majority">Williams, Ch. J.

The plaintiff in error claims, that he is aggrieved by the judgment of a justice of the peace, of which he had no notice, actual or legal; and that this is the only way known to our practice to avoid it. The defendants in error say, that the error assigned is on the face of the record, and directly impeaches it; which cannot be done; in support *43of which they cite the case of Molins v. Wetby, 1 Lev. 76. The principle, as claimed by the defendants, is correct, and is supported by numerous authorities besides the case cited. Helbut v Held, 2 Ld. Ray. 1414. S. C. 1 Stra. 684. Bradburn v. Taylor, 1 Wils. 85. Wetmore v. Plant, in this court, 5 Conn. R. 541. The question, however, is, do these authorities apply to this case? In the case from Levins, there was a judgment purporting to be rendered by the duke of Ormond, in his court; and the error assigned was, that the duke was not present; [—the object was to try whether his duty could be discharged by deputy;] and the court held, that the absence of the duke could not be assigned for error, it being contrary to the record. And nothing is more clear, than that it was so; for the record alleged, that the judgment was before James, duke of Ormond. In this case, the record alleges, that the justice was present, on the 7th day of August, and adjourned the hearing to the 14th of August. The writ of error alleges, that Burgess attended, on the 7th of August, from 9 o’clock until after 10 o’clock, and the justice did not appear. But it is not alleged or claimed, that the justice was not present on the 7th day—only that he was not present from 9 o’clock until after 10, when the defendant attended. The facts thus stated in the record and in the writ of error are entirely consistent with each other; and as both may be true, we cannot say that one contradicts the other. Should a witness testify, that on the 7th of August, he saw the plaintiff and defendant meet at Norwich, and the defendant committed a gross assault upon the plaintiff; and another witness should state, that he was present on the 7th of August from 9 o’clock until past 10, and saw the parties together, but saw no assault; we should believe the first witness, without discrediting the second. Such is this case. Had the record before us asserted, that the justice appeared between the hours of 9 and 10, and adjourned this cause, then it would be within the principle of the case cited: but now both stand well together. The justice did attend upon the 7th; the defendant also did attend from 9 to 10, and after, on the same day. This objection, therefore, cannot prevail.

It is also claimed, by the defendants in error, that the alleged grievance is not the subject of a writ of error. Whatever remedy may exist elsewhere, we think that by *44the practice in this state, it is settled, as asserted by the late Ch. J. Swift, that where the party has no legal capacity to appear, or where he has no legal opportunity to appear, or where the court has no power to render judgment, a writ of error will lie. 2 Sw. Dig. 790. The answer to this was, that the defendant had a legal opportunity to appear before the justice, and so is not within that class of cases. Whether this is so or not, must depend upon the decision of another question, whether the course pursued by the justice was correct; for if it was, the law must presume that the defendant had opportunity to appear and be heard. Had the justice authority, under the circumstances of this case, to adjourn the cause to a future day, without the knowledge of the defendant. It is a question of practical importance; and though we have no reason to suppose, in this case, that any thing wrong was intended; yet as it is presented for the consideration of this court, it must be settled upon legal principles, and in a manner best calculated to subserve the cause of justice. Suits before justices of peace are all comparatively of small amount, many of them very trivial: of course, it has been common, from an early period, in writs returnable before a justice, that the hour should be fixed for trial. In accordance with this practice, the forms given in the statute are framed for a certain hour. Were it otherwise, a party might come at an early hour and be detained to the last of the day for a hearing, without knowing whether he should ever meet an adversary. It might also prove a serious delay to the magistrate himself. A certain hour is therefore important to all concerned in the administration of justice, in such cases. And although a judgment might be good, if no hour was fixed; yet such an omission would be fatal upon a plea in abatement.

A question then arises, if any hour is fixed, is the court limited to the exact time? It has been a common, if not an universal practice, to wait until the expiration of the hour specified in the writ; and it has not been usual to wait longer, unless a reasonable excuse was shown for further indulgence. This practice we think highly reasonable and proper, in exact conformity with that in the state of New-York. Shufelt v. Cramer, 20 Johns. R. 309.

*45It may be asked, is this rule to be inflexible? Shall the defendant have a right to demand his dismission at the moment the hour has passed, when he has good reason to believe the other party, or the magistrate, is at hand? Shall he be permitted to pass them at the door, because the clock may have struck? We think not. Nor, on the other hand, shall a defendant come with his witnesses from a distance, at the call of his adversary, and be obliged to wait as if no hour was named, and thus be deprived of all the advantages which were intended, by fixing a precise time. Both evils should be avoided; and while the general rule should be, that from the hour named to the succeeding hour, no proceedings ought to be had, unless all parties were present; yet circumstances may occur, which would authorize the magistrate, in the exercise of a reasonable discretion, to vary from it. He or his family may be sick; or an inevitable accident may detain a party upon the road; or other official engagements may occupy the court. No better or safer rule, then, can be adopted than that no judgment can be rendered against a party, who has appeared in time in a justice’s court, except at the hour set, or in a reasonable time thereafter. What is a reasonable time, will be, as in all other cases, a question depending upon circumstances, and governed by a sound discretion. In New-York, when a trial was delayed five hours, the justice being engaged in the trial of another cause, it was held not to be a discontinuance. Chamberlain v. Lovet, 12 Johns. R. 217. Hunt v. Wickwire, 10 Wend. 102. And where the time fixed was 2 o’clock, and the defendant, at 3 o’clock, insisted upon the cause being called, but the justice delayed it 20 minutes, when the plaintiff appeared, and the defendant, on seeing him, withdrew, a judgment against the defendant was held good. Baldwin v. Carter, 15 Johns. R. 496. Wilde v. Dunn, 11 Johns. R. 459. On the other hand, where the defendant was defaulted, but came in while the plaintiff’s witnesses were under examination, and the justice decided that it was too late for him to appear, the court held, that the judgment was erroneous. Atwood v. Austin, 16 Johns. R. 182. These cases, though not authority here, confirm the views which the court had taken of this case, and the result to which we arrived on the hearing.

To apply then the principles of these cases to the facts be*46fore us—Here the plaintiff in error appeared at the hour he was summoned to appear, and waited until after its expiration. Neither the magistrate nor the other party appeared; nor was any explanation given, which required his further attendance. If he might not then depart, it would be difficult to say that he must not continue during the day. Taft v. Grosfent, 5 Johns. R. 353. Having obeyed the summons, having waited the hour, and having no reason to believe there was an intention to pursue the claim, we cannot hesitate in saying he had a right to depart. If the justice was necessarily delayed, it was proper and right that notice should have been given of the fact to the parties; or if the circumstances were of such a character that immediate notice could not be given, such notice ought to have been given before a judgment should have been rendered by default. Whether under peculiar circumstances the justice might not have adjourned to a future day, we do not feel bound to decide; for clear we are, that such an adjournment, without notice to the party in interest, would no more authorize a default than if the same step had been taken at the time of the adjournment in the absence of the party. Wiest v. Critsinger, 4 Johns R. 117. Our statute does not seem to contemplate an adjournment in the absence of a party. Still where it is consented to, by the parties, or where the circumstances of the parties, or the necessities of the magistrate require it, we are not ready to say that it is not allowable. But an adjournment without knowledge brought home to the parties, is a violation of a principle which this court must ever regard, that the right of a party in court shall not be taken away, without notice. Holding, as we must, that the defendant below had a right to leave when he did, it is impossible to say, that he was bound to take notice of this adjournment. If so, there can be no implied notice: and it being conceded, that there was no actual notice, this default was irregularly entered. And although the case of Dyer v. Smith occurred in another jurisdiction, yet the remarks there made are equally applicable to this case. “A man, when he is sued to answer before a justice, ought to know at what time he must attend, and how long he must remain, in order to discharge the duty imposed upon him by law; and having discharged that duty, and no justice having been found, he ought, to be discharged from the *47suit. To suffer a justice to render a judgment against him, at any time afterwards, at his pleasure, would open a door to a most mischievous abuse of judicial power.” 12 Conn. R. 392.

We think, therefore, that the judgment must be reversed.

In this opinion the other Judges ultimately concurred; Hinman, J. at first dissenting.

Judgment reversed.

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