
    Tyler against Olney.
    sf a justice m¡shnt,^by Mormdontfnbed8 and tftenvardá give judgment a-l?si0absen‘ra’ the itersed‘ "iUb8
    I-Ñ ERROR,, bn Certiorari to a justice’s Court,
    A summons. was. issued in the Court below* at the request of 'Cone, as attorney for Olney, the plaintiff below. The constable wjj0 served the summons informed the justice* at the time of the . . s . v. . return, that the cause would be discontinued, which j,he justice noted upon the back of the summons. About this timé* or soon after* one Elijah Durand appeared in behalf of the defendant* and inquired if the cause would be called, when the justice informed him óf whát the-constable had stated* and showed him the endorsement made on the summons. Durand produced no power of attorney, nor alleged that he .had one; nor. did the justice ask for one. After Diirand was gone* Cone appeared in behalf of the plaintiff, and demanded that the -suit should go on, and denied that he had given the constable any orders to say that the' suit would be .discontinued;,. Upon explanation with the- constable* it appeared that there was a mistake as to the suit in which the order was given, The justice proceeded Id trial* and gave judgment for the" plaintiff.
   Per.Curiam.

It would be the height of injustice to sustain • this judgment-. It may be questioned whether the suit was not discontinued and pfft of court.; butif not, - the justice- was bound. to postpone the trial, as he had a right to-do, not exceeding six days, he having misled the defendant. Whether Durand was authorized to appear, was not made a question; the justice recognised him as the agent or attorney of the defendant; if he had disputed his authority, he should have' required the proof of it. The judgment must be reversed.. ' ■

Judgment reverse^.  