
    *Nat. Budd and Nat. Budd, jun. against David Marvin.
    ON CERTIORARI.
    Confession of judgment, dav^MA^ 
    
    Eeturn of summous.
    By the transcript of the justice, it appears, that the summons was issued on the 6th day of November A. D. 1817, returnable on the 12th of the same month. The constable returned the summons, duly served. On the . 1 n , oí-, lloli, fiie day before the return day, one of the defendants, Nathaniel End'd, appeared and confessed a judgment for 73 dollars, debt, and 53 cents, costs. On the 12th, the return day, the other defendant appeared and confessed judgment; the note on which the action was brought being the joint note of the two defendants. On the same day, the 12th, both the defendants, with Abraham Hitchcock, a. good and sufficient freeholder of the county, confessed a judgment to the plaintiff in order to obtain a of execution for six months.
    These defendants now come into this court and claim a reversal of the judgment, because it was entered upon confession and no oath was filed by the plaintiff.
    
      Campbell for plaintiff.
    
      
      
        Parker vs. Griggs, ante 161. Lee vs. Woodhull, 7 Hal. 126. Ferguson vs. Earl, 3 Gr. 124. Hoguet vs. Wallace, 4 Dutch. 524.
      
    
   By the Court.

The service of the summons, was illegal, but it is cured by the subsequent appearance of the defendants,

The 2nd section of the act, “to prevent the fraudulent confessions of judgments,” passed the 29th January 1817, enacts, that when parties agree to enter, without process, any action before a justice of the peace, as permitted by the 19th section of the act entitled an act, constituting Courts for the trial of Small Causes, no judgment by confession shall be entered against the defendant unless an affidavit shall be made and filed, &c. This section, bjr its words and fair construction, applies only to actions, entered by agreement, without process. Such is not the present case. The parties here did not agree to enter the action ; nor was it entered without process : a summons was issued, served and returned. The suit was compulsory. No reason for reversal is therefore preceived. Let the judgment be affirmed.

Judgment affirmed. 
      
      
         Stediford vs. Ferris, ante 109. Clifford vs. Overseer, &c., 8 Vr. Ayres vs. Swayze, 2 South. 813. Steward vs. Sears, 7 Vr. 175.
      
     