
    *Robert H. Pierson against William Pierson.
    ON CERTIORARI.
    1. A judgment given by a justice of the peace on a report of referees, m tbe absence of the defendant, and without giving to the defendant any notice of tbe time when such judgment would be given by said justice, will be reversed.
    2. A certiorari will lie to bring up a judgment given on a report of referees, in tbe absence of tbe defendant.
    This was an action commenced before a justice of the peace, and, by consent of the parties, and by rule of the justice’s court, submitted to the determination of referees, indifferently chosen by the parties ; and by their submission it was agreed, that the report of the referees should be made a judgment of the court, and execution issue thereon. On the 12th of August, 1822, the referees reported to the justice,. 'that there was due .to William Pierson, the plaintiff in the •cause, $69.73; and the justice, on the same day, entered judgment in favor of the said William Pierson, against the defendant, for the said sum. It appeared, by the return of the justice to a rule taken upon him to certify the fact, “ that the judgment was rendered by him, on the report of the referees, in the absence of the defendant; and that the said defendant had not been previously notified of the time and place when and where the said judgment would be rendered.”
    * Ewing, moved to reverse this judgment
    because it had been rendered in the absence of the defendant, and without notice, and cited 2 South. 486, Clark v. Reed.
    
    
      Wall, said,
    there was a preliminary question, which must be settled before the propriety of the judgment could be •discussed. He apprehended that no certiorari would lie upon a judgment on a report of referees; for, by the first section of the supplement to the small cause act {Rev. Laws 796) “from any judgment obtained upon the report of referees, either party may .appeal to the Court of Common Pleas.” And, by the sixth section of the same act, it is enacted, “that no judgment rendered in any of the courts for the trial of. small causes, from which an appeal is given to the Court of Common 'Pleas by this act, or the act to which this is a supplement, shall be removed into - the Supreme Court, by/ certiorari; but the party aggrieved shall have relief upon appeal only.”
    2. But, if the certiorari was well brought, the cause assigned for the reversal of the judgment was not sufficient; for, by the nature of the rule of reference, no day in court is- given to the parties upon the coming in of the report of referees, and if the defendant did not at the return of the report, it was his own fault.
    
      Ewing.
    
    By the thirty-sixth section of the small cause act, {Rev. Laws 640) a party is excluded from the right to "bring an appeal upon a judgment rendered in the absence of the defendant. And if a certiorari will not lie in this case he is remediless, and it is in the power of the justice (by ■entering a judgment against him in his absence) to prevent the party from having any redress.
   The Court sustained the certiorari, and reversed the judgment of the justice.

Judgment reversed.  