
    Bowen against Bell.
    
    On the return of a summons served persouaily, in a Justice’s Court, the defendant did not appear, and his default was entered; and the plaintiff, after stating his demand, not being prepared to prove it, asked for an adjourn ment, which was granted; and, at the adjourned day, the. defendant appeared, and tendel oda plea, which the Jus' tice refused: Held, that as the defendant appeared, and tendered a plea, as soon-as the \ plaintiff was ready to prove his demand, the plea ought to have been received.
    
      IN ERROR, on certiorari, to a Justice’s Court. Bell sued Bowen before the Justice, by a summons, which was personally served. On tile return day of the summons Bowen did not appear. The plaintiff stated his cause of action to the Justice, but being unprepared to prove it, asked for an adjournment of the cause for six days, which was granted. At the day to which the cause was adjourned, the defendant appeared, and tendeied a plea to the action. The plaintiff objected to receiving the plea, and the Justice overruled it, on the ground, that the defendant was bound to appear and plead at the return of the process; and his default having been entered, it was too late to offer a plea. The Justice, accordingly, gave judgment for the plaintiff below, for the amount proved by him.
   Platt, J.

delivered the opinion of the Court. I find no? thing in the statute expressly regulating the practice in a case like the present; but, I am inclined to the opinion, that the Justice erred. There had been no delay occasioned by the defendant. The plaintiff was not ready, on the return of the summons, to proceed ex parte; and the adjournment was at his request. The only effect of entering the default of the defendant for not appearing on the return of the process, was to give the plaintiffliberty, if he thought proper, to proceed, at that time, ex parte. But, as the defendant appeared, and tendered a plea, as soon as the plaintiff was ready to produce proof of his demand, I see no good reason for rejecting the plea. (Sweet v. Coon, 15 Johns. Rep. 86.) The judgment must, therefore, be reversed.

Judgment reversed.

END OF JANUARY TERM.  