Hiecock v. Hiecock , 1 D. Chip. 133 ( 1797 )

By the Court.

The writ of Audita Querela in this case is allowed by statute, and if it cannot be supported by statute the writ must abate. The statute expressly requires that sufficient security be taken for the re-delivery of the property, &c. by the Judge (of the Supreme Court) or Judges of the County Court allowing the writ. If no security be taken, the writ ought to abate, or rather to be set aside because irregularly issued. The security is to be taken by way of recognizance ; and the Judges have no authority to take a recognizance but that which they derive from the statute. This is nearly the same point which was rightly decided in the case against Downer which has been cited by the defendant’s counsel. That in this case the Judges are Judge? of a Court of Record, does not vary the case, for they did not in this case act as a Court. That the power of taking recognizances in certain cases is incident to a Court of Record may be true; but neither Judges nor Justices of the Peace have power at common law to take security by way of recognizance for the prosecution of suits — their power in such case is derived solely from statute. — The recognizance in this case taken by one Judge only is therefore void. It was obviously the intention of the Legislature, that the two Judges allowing the writ should exercise their discretion as to the sufficiency of the security, and the securitv must be taken on the allowance of the writ. It would be J mischievous to permit a debtor to make use of this writ to discharge his body or property from what appears to be a legal demand of the creditor, without having first given the security required, and permit him afterwards, to save his process, to enter a recognizance in Court.

Judgment that the writ abate.