his affidavit on the bond, has in effect deprived his adversary of the benefit of it: for the Court of Common Pleas cannot deliver the bond to the appellee, for prosecution, without delivering with it, the affidavit VAN ATTA V. MCKINNEY'S, FXRS. also, which ought not to be done.-If the objection had in this ease, been made to the bond, the appellant might immediately have substituted a new one; but another affidavit would have come too late. Let a mandamus therefore issue, as prayed for. FORD and RYERSON, Justices, concurred. Mandamus Ordered. VAN ATTA v. MCKINNEY'S EXECUTORS. On Certiorari to the Hunterdon Common Pleas, in matter of appeal. It is lawful for a man to conduct and transact all his business by an agent or servant. His lawsuits in a Justice's Court, form no exception. Every servant is entitled to a reasonable remuneration for his services in another's business; and his claim therefor, may be enforced in a Court of Justice. The case of advocates, or counsel, and perhaps physicians, are the only exceptions. But such remuneration does not extend to the service of speaking to, or advocating a cause in Court. STATE OF THE CASE. The plaintiff below-Who is also the plaintiff in this Court, sued the defendants, for services rendered to their testator. It was objected in the Common Pleas, that the account, or statement of demand of the plaintiff contained no cause of action. The Common Pleas, being of that opinion, nonsuited the plaintiff. This Certiorari is brought to set aside the nonsuit. H. W. Green, for plaintiff. S. R. Hamilton, for defendant. The opinion of the Court, was delivered by RYERSON, J. The conflicts of interest, and the ingenuity of VAN ATTA V. MCKINNEY'S, EXRS. counsel, are constantly running new distinctions, and presenting new questions for the consideration of this Court. It has already been determined, that advocate's sees, eo nomine, are not recoverable at law, in this state. Shaver v. Norris, Penn. Rep. 663; Seeley v. Crane, 3 Green R. 35. In this cause, we are called on to decide, whether services rendered in the character of an attorney, in the Court for the trial of small causes, are recoverable. Without touching that question, we may, and must reverse this judgment; for, at least one item in the plaintiff's demand, is actionable. But as the question, above referred to, is fairly before us, and being stated, must sooner or later, (perhaps in this very cause,) be decided, it may as well be disposed of at once. It seems necessary, in order to direct the Court below, on the very question, which led to this Certiorari. I am reluctant to open the door to new subjects of litigation; and in feeling, opposed to the plaintiff' sclaim. I fear that sustaining an action therefor, will much increase the demands of a similar character; and perhaps give a new stimulus to litigation in the Justice's Court. But this matter is to be settled on principle. In principle then, it is lawful, for a man to conduct and transact all his business by agent or servant. His law-suits, even in a Justice's Court, form no exception. Every servant or agent, is entitled to a reasonable remuneration for the time, care and labour bestowed upon the business of another; and so entitled that his claim may be enforced in a Court of Justice. I know of no exception, but the case of the advocate, or counsel, resting on its own peculiar reasons. It is not intended to say whether the case of a physician does or does not form an exception But the remuneration allowable in this, case, is not for learning, talent or ingenuity. Our law does not suppose these necessary, to conduct the business of a Justice's Court. And remuneration may be recovered, only for services, strictly analagous to the duties of an attorney at law, in the higher Courts. Such are drawing accounts, or statements of demand; attending the Court on the return of process, adjourn day, or trial day, in lieu of the party himself; collecting evidence, or whatever else may be necessary to prepare the cause for trial, and present it duly to the Court. But this does not include speaking to a cause in Court, or advocating, (however learnedly, or |