Walsh, Leonard & Jackson v. Haswell , 11 Vt. 85 ( 1839 )

The opinion of the court was delivered by

Williams, Ch. J.

The question in this case is, whether a justice of the peace is authorized to sign a writ of scire facias against bail on mesne process, returnable to the county court. Under a statute very similar to the one now in force, the decision in the case of Sherwood v. Pearl, reported in 1 Tyler’s R.319, was made. The reasons given for that decision are applicable to writs of scire facias now issued, as well as to those which issued under the slatute then in force, viz, that it is a judicial writ, founded upon the records of the court, and should be granted only by those who have official access to, or are keepers of the record. That decision has not been disturbed, and will be found to be fortified by reason and authority.

It is contended for the plaintiff, that the 24th section of the judiciary act authorizes a justice to sign as well writs of scire facias as any other. The terms made use of may be broad enough to comprehend original, judicial, and final writs, and yet, from the subject matter, it is evident that the distinction between original and judicial writs was recognized, and that the section only intended to provide for signing original writs.

By original writs we usually mean the first process, or initiatory step in prosecuting a suit. It issues on the application of the party. In England this writ is the precipe. After this is issued and returned, an attachment issues to take the body ; then a distringas, and then a capias. The first, or original, issues from chancery and is witnessed in the name of the sovereign. When die process is from the court, and is grounded on proceedings before them, it is termed judicial, and emanates from the court where the proceedings are of record. This writ issues under the seal of the court, and is tested in the name of the chief justice.

In this state the original process is either a summons or attachment, and contains a declaration — is founded upon no previous proceeding, but is made out by the party, and is to be signed by a judge, the clerk, or a justice of the peace. It is enacted, that it shall mention the time and place where the court is holden, and shall contain a declaration. The direction, as to containing the time and place of return, may be applicable to judicial as well as to original writs, but the provision, as to a declaration, does not apply to writs of scire facias. The declaration is the words and acts of the plaintiff, and contains his complaint. A scire facia's usually contains nothing more than the recital of the court of whatapdears on record before them, and the supplication of the party for a remedy. The object of it is to carry into effect a judgment already rendered, either by a new execution against the pebtor or against his bail, who appears by the records to be liable. The command is to make known to the person against whom the writ is prayed, and this only by a writ of summons, originally. The statute now provides that it may be by attachment. This writ was not provided for in the 24th section. Another section of the same statute, viz, the 13th, directed the courts to issue writs of scire facias.

It is true, the writ of scire facias is extended to cases where it is necessary to insert something more than what appears from the records, and which may be considered as the allegation of the party — as the writ of scire facias to obtain a new execution where there has been a levy on property not belonging to the debtor, and also on judgments rendered for the penalty on. probate bonds, where a new prosecutor comes in — and also in some other cases. • These are provided for by the statutes, and, unless there is a provision to the contrary, must issue from the same court where the record is.

All our decisions recognize the writ as a judicial writ, emanating from the court. Hence it must issue from the court where the record remains, and the jurisdiction is determined by the record, without regard to the residence of the parties, or the sum in dispute. Hence it may be returnable to the supreme court, notwithstanding the ordinary suits in civil cases must be commenced before the county court; or may be returnable to a justice of the peace, although the sum to be recovered exceeds one hundred dollars.

When the writ is returned, it partakes of the nature of an original action, so far that a plea may be put in, on which an issue may be taken to be tried by the jury, as payment, &c. and we have considered that the statute giving a review applies to a judgment rendered on a writ of scire facias. We have also decided, that an. appeal lay where the judgment was rendered by a justice of the peace, because it was found that such had been the practice in some parts of the state, and also found that case had been before us in Fuller v. Howard, 6 Vermont Reports, 561, respecting which a question has been made, whether an appeal were properly granted,although no notice was taken in the argument of that case, nor by the bench, in their opinion of the question, whether an appeal ever lay from a judgment rendered by a magistrate to the county court, on a writ of scire facias.

I apprehend, however, that that decision made no alteration as to the nature of the writ, the court from which it should issue, or the authority by whom it should be issued.

The writ itself being a judicial writ, founded upon the records of the court, containing no declaration or complaint of the party, but reciting only what appears before the court, we think it should be signed by the clerk, or some one having official access to the record, as was said in the case in Tyler. The jvrit in .this case, being signed only by a justice of the peace, was not properly signed, and the judgment of the county court, which was to that effect, must be affirmed.

Collamer, J., thought that the case of Gilson & Wright v. Gay, 10 Vt. R. 326, in which it was held that an appeal lay from a judgment of a justice of the peace, on a writ of scire facias against bail on mesne process, would give to justices of the peace authority to sign such writs, returnable to the county court, inasmuch as the decision in that case virtually recognized scire facias as an originial process, or as substantially such.