Burton's Lessee v. Pretyman

1 Del. Cas. 441

• Court: Supreme Court of Delaware
• Decided: October 15, 1797
• Status: Published

Opinion

Per Curiam.

We cannot allow it to be questioned whether the rule of the Court of Appeals is operative. The only question which can be is whether the proceedings in this case are pursuant to that rule. That Court sitting but once a year, it would be absurd to adopt the rules of Westminster Hall in relation to its practice. The rules of practice must be those which it has made, and such as conform to the nature of the court. This Court will take notice of the rules made by the Court of Appeals and, as far as belongs to them, will aid in carrying them into effect. The question before us now is whether the habere faciasissued and was executed regularly. In fact, the errors not being assigned according to the rule of the court above, the habere was not superseded. There may be a question how the clerk is to-take notice of the fact, whether he may not require a certificate from the clerk above; but in all cases he acts at his peril. But. if in fact his conduct is warranted by the rules, there will be no irregularity. It would seem from Barnes 212 that a certificate is not necessary; it would be safe however for the clerk to. require it. As to the execution of the writ, though delivered to the sheriff after the errors filed, yet as no notice of their beings filed was given to the sheriff or the party, the execution of the writ was regular.

The motion denied.