Johnson v. Hayes — 3 Del. 486

Majority

p. 486

WILLIAM JOHNSON, Ex’r., &c. vs. C. HAYES and A. HAYES.

Headnote

An action of debt will not lie before a justice of the peace of one county on a judgment recovered before a justice in another county. The remedy is a special one by scire facias.

Certiorari to justice Watson of Sussex county.

The record showed that this was an action of summons upon a judgment rendered by justice Godwin of Kent county, a transcript of which judgment was filed. The defendants appeared, went into trial, and there was judgment against them, to which they pleaded their freehold and obtained a stay of execution.

The errors assigned were — 1st. That the proceeding by summons was illegal, because the act directs that it shall be by scire facias, (Digest 347, §28.) 2d. That the original process was irregular.l 3d. That the justice had no authority to issue a summons in this cause!

The plaintiff replied, that he had the option of proceeding eithe by summons or by scire facias; that the remedy under the 28th sec tion of the act was cumulative, and concurrent with the remedy before existing by action of debt on the judgment. Debt lies on tb judgment of an inferior court, and at common law was the only re

p. 487

medy after a year and day. (1 Chit. Plead. 100.) Such a cause of action is within the first section of our act of assembly; and a specific remedy is also given by scire facias in the twenty-eighth section. The second exception is too general and indefinite. ( 2 Harr. Rep. 290 .) And both it and the third are substantially the same with the first.

Ridgely, for plaintiff in error.

Wm. Johnson, for defendant.

thought that the twenty-eighth section of the act was designed to give a specific and exclusive mode or remedy for the revival and execution of judgments before justices of the peace, whether before the same justice who rendered the judgment, or any other justice o.f the State. The provisions of that section are beneficial both to the creditor and debtor, by facilitating the remedy ■ and saving costs, and by confining the proceedings strictly within the first judgment. All the checks furnished by that section might be avoided in an action of debt commenced de novo, and in which .the first judgment should be used only as evidence; whereas, the act by requiring la transcript to be filed before any other justice by whom proceedings are taken to enforce it, regards it in the nature of a judgment [wherever filed, and requires the proceedings to be in a particular [form by scire facias to show cause why execution shall not be issu-led upon it.

Judgment reversed.