
    McCormack and Miller vs. Levi L. Murfree.
    1. Certiorari. Practice regulating the remedy by. In view of the exten-. sion of the jurisdiction of justices of the peace, by which a new trial by jury has become a matter of greater importance to the rights and interests of parties than heretofore, the courts will rather relax than render more stringent the practice regulating the remedy by certiorari where merit exist, and no real fault or negligence can be imputed to the party.
    2. Same. Same. A petition for a certiorari, showing merits, stated that the petitioner placed two notes, to which no defence was known or apprehended in the hands of a constable, who brought suit upon them before a justice of the peace. The petitioner at the time of the trial was sick and unable to attend, he was not notified of any defence to the notes, and heard nothing of the case until after his. recovery, and too late for an appeal, when he was informed that tho justice of the peace had rendered judgment in favor of the defendants: Held, that the reasons for not appealing were sufficient, and the certio-rari was properly granted.
    
      FROM WHITB.
    Levi L. Murfree placed in the hands of a constable of White county certain promissory notes, executed by the plaintiffs in error, with instructions to collect them. The constable brought suit upon them before a justice of said county, who rendered judgment in favor of the plaintiffs in error, and against Murfree for costs. At the time of the rendition of said judgments, and for more than two days thereafter, Murfree was confined to his bed by sickness, and heard nothing thereof until it was too late to take an appeal. He brought the cause by certiorari into the circuit court of said county, upon his petition, showing merits. At the June term, 1854, of said court, before judge Goodall, a motion was made to dismiss the petition, which was overruled, and verdict and judgment rendered in favor of Murfree.
    The defendants appealed in error to this court.
    Colms, for the plaintiffs in error.
    BbieN and Muebay, for the defendant in error.
   TotteN, J.,

delivered the opinion of the court.

This case, being an action of debt upon notes, was commenced before a justice of White, who rendered judgment for the defendants, McCormack and Miller. There was no appeal, but the case was removed to the circuit court by certiorari, on' petition of the plaintiff. A motion to dismiss the certiorari was made and overruled, and upon a trial de-novo, there was judgment on the merits . for the plaintiff, from which the defendants appealed in error.

The question is, did , the court err in oyerruling the motion to dismiss the certiorari f

The writ being a substitute merely for the appeal, the case- tons upon the sufficiency of the eause assigned for not taking the appeal.

Erom the petition it appears, that the notes 'were placed in the hands of a constable for collection. Tl^ey were simple demands due by note, and no defence was known or apprehended.

Shorty after, the plaintiff became sick, and knew or heard nothing more of the matter, until after he recovered from his illness, when he learned that during his illness, there was. a trial which resulted in a judgment against him. As to the - merits, they appear in a clear and explicit statement.

It is clear, that the plaintiff was unable to attend the trial and take the appeal; but it is argued, that in such case it was his duty to send an agent. When we consider, however, that no contest was apprehended — that the case was a simple demand upon notes; that the constable had become agent for their collection; See Lee vs. Hardway, 6 Yer. 502 — that he gave no notice of the judgment against his principal, there is no ground for the. assertion that the party is at fault or guilty of negligence in not sending an agent to take the appeal. Such a doctrine would establish a harsh 'and rigid rule, and result in great injustice in many cases.

When the jurisdiction of a justice of the peace was limited to small amounts, a rigid rule on this subject was of less consequence to parties, and bad tendency to 'terminate expensive litigations, in which the costs often became greater than the matter in issue. But now, the jurisdiction of the justice being extended to five hundred dollars, a new trial by jury in a more competent court, has become a matter of greater importance to the interests and rights of parties.

In this state of things, we are not disposed to adopt the strict and rigid rule of practice contended for, which must often have the effect to repel the remedy by certiorari, where no fault or negligence can be imputed to the party, defeat a jury trial in the circuit court, and result in injury to the rights of suitors.

We are of opinion that' the certiorari was granted upon legal and adequate grounds. The case of Napier vs. Person, 7 Yer. R., 300, though not the same, is similar to the present case.

Let the judgment be affirmed.  