Robinson's, Adm'r. v. Prince, Adm'r

3 Del. 389

• Court: Superior Court of Delaware
• Decided: July 5, 1841
• Status: Published

Opinion

By the Court:

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 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.