
    FLEMING against NEWMAN.
    OS CEETIOEAEI.
    Judgment in absence of the defendant, without proof, is error, but not so, if he be present.
    On the return day of the summons, the justice makes the following entry in his docket: — The parties appeared, and the plaintiff filed a state of his demand, to the amount of $38.93; and after examining the cause, I gave judgment on a certain order and two notes, in favor of the plaintiff, for the sum of thirty-eight dollars and sixty-nine cents debt. &c.
   Pennington, J.

The state of demand charges the defendant below with two notes of hand, and an accepted order set out, I think, with sufficient certainty. On the return day of the summons, the parties appeared, and the record says that the justice examined the cause, and gave judgment for the plaintiff. It does not appear that any witnesses were examined in the cause. This court, in cases resembling the present, have reversed the judgment where the judgment was rendered by default in the absence of the defendant. But in this case, the defendant was present; he may have admitted the signature to the notes and acceptance. I think it would be going farther [*] than the circumstances of the case call for, to presume that the justice, under the circumstances of the case, rendered judgment without evidence; and am of opinion that this judgment should be affirmed.

Caleb Lloyd, for plaintiff.

Kirkpatrick, C. J.

Where the defendant has not appeared, and no witness has been sworn, we have reversed, because it cannot, in that case, be conceived that the plaintiff’s demand is lawfully established. But where the defendant has appeared, we have rather presumed that he may have made admissions, than that the justice should have rendered judgment without having the matter of fact fully established. Upon this principle let this judgment be affirmed.

Rossell, J.

Was of the same opinion. Judgment affirmed.

Cited in State v. Mayhew, 4 Halst. 70.  