Silver v. Rhodes

2 Del. 369

• Court: Superior Court of Delaware
• Decided: July 5, 1838
• Status: Published

Opinion

By the Court:

Harrington, Justice.

The declaration sets out both the original judgment and the judgment on the scire facias; but the breach is for neglect of duty in not satisfying the original judgment. It supposes that to be the judgment which the law imposes the obligation to satisfy; and, in our opinion, correctly. That is the judgment which fixes the defendant’s liability; the other is but an award of execution process to enforce the liability. The money is due by the former, though the right to sue out execution for collecting it is given, or rather renewed, by the latter. Possibly an entry of satisfaction on the docket of the latter judgment might be a substantial compliance with the act, and a satisfaction of the former; but this is not the question now ; and if such an entry were held good it would be only because it was in fact a satisfaction of the original judgment.

Was it necessary then for the plaintiff in averring that the sum due by this judgment had been paid, and no satisfaction thereof entered, to deny that the same was “ received from the sheriff or other officer on execution,” in order to entitle himself to his action under the statute I In pleading on statutes, the rule is much the same as in pleading upon any writing which is the foundation of the action. The plaintiff need set out no more than is necessary for his purpose unless there be some proviso or exception, parcel of the clause pleaded, which qualifies or restrains it. If so it must be pleaded, otherwise the foundation of the action is false. Thus, in the case cited from Term Reports, the action was on a penal statute which prohibited the impressment of certain British seamen, unless such seamen should have before deserted from a ship of war. The proviso here was parcel of the prohibition, and the offence could not be described without averring that the seamen impressed had not deserted. But the court distinguished between “ a proviso in the description of the offence, and a subsequent exemption from the penalty under certain circumstancesbetween an exception in the enacting clause, and an exception in a subsequent clause. The reason is not because an exception is not as forcible in one clause as another, but because where it is a part of the clause which gives the action that clause cannot be declared on truly without showing and denying the exception. How is it here! Is this matter a proviso contained in the description of the offence, or a subsequent exemption! It is enacted, that whenever a person to whom a sum is due by judgment receives satisfaction thereof, he shall cause satisfaction to be entered within sixty days, and in default of so doing the right of action is given. This is the enacting clause, describing the offence and prescribing the remedy ; and it may be pleaded truly without noticing the subsequent restriction. The act proceeds in a separate paragraph to point out the mode of entering such satisfaction ; and again, in another paragraph, though in the same section, to exclude from its operation certain judgments before justices of the peace, and cases in which the sum due is received from the sheriff or other officer on execution. This appears to us clearly to be, according to Lord Mansfield’s distinction, “ a subsequent exemption from the penalty under certain circumstances,” and therefore matter of defence, rather than “ a proviso in the description of the offence,” which it would be necessary for the plaintiff to aver against in his declaration.

As to the causes of special demurrer, the matters assigned are,

1st. That no day is assigned for the issuing of the capias ad respondendum in the original action at the suit of Rhodes against Silver; but that writ is described, and sufficiently described, not by its date, but by its number and term, viz: No. 76, to the December term of this court, 1831. This is sufficient. It is at least as precise and certain as a description of the writ by its date, by which we understand is meant the day on which it actually issued; though neither is the usual form of pleading a writ. The best precedents describe it by its teste, number and return term.

2d. It was also objected, that there is no judgment for costs set out, nor the amount thereof specified; and also, that the terms of the judgment on the scire facias are not set out. But the original judgment is pleaded in its terms as a “ judgment for the sum of one hundred dollars with costs” without specifying the amount of costs; and as to the failure to set out the nature of the judgment on the scire facias, it is of no consequence if, as we have supposed, the original judgment is the judgment to be satisfied, and for the neglect to satisfy which the statute gives the penalty.

We, therefore, hold the declaration in this case to be sufficient, and over-rule the demurrer.

Judgment for plaintiff.

On this judgment the plaintiff executed a writ of inquiry in vacation, and recovered $10 damages; the costs of the inquisition being #23.

And at the next term, Rogers, for defendant, obtained a rule to show cause why that inquisition should not be set aside.

On the hearing of this rule it was objected that the inquisition ought to have been taken at bar; and that the party had no right to take it in vacation, though it was admitted that the practice had been to take either course.

The Court said that the 19th section of the act for establishing courts had never been considered as taking away the common law remedy by inquisition ; but as affording an additional remedy by motion for an order in the nature of a writ of inquiry to assess the damages at bar. It is at the option of the party to take either remedy.

But the defendant’s counsel also objected that the judgment did not authorize the inquisition, that being a judgment on a special demurrer; that it was not final.

Per Curiam. — The general rule is, that a judgment rendered on a demurrer follows the nature of the pleading demurred to; the judgment on a demurrer to a plea in abatement, if for the defendant, is, that the writ be quashed; if for the plaintiff, that the defendant answer over; and thus the form of the judgment corresponds to that of the prayer of judgment in the demurrer. Gould Pl. sec. 41, ch. 9.

When a demurrer is joined on any pleadings in chief, as on the declaration, plea in bar, or other pleading which goes to the action, the judgment is final; i. e., if for the plaintiff, quod recuperet; if for the defendant, quod eat sine die. Id. s. 42.

In this case the demurrer is both general and special. It concludes with a prayer, that “ for want of a sufficient declaration in this behalf, the said George Rhodes prays judgment, and that the said William Silver may be barred from having or maintaining his aforesaid action against him,” &c.

On a demurrer to the declaration the judgment for plaintiff cannot be any thing else than quod recuperet. Such demurrer must always go to the cause of action; for if it conclude with a prayer that the plaintiff’s writ be quashed, instead of a prayer in bar, the plaintiff may treat it as a prayer for judgment in bar; and if it be found for him on joinder in demurrer, the judgment would be quod recuperet. Gould Pl. 477, s. 42.

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

The special demurrer is also a general demurrer.

Rule discharged.