
    *E. J. Camman against Randolph and Randolph.
    ON CERTIORARI.
    If a dofendanl is arrested upon a warrant, and enters into bond (according to the tenth section of the small cause act, Rev.. .Law», 630), for his appearance before the justice, and fails to appear at the day, the justice cannot proceed to trial in his absence, nor render judgment against him.
    
      Hardenburgh moved to reverse the judgment of the justice, because the judgment had been entered against the defendant, in his absence, and before he had appeared to the action. The facts were these: a warrant had been issued against Oamman, and the constable had arrested him and taken bond (according to the tenth section of the small cause act, Pev. Latos 630) for his appearance before the justice on the 1st of August. Oamman did not appear before hlio justice at the time mentioned in the bond; the plaintiff however appeared, and proved his account; and the justice gave judgment against Camman for the amount of the plaintiff’s account. This judgment, it was contended, was irregular, because there never had been any appearance by the defendant before the justice. It was not authorized by the 13th section of the act, (Pev. Laws 632) because that section refers only to the default of defendant, in not appearing according to the condition of the recognizance (which is taken by the justice himself, after there has been an appearance of the defendant) and does not embrace the case of a failure to appear, according to the condition of the bond taken by the constable under the tenth section.
    
      Scott, contra, contended
    that the entering into bond to the constable was equivalent to an appearance, and that the justice was authorized in entering the judgment.
   Per Curiam.

Let the judgment be reversed. 
      
      The proper proceeding in a case like this would he, for the plaintiff to prosecute on the bond.
     