Worknot Use of Earle v. Millen's Adm'r

1 Del. 139

• Court: Superior Court of Delaware
• Decided: July 5, 1833
• Status: Published

Opinion

The Court

sustained the demurrer, 'Mr. Justice Black delivering the opinion.

Black, J.

—On the first scire facias the administrator of Millen confessed a judgment and by this admitted that the debt of the plff. or the original judgment had not been paid or discharged at the time of such confession—this admission stands on the record. To the present scire facias the administrator pleads that prior to the rendition of the judgment on the first sci. fa. this original judgment had been fully satisfied by process of execution, and that nothing remained due on it when the judgment on the first scire facias was rendered —thus denying what by the record was formerly admitted. The entry “that the amount shall be ascertained” does not vary the case, for it admits that the judgment has not been satisfied, but provides a mode for ascertaining, not whether any thing is due, but. how much. If the present pleas be true, then the admission made on the record on the first sci. fa. was not true. These pleas aver in effect that the admission was not true.

If a point has been once litigated or at issue between the parties and be settled by a verdict or admission of a party, in any subsequent proceeding between the same parties, this point cannot be controverted.

The judgment on the scire facias was not as was intimated by the deft’s, counsel, an interlocutory judgment. It was an absolute and final judgment that execution should go for the amount of the penalty of the judgment: the provision “that the amount should be ascertained” had reference to the sum that should be endorsed on that execution as the real debt that should be- levied under the execution.

The deft, in consequence of the admission on the record by the confession of judgment on the scire facias is estopped from denying the truth of that admission or of pleading the matters set forth in the third, fourth, fifth and sixth pleas. The demurrer therefore must be sustained.

Frame and Uuffington, for plaintiff. Johnson, for defendant.

Clayton, C. J.

having been counsel for the plff. on the first sci. fa. declined sitting on this cause but concurred in the opinion.

The case came on for trial at the next term on the plea of payment. The probate offered was taken before Evan H. Thomas, “Register for the probate of wills and granting letters of administration in and for Newcastle county,” and it was objected to on the ground that such an officer had not authority to take it. On the other side it was contended that the Register had power ex officio to administer oaths in any case where it is proper that an oath should be taken. He is a judicial officer; has judicial power and is recognized as such by the constitution. Art. 6, sec. 1. “The judicial power of this State shall be vested in a court of Errors and Appeals, Superior Court, &c. “a Registers Court,” Justices of the Peace, &c. &c.”

Dig. 419. “The Chancellor, each of the Judges, every Justice of the Peace and every Notary Public in this State shall have authority in every case in which an oath or affirmation is necessary, or proper, to administer such oath or affirmation.”

The Court (the Chief Justice not sitting) was divided on this question; Blade, J. for sustaining the probate, and Robinson, J. against it.

The plff. then produced a probate sworn before the Mayor of Philadelphia, and properly certified, which was admitted, and

The plaintiff had a verdict.