Robinson v. Prince — 3 Del. 389

Majority

p. 389

JOEL ROBINSON, Adm’r. of Charles Robinson vs. ADAM PRINCE, Adm’r. of Doct. A. Prince.

Headnote

justice of the peace cannot issue a sci. fa. on a judgment against an administrator to try the question of assets subsequently acquired.

This was a certiorari to William M‘Caulley, Esq., a justice of the jace.

The record returned by the justice set forth a single bill for the iyment of seventeen dollars with interest, executed by Charles Robson in his lifetime, to Dqct. Abner Prince, bearing date the four-enth of February, A. D. 1839, to which was subjoined a warrant jthorizing any justice of the peace to enter judgment. No judg-ent was entered in the lifetime of the parties. After their death, a immons was issued by justice M'Caulley, at the suit of the plaintiff ilow, as administrator of the obligee, against the defendant below, ! administrator of the obligo^ returnable on the twenty-eighth of

p. 390

September, 1840. On that day the defendant below appeared and confessed judgment in favor of the plaintiff below, for eighteen dollars and seventy cents, the debt and interest, and fifty-six cents costs, and pleaded no assets.

On the twentieth of September, 1841, a scire facias was issued by the said justice, returnable the twenty-eighth of the same month, at the suit of said plaintiff against the said defendant, to show whether there were a.ssets in his hands, as administrator of Charles 'Robhison, deceased, applicable to the judgment of the 28th of September, 1840. The parties having appeared on the return day of the scire facias, the cause was continued, at the instance of the defendant, to the 7th of October, 1841; at which time the parties and witnesses appeared. “After hearing, the justice finds assets in the administrator’s hands, applicable to the judgment of the 28th of September, 1840, and sufficient to satisfy it.”

The following exceptions were taken on behalf of the defendant below: — 1. That the original judgment rendered on the 28th of Sep-i tember, 1840, was rendered without determining the plea of no assets. 2. That the justice had no authority to issue a scire facias onl the alledged judgment of the 28th of September, 1840. 3. That the| finding or judgment of the justice on the 7th of October, 1841, oi assets in the administrator’s hands, was without any legal authority.! 4. That there is error in fact in this, that the defendant below withinl fifteen days after the finding or judgment of the justice of Octoberl 7th, 1841, that there were assets in his hands, craved an appeal which the said justice refused to allow; and also r’efused to make any! entry on his docket showing that an appeal had been craved, and refused and disallowed by the justice.

The case was argued by Mr. Jam.es A. Bayard, for the defendanll below, and Mr. Chandler, for the plaintiff below.

Mr. Bayard relied on the first three exceptions, and therefore did not attempt to sustain the fourth exception.

The jurisdiction of justices of the peace in suiti for the recovery of small debts is specially conferred on them by[ statute; and the forms of process and mode of proceeding are prel scribed. In the exercise of this jurisdiction, they are restricted t<f the powers delegated to them. If they exceed those powers, theil proceedings are erroneous. In the present case, the scire facial which was issued, is not authorized by the statute. The cases wherl the writ of scire facias may bo issued are particularly mentionecl

p. 391

and. in no part of the statute is the authority given to a justice of the peace to issue a scire facias, requiring an executor or administrator upon a judgment rendered against him as such, to appear and. show whether there are assets in his hands applicable to such judgment. The question of assets ought to have been tried by the justice, when the defendant below appeared to the summons, on the 28th of September, 1840. His confessing judgment as stated in the record, was merely a confession of the execution of the single bill by his intestate, and that the principal and interest were unpaid; for at the same time the defendant pleaded no assets. The justice, taking no notice of his plea, entered judgment against him, without hearing and determining the only matter that was in issue between the parties. The opinion therefore of this court is, that on the first three exceptions, the proceedings below be reversed.

Chandler, for plaintiff below.

J. A. Bayard, for defendant below.

Judgment reversed.