Ingle v. Homman , 1 Watts & Serg. 414 ( 1841 )

The opinion of the Court was delivered by

Sergeant, J.

The Act of the 20th of February 1833, supplies and varies the provisions of the 16th section of the Act of the 20th of March 1810, and enlarges the relief in several instances, besides adding a penalty to compel the forthcoming of a justice’s docket and papers.

The question before us is, whether, if a judgment be rendered before á justice of one district, and he resigns his office, a justice of another district may proceed on a transcript of the docket being delivered to him. It is contended that such proceeding can be had only before the neighbouring justice of the same district. But we think it clear the provision in relation to the neighbouring justice applies only to the case of the delivery of the docket. That must be made to the neighbouring justice of the district, and this is required for the convenience of suitors who may come from a distance, and may thereby be able easily to find the docket, and the magistrate authorized to proceed upon it. But where the docket is not delivered- to any justicé, but retained by the justice or his representatives, after removal, resignation, or death, and a transcript is delivered, there is no reason why the neighbouring justice only should be required to proceed upon it rather than any other justice; and the words of the Act are express, “ that if any justice or alderman, having resigned, or been removed, or the legal representatives of a deceased justice or alderman, shall choose to retain the docket, he or they shall, on demand, deliver a certified transcript of any judgment or proceedings in any suit thereon, on oath or affirmation, to the party or parties interested; and the justice of the peace or alderman to whom said docket or transcript shall be delivered, shall issue process and proceed théreon in the same manner and with like efieCt. as the original justice or alderman might have done.” There is fió provision that when the docket is retained the transcript sh&IS be delivered to any particular justice, but that is left optional with the party obtaining it.

The proceeding here was by summons, which we think good. No scire facias is prescribed by the Act of 1810, though it has been considered as a very proper proceeding on a prior judgment in analogy to the proceedings in courts of common law. The summons answers the same purpose. The same judgment is rendered, and the expense of the writ is, by the fee bill, less than that of a scire facias.

Judgment reversed, and venire facias de novo awarded.