¶1 overruled all the exceptions :—
¶2 1st. The action is stated to have been on an account. The justice had therefore jurisdiction. The account itself is a part of the evidence, and need not be set out on the record. 2d. Either party may claim a trial by freeholders, and on such claim the justice shall appoint them. But the parties may also, by mutual consent, refer the case to referees of their own choosing, and a judgment rendered on their report would be good, provided they were appointed by the justice and regularly sworn. This appears from the record, to have been the proceeding in the present case.
¶3 3d. The suit may have been for a debt due to the wife dum sola, to recover which.it was proper to join the wife, and the Court will intend this after judgment. 4th. The judgment entered by the justice was an absolute judgment for $25 00 and costs. It might be discharged by complying with the condition mentioned by the referees, but this compliance must be shown affirmatively. 5th. The act directs a stay of execution for six months in the case of a freeholder, unless he shall waive his privilege, or unless the plaintiff, or one of them (if several,) or some credible person, shall make oath or affirmation that he, (or she) has good ground to apprehend, and does verily believe, that if the stay of execution for six months be allowed, the sum due by the judgment will be lost. The record in this case does not show, and the exceptions do not suggest, that the defendant was a freeholder. The strong inclination of the Court was, that the privilege of freehold must be claimed ; otherwise, how is the justice to know whether the defendant is a freeholder. The act requires the first pi’oeess against a freeholder to be a summons. But it was decided in New Castle county, that where the defendant was taken on a capias and went into a trial without pleading his freehold, he could not afterwards object to the original writ. The Court also intimated an opinion that if an oath were necessary in this case, Mary Ralph would be a credible person within the provisions of the act competent to make it.
¶4 Harrington, X. thought that the fact of Mrs. Ralph making oath.» and the proceedings of the justice in taking it, showed that the defendant was a freeholder» This oath would be taken as the proper one, if the justice had merely certified that it was in due form of law? but he goes further, and states what the oath was, and shows that it was not such as is required by the law. It should, additionally, have been i-educed to writing and signed, tie also doubted whether the wife of a party, though properly joined with him in an action, could legally do any separate act. Judgment affirmed.