The defendant was deprived of an opportunity of making any defence by the course pursued by the plaintiff and by the justice. He left under the understanding on his part as well as by those Avho aided him, that the trial could be had in his absence. The plaintiff Avas secured by a recognisance that the defendant would either pay the amount Avhich might be reawered in the suit, or surrender himself upon execution. The fifteenth section of the Small Cause Act authorises the justice in such case to proceed to trial Avithout any personal appearance by the defendant, and in case of judgment, the surety would then become liable upon the recognisance. It was a reasonable expectation that the defendant should have an opportunity of raising the defence, which had already been opened by the gentleman who entered into recognisance for his appearance, and who on the second day signed a written consent to act as guardian. If an infant, the justice Avas bound to appoint a guardian to defend for him, before he could legally try the cause and give judgment against the defendant. The defendant on the first day had sent for the person who offered to act as guardian, for the very purpose of aiding him in his defence. The consent of the defendant, that he should act as his guardian, had sufficiently been shoAvn to the justice by what *441had previously been done in open court, and if an infant, the justice should have accepted the offer to become guardian. If the defendant was not an infant, he should have been permitted to appear by attorney. The judgment must be reversed.

Yevius, J. concurred.

Cited in Steward v. Sears, 7 Vr. 175.