Hukill v. Staats

Superior Court of Delaware

Hukill v. Staats

2 Del. 385

DecidedJuly 5, 1838

StatusPublished

This text of 2 Del. 385 (Hukill v. Staats) is published on Counsel Stack Legal Research, covering Superior Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hukill v. Staats, 2 Del. 385 (Del. Ct. App. 1838).

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Opinion

Per Curiam:

Harrington, J.

The proceedings in this case are irregular. They are founded on the act of 6th February, 1833, but are not in conformity with that act. That act provides that, whenever an execution shall be delivered to a constable, if he shall not at the return day produce the plaintiff’s receipt for the money levied, or shall not make such other return as may be sufficient in law, or shall make a false return; the justice shall, on request, issue a summons commanding the said constable to appear and show cause why an execution should not issue against him for the amount of the first execution; and if he shall fail or neglect to appear, or does not show sufficient cause why the execution should not issue against him, then the justice shall give *387 judgment against him for the amount of the first mentioned execution, together with the costs.

Rodney, for defendant below. W. H. Rogers, for plaintiff below.

The first error in this proceeding is, that the summons instead of being to appear and show cause why an execution should not issue for the amount of the original execution, being $26 75 and 1 55 costs,, is a summons in the nature of an original cause of action to appear and answer the demand of the plaintiff to the amount of $33 11.

It does not sufficiently appear for what neglect of duty this proceeding was taken. It was not for neglecting to produce the plaintiff ’s receipt, for it was not pretended that the money was levied; neither was it for making a return which was insufficient in law; it must, therefore, have been for making a false return; yet that does not appear from the record, the statement being merely that it was for neglect of duty.

The judgment rendered in the case is not such as is warranted by the law. The neglect of duty which renders the constable liable for any thing, or the making a false return, renders him liable for the whole amount of the original execution, together with the costs; and this is the judgment which the act requires the justice to enter; yet the judgment in this case is for a different sum.

For these reasons the judgment and proceedings in this case must be reversed.

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Per Curiam:

Harrington, J.

The proceedings in this case are irregular. They are founded on the act of 6th February, 1833, but are not in conformity with that act. That act provides that, whenever an execution shall be delivered to a constable, if he shall not at the return day produce the plaintiff’s receipt for the money levied, or shall not make such other return as may be sufficient in law, or shall make a false return; the justice shall, on request, issue a summons commanding the said constable to appear and show cause why an execution should not issue against him for the amount of the first execution; and if he shall fail or neglect to appear, or does not show sufficient cause why the execution should not issue against him, then the justice shall give *387 judgment against him for the amount of the first mentioned execution, together with the costs.

Rodney, for defendant below. W. H. Rogers, for plaintiff below.

The first error in this proceeding is, that the summons instead of being to appear and show cause why an execution should not issue for the amount of the original execution, being $26 75 and 1 55 costs,, is a summons in the nature of an original cause of action to appear and answer the demand of the plaintiff to the amount of $33 11.

It does not sufficiently appear for what neglect of duty this proceeding was taken. It was not for neglecting to produce the plaintiff ’s receipt, for it was not pretended that the money was levied; neither was it for making a return which was insufficient in law; it must, therefore, have been for making a false return; yet that does not appear from the record, the statement being merely that it was for neglect of duty.

The judgment rendered in the case is not such as is warranted by the law. The neglect of duty which renders the constable liable for any thing, or the making a false return, renders him liable for the whole amount of the original execution, together with the costs; and this is the judgment which the act requires the justice to enter; yet the judgment in this case is for a different sum.

For these reasons the judgment and proceedings in this case must be reversed.

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Bluebook (online)

2 Del. 385, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hukill-v-staats-delsuperct-1838.