Majority
p. 342Hale against Angel.
Headnote
on“a judgment in Justice’s returned at all mon law right of the party remains unimnmyedbiingd an action of debt on the juagment. Where an ex-IN ERROR, on certiorari to a Justice’s Court. Hale brought an action of debt, in the Court below, on a judgment obtained in a Justice’s Court, the 16th of April, 1816, for 10 dollars and 73 cents. Execution had been issued on the judgment the 3d of August, 1816; but the constable absconded, and it was never returned. The defendant rested his defence solely on the ground, that, according to the eleventh section of the twenty-five dollar act, no action of w¡j] ]je on a judgment of a Justice’s Court, until after 3 ° 7 execution has been returned unsatisfied. On that ground, a verdict was given for the defendant below, on which the Justice rendered judgment.
The 11th section of the act (1 N. R. L 387. sess. 36. ch. 53.) directs the Justice to issue execution on his judgment, and provides, that if the execution be returned, unsatisfied, it may be renewed, or the party recovering the judgment may bring an action of debt thereon, &c. There are no negative words, that the party shall not sue on the judgment until the execution has been returned. The common law right of bringing an action of debt, as soon as a judgment is recovered, remains unimpaired. The statute does not give the action of debt, but is merely explanatory of the common law right. We are, therefore, of opinion, that the judgment of the Court below ought to be reversed.
Judgment of reversal.