BORDINE and al. v. SERVICE, late Constable, &c. ant of the service of the process, but a waiver of all objection to the form and manner of service. We do not say that if a defendant appears at the return of a summons defectively served, and objects to the mode of service, that his appearance for that purpose, will cure such defective service; but he must interpose that objection, before he submits himself to the jurisdiction of the court, by putting in a plea to the action, or praying an adjournment. The case of Cook v. Hendrickson, Penn. R. 344, is directly in point, and in Shinn v. Earnest, Penn. R. 55, Pedrick v. Shaw, Id. 58, Layton v. Cooper Id. 63, Hedden v. Vanness, Id. 84, Mulford v. Perrine, Id. 474, Martin v. Steel, Id. 718, and Steddiford v. Ferris, 1 South. R. 108, which were all cases of defective returns, the uniform language of the court, is, that a general appearance of the defendant, is a waiver of the objection. Let the judgment be affirmed. FORD and RYERSON, Justices concurred. Judgment Affirmed. BORDINE and al. v. SERVICE, late Constable, &c. ON CERTIORARI to Middlesex Pleas. In action upon a judgment in favor of plaintiff as Constable, the plaintiff styling himself, in the second suit, late Constable, may recover, notwithstanding the variance between the record produced, of the former judgment, and that stated in his demand. The words "late constable," are only descriptive, and may be rejected as surplusage, in a justice's court, where technicality is not rigidly required. A record stating that "I. C. one of the defendants appeared and confessed judgment for, &c., Whereupon, I gave judgment for the plaintiff, for the sum, 16 47 67 508 BORDINE and al. v. SNRVICE, late Constable, &c. &c., is erroneous; but it is a judgment in that action, and therefore against both defendants, and cannot be reversed on a certiorari brought to set aside a second judgment founded thereupon, Blauvelt for Plaintiff in Certiorari. Lupp for Defendant. The opinion of the Court was delivered by HORNBLOWER, C. J. This was an action of debt upon a judgment against the plaintiff in Certiorari, entered before Samuel Willett, a justice of the peace, on the 14th November, 1825, in favor of Service, the defendant in certiorari. On the 4th. November 1825, John D. Service by the name and description of John D. Service, Constable, brought an action of debt, before Justice Willett, against Bordine and Connett. The entry of the judgment in that case, is as follows, "parties appeared; James Connett one of the defendants appeared and confessed judgment for Eighteen Dollars and eighty-three cents; whereupon I gave judg ment for the plaintiff, for the aforesaid sum of Eighteen dollars and eighty-three cents of debt, and ninety-two and a half cents costs." In January, 1835, Service, by the name of John D. Service, late constable, sued Bordine and Connett on that judgment, before Saxton M. Tice, another justice of the peace, and in his state of demand, sets out the record of judgment before Justice Willett, as if the judgment had been rendered in his name as late constable. Service obtained judgment against Bordine and Connett, in this new action, from which, they appealed. The Court of Common Pleas affirmed that judgment, and this certiorari is brought, to obtain a reversal of the judgment of the common pleas. Two errors are assigned. 1st. That there is a variance between the state of demand filed in this case, and the record given in evidence. Or rather, between the record set out in the state of demand, and the one given in evidence. But this objection does not appear to be well founded. The plaintiff in this action (perhaps unnecessarily) calls himself late constable, and has so entitled his state of demand, but in the state of demand itself, he calls himself the plaintiff; and says, "the plaintiff demands, &c. on a judgment ment recovered by the said plaintiff, against, &c." Who is BORDINE and al. v. SERVICE, late Constable, &c. plaintiff? John D. Service, and not, late Constable; those are only words of description, or addition, and may be rejected as surplusage. It is true, in the record given in evidence, the action is entitled, "John D. Service, Constable," and it would perhaps have been more accurate, if in his state of demand, he had alledged, that in an action brought by him, by the name of John D. Service, Constable, he had recovered, &c. But this would be requiring a degree of technicality, we have never insisted upon, in the court for the trial of small causes. In the case of Blackmore v. Flemyng 7 T. R. 446, which was debt on a judgment, the defendant was called Hamilton Flemyns, Esq., commonly called Earl of Wigton. The defendant plead nul tiel record, and upon the record of former recovery, being produced, it appeared, that the defendant had been sued in that action, as a peer of the realm, by the name of the right Honorable Hamilton Fleming, Earl of Wigton. It is true, the court held it to be a failure of record, but gave the parties leave to amend. That was a proceeding, however, in the King's Bench, and there was such a discrepancy in that case, as required such a decision. In one record he was sued as an Earl, and in the other, as a person commonly called, Earl of Wigton. Besides, in this country we have no statute of additions. The second reason for reversal, is that the judgment set out in the state of demand, is a judgment against two; namely Bordine and Connett; Whereas, the record produced, if a judgment at all, is only a judgment against one. The record is as follows; "James Connett, one of the defendants appeared, and confessed judgment for Eighteen dollars and eighty-three cents: whereupon I gave judgment for the plaintiff, for the aforesaid sum of," &c. This proceeding, was undoubtedly erroneous, but nevertheless, it was a judgment for the plaintiff, and a judgment in that action, and therefore a judgment against both of the defendants in that action: and we cannot in this collateral manner, reverse that judgment. It must stand and be treated as a judgment, until set aside by a direct proceeding for that purpose. The judgment of the common pleas, must therefore be affirmed. FORD and RYERSON, Justices, concurred. Judgment Affirmed. DUNHAM v. SOLOMON, On Certiorari to the Common Pleas of Middlesex. The Marshal of the city of Perth-Amboy, is not an officer authorized to serve process of the court for the trial of small causes. A prisoner in custody by virtue of a warrant in debt, must on the adjournment of the cause, either enter into recognizance to appear, &c; or on his refusal to do so, the justice must command the constable, to convey him to jail, or detain him until the time of trial, not exceeding three days, or until the plaintiff be notified, and have time to attend the trial. But if the magistrate neglect giving such command, the constable has no authority for detaining the prisoner, nor is he liable for an escape, if the prisoner is suffered to go at large. The command of the justice. for such detention, should appear on his docket; verbal orders are not sufficient. If plaintiff do not appear on the day adjourned to, by his own consent, the defendant is entitled to a non-suit and discharge. The state of demand for an escape, should set forth that the defendant was arrested, and in custody of the officer, under a legal process. A warrant in a civil suit, issued by an Alderman of the city of Perth-Amboy; must be directed to a constable of the city; to be executed within its limits; and not as in this case, within the county of Middlesex. Lupp for plaintiff in error. Nevius for defendant. The opinion of the court was delivered by HORNBLOWER, C. J. Solomon, the defendant in certiorari, sued one William Dunn, in an action of debt, before an Alderman of the city of Perth-Amboy. The suit was commenced by warrant, by virtue of which, Clarkson Dunham, the plaintiff in this court, as Marshal of the said city, arrested Dunn, and took him before the Alderman, in the forenoon of the 8th of December, 1835. Solomon, the plaintiff in that suit, appeared at the return of the warrant, filed his state of demand, and prayed an adjournment until five o'clock in the afternoon of that day. This the Alderman granted, but made no order, either written or verbal, committing the defendant Dunn, to the custody of the Marshal, or directing the latter to take charge of and detain him, until the hour to which the cause was adjourned; except that after the plaintiff Solomon had left the magistrate's office and passed into his front room, and as the marshal and Dunn were about leaving DUNHAM V. SOLOMON. the office, the magistrate in answer to a question put to him by the Marshal, 'what was to be done with the defendant?' replied that the said Dunn, 'was as he supposed, in the custody of him, the said Marshal, until the afternoon." At the hour of adjournment, five o'clock in the afternoon, neither party appeared before the Alderman, whereupon he dismissed the suit, and gave judgment against Solomon for the costs. Solomon then brought an action on the case, before justice Runyon, against Dunham the Marshal, for suffering Dunn to escape; but on the trial, the justice rende red judgment for the defendant. From that judgment, Solomon appealed, and the court of Common Pleas gave judgment in favor of the plaintiff, for twenty-seven dollars and thirty-nine cents with costs. These proceedings are now brought into this court, by certiorari; and the judgment of the court of Common Pleas, must be reversed for several reasons. First. By the tenth section of the act constituting courts for the trial of small causes, (Rev. Laws, 630) it is enacted, that upon the return of a warrant with the prisoner in custody, the justice shall, at his discretion, either cause the defendant to enter into recognizance for his appearance, or on his neglect or refusal to do so, shall command the constable to convey him to goal, to be there detained, until time may be had for the hearing, or trial of the cause, not exceeding three days, from the return of the warrant; or such justice "may direct the constable to hold the defendant in custody, until the plaintiff shall be notified and have time io appear and proceed to trial," Now the magistrate did neither of these things. He neither required the defendant to enter into recognizance, nor commanded the constable to convey him to goal, nor directed the constable to hold him in custody. The Alderman did indeed "suppose" the defendant to be in the custody of the officer, until the afternoon. But he was mistaken; his supposition was unfounded. He was not in the custody of the officer, because the justice supposed he was. Nor had the officer any right to detain the defendant, and hold him in custody, one minute after the cause was adjourned, unless he had been expressly commanded or directed to do so, by the magistrate; and if any such command or direction was given, it ought to appear of record. The magistrate should have recorded such order or direction, in his docket. Personal liberty is not to be res 1 |