COOPER WIEF v. MAY

Full title: DAVID D. COOPER and Wife vs. THOMAS MAY

Court: Superior Court of Delaware

Date published: Jan 1, 1832

1 Del. 18 (Del. Super. Ct. 1832)

Opinion

Spring Sessions, 1832.

Frame for plff. in error.

Johnson for deft. in error.

CERTIORARI. Judgment before a justice of the peace in an action at the suit of Thomas May vs. Nathaniel D. Masten. An execution ground of the invalidity of the binding, that he thinks proper to append (though somewhat out of place) a few forms of binding, which it may be useful for justices of the peace and trustees of the poor to consult. father; guardian; mother. Jus. P.

No. 1. Form of Indenture by the or (if the father do not reside in the state, or if there be no father,) by the or (if there be also no guardian,) by the This Indenture made this ________ day of _________ A. D. 18__. Witnesseth: That A. B. father of Y. Z. a minor, bath, in the presence and with the approbation of C. P. a justice of the peace for _________ county, in the state of Delaware, and in consideration of the sum of _________ dollars, lawful money of the said state, advanced and paid to the said A. B. by G. H. of said county, put and bound, and by these presents doth put and bind the said Y. Z., a white boy, who is now of the age of ________ years ________ months and ________ days, as nearly as can be ascertained, as an apprentice to the said G. H. his executors, administrators and assigns, for and during the term of ______ years ________ months and ________ days, from the day of the date hereof, the said Y. Z. to serve the said G. H., his executors, administrators and assigns, as an apprentice, for the term aforesaid, or until he shall arrive at the age of twenty-one years, if that shall happen sooner than the expiration of the term aforesaid, and no longer. And the said G. H. for himself, his executors and administrators, doth hereby covenant and contract to teach, or cause the said Y. Z. to be taught the art, trade and business of __________________ to the best of his skill, knowledge and ability; to give to the said Y. Z. reasonable education in reading and writing, to wit: ______ years and ________ months schooling during his said apprenticeship; to well support and clothe the said Y. Z. during the said term, and at the regular expiration of his apprenticeship, to furnish him with two suits of clothes suitable to his condition. In witness whereof, the said A. B. and G. H. have hereunto set their hands and seals respectively the day and year aforesaid. A, B. [seal] G. H. [seal] Signed, sealed and delivered in the presence of J. K. and L. M. ________ County, ss. This indenture was executed in the presence, and with the approbation of the subscriber, a justice of the peace for _________ county aforesaid, this ______ day of _______ 18__. C. D. apprentice (as in the former precedent.) coloured poor coloured boy under ten years old, (or mulatto) issued in 1826, on which a sale was made, but no part applied to that execution. Hasten died in 1826, and his widow administered, and No. 2. Form of Indenture by the himself. This Indenture, made this ______ day of _________ A. D. 18__. Witnesseth: That Y. Z. a minor, of the age of fourteen years and upwards, to wit: of the age of ________ years ________ months and ________ days, as nearly as can be ascertained, and who has no father or guardian within this state, hath, in the presence, and with the approbation of C. D. and E. F. two of the justices of the peace, of the county of _________, put and bound, and by these presents doth put and bind himself as an apprentice to G. H. of the said county of ________, his executors, administrators and assigns, for and during the term, c. c. In witness, c. c. _________ County, ss. This indenture was executed in the presence, and with the approbation of the subscribers, two of the justices of the peace for _________ county aforesaid, (acting together and signing this certificate in the presence of each other,) this ________ day of _________, 18__. No. 3. Form of Indenture of a boy. This Indenture, made the ________ day of _________ A. D. 18__. Witnesseth: That A. B. father of Y. Z. a minor, in consideration of the sum of _________ dollars, lawful money of the state of Delaware, advanced and paid to the said A. B. by G. H. of _________ county, in the said state, hath, in the presence, and with the approbation of E. F. a justice of the peace for the said county of _________, put and bound, and by these presents doth put and bind the said Y. Z. a negro (or mulatto) boy, who is now of the age of ________ years ________ months and ________ days, as nearly as can be ascertained, as a servant to the said G. H. his executors, administrators and assigns, for and during the term of ________ years ________ months and ______ days, from the day of the date hereof; the said Y. Z. to serve the said G. H. his executors, administrators and assigns, as a servant, for the term aforesaid, or until he shall arrive at the age of twenty-one years, if that shall happen sooner than the expiration of the term aforesaid, and no longer. And the said G. H., for himself, his executors and administrators, doth hereby covenant and contract to teach, or cause the said Y. Z. to be taught the art, trade and business of _________: ________ to the best of his skill, knowledge and ability; to well support and clothe the said Y. Z. and at the regular expiration of his servitude, to furnish him with two suits of clothes suitable to his condition, and also to pay to the said Y. Z. the sum of ________ dollars in lieu of schooling, it being inexpedient to stipulate for education in reading and writing. In witness whereof, c. c., (attestation and certificate as in form No. 1.) No. 4. Form of Indenture of a by two justices of the peace; or two trustees of the poor; or a justice and trustee. This Indenture, made this ________ day of _________ A. D. 18__, between C. D. and E. F. two of the justices of the peace for ________ county, in the state of Delaware, of the one part, and G. H. of the said county and state, of the other part: — Whereas, the said C. D. and E. F., justices as aforesaid, having received information of a certain male negro child, named fi. fa. fi. fa. sci. fa. Frame Johnson Chief Justice afterwards intermarried with Cooper. An alias was issued in 1829. This was the error assigned, that the alias issued several years after the defendant's death, and without any The case was argued by for the plff. in error, and for deft. in error. After consideration, the delivered the following opinion: —

CLAYTON C. J. —

Now, therefore, or mulatto) (as in form No. 3.) Signed, scaled and delivered, in the presence of poor coloured boy, over ten years old.

"On the 13th May, 1826, judgment was obtained against Nathaniel D. Mason, by default, for the sum of $50. On the same day execution issued, returnable 13th Nov. 1826, and was delivered to a constable; who, on the 22d May, 1827, returned the same with an inventory of the goods and chattels levied on and appraised to $75 84, subject to prior executions, and indorsed `goods sold by D. Mason, constable, for $122 37, and applied to prior executions.' Y. Z. within the said county, who has not parents able to maintain him and bring him up to industry, and in suitable employment", did issue process under their hands and seals, directed to J. K., a constable of said county, commanding him to bring before them at a time and place therein appointed, the said Y. Z. and also his parents; and the said justices, upon the parties, or such of them as could be found, being brought pursuant to said process, having inquired into their condition and circumstances; and it appearing to be a proper case for binding the said Y. Z. according to the second section of the Act concerning apprentices and servants: this indenture witnesseth: That the said C. D. and E. F. justices as aforesaid, in pursuance of the power to them given in the said act, and in consideration of the sum of ________ dollars, lawful money of the state of Delaware, advanced and paid to A. B., father of the said Y. Z. by the said G. H., have put and bound, and by these presents do put and bind the said Y. Z. a poor negro ( hoy, who is now of the age of ________ years ________ months and ________ days, as nearly as can be ascertained, as a "servant to the said G. H. his executors, administrators and assigns, for and during the term, c. c., "In witness whereof, the said C. D. and E. F. justices as aforesaid, (being together, and executing this indenture in the presence of each other,) and the said G. H., have hereunto set their hands and seals respectively, the day and year, first herein written. C. D. [seal] E. F. [seal] G. H. [seal] L. M. and N. O. No. 5. Form of Indenture of a Adopt form. No. 4, merely adding to the recital these words: — "the said justices did, upon the application of the parents of the said Y. Z., postpone the said binding for five days, to enable the said parents, to give sufficient security for indemnifying the county against the maintenance of the said Y. Z., which security has not been given, although, the time aforesaid, has expired." Cooper intermarried with the widow and admr'x. of N. D. Hasten, who died on the 38th May, 1826. On the 13th Oct. 1828, an alias execution issued.

The exception taken in this case is, that the judgment ought to have been revived by scire facias against the adm'rx., before issuing the alias fi. fa., to take the goods in the hands of the adm'rx. After judgment, if no execution be issued within the year and day, it is necessary to revive the judgment by scire facias, and it is irregular to issue a fi. fa. or other execution without such proceeding, unless a stay be given, or the plff. be delayed by writ of error or injunction. The reason why the plff. is put to his sci. fa. after the year, is because where he lies by so long after his judgment, it shall be presumed that the judgment is executed, or that the plff. has released the execution; and, therefore, the deft. is not to be disturbed without being called upon, and having an opportunity of pleading that the judgment is executed, or the release, or showing other cause, if he can, why execution should not be issued against him. It has been said that execution may be sued out, after the year, without a sci. fa. merely upon awarding the writ upon the roll within the year, and continuing it down by vice comes non misit breve to the time of serving the writ. Carth. 283. However, it seems questionable, whether the writ of execution ought not to be sued out within the year, and returned and filed, to warrant the entry of continuances; for in a subsequent case, it was adjudged that an execution cannot be continued on the roll unless it be returned and filed. 2 Wils. 82. Even actually suing out an execution and continuing it by vice comes non misit breve, is stigmatized by Lord Holt as a usurer's trick. 2 Lord Raymond, 208; 2 Saunds. 72; 1 Stra. 100; 1 Crompt. Prac. 344.

But it is not necessary in this case to decide the question, whether it is necessary to sue out a fi. fa. and have it returned and filed, in order to have the continuances entered so as to entitle the plff. to his execution at any time afterwards without a sci. fa.; because, in this case, a totally different question presents itself; not whether by suing out execution and having it regularly continued down upon the roll, or by merely awarding the writ, and continuing it in the same manner, plff. may, at any time after the year, take out execution against the deft., but whether in such case, it is regular to take out an execution against a deceased person where a term has intervened since his death. All that these continuances can effect, is to prevent the judgment from expiring, so as to obviate the necessity of a scire facias against a party to the judgment. If judgment is recovered, and the deft. dies in one month afterwards, if a term is suffered to elapse, so that the execution must be tested after his death, such execution would be irregular; for the rule is, that when a new person, who was not a party to a judgment, derives benefit by, or becomes chargeable to, the execution, there must be a sci. fa. to make him a party. 2 Saund. 6, n. 1; 1 Lord Raymond, 245; 1 Salk. 319-20; 2 Lord Raymond', 768; 2 Inst. 471. So when the deft. dies in term time and execution is taken out immediately after the term, yet as it is necessary to test the execution as of the last day of the term, a day posterior to the death of deft., a scire facias is necessary to revive the judgment against the administrator. 6 T. Rep. 368. Lord Kenyon in this case says `great injustice may be done to creditors if we permit the execution to stand.' The plff. should have sued out a scire facias to revive the judgment against the deft's. executor. The moment a party is dead, the rights of his creditors are fixed. An execution once begun should proceed. I understand by this, that where chattels or other property are, seized in execution, you may proceed to complete the execution at any time after, and that the death of neither plff. nor deft. will stop the execution. But I have met with no case where you can take out execution which must be tested after the death of the plff. or deft. A scire facias is necessary in every such case. But the case under consideration is free from all difficulty. An execution was issued in the lifetime of Masten and completed. No benefit it is true, was derived from that execution. About two years and a half after his death, and probably after the goods were all administered, an alias fi. fa. issued against the dead man, commanding the constable to levy the debt of his goods and chattels, and for want of such goods and chattels to take his body, and commit him to the common jail of the county. Justices of the peace have no stated terms; all their process is continued by adjournment to a special day; the fiction of `continuances upon the roll' cannot exist, because it is not possible. The law will not suppose any thing which is not possible. There had been therefore, in this case, no continuance of the execution for more than two-years after the death of Masten, nor could there in the nature of things, be such a continuance. Every execution from a justice takes effect from its date; it has no relation to a prior time; and in no case can an execution issue against a deft. after his death. This is contemplated by the Act of Assembly, (Digest 347). A judgment does not expire under three years, unless the deft. dies within that time; and in such case, a sci fa. is necessary. If execution be sued out after a year and a day without a scire facias, it is not void, hut voidable only by writ of error. 2 Saund. 6, n.; 3 Lev. 404; 1 Salk. 261. A certiorari is more extensively remedied than a writ of error.

The alias fi. fa. is irregular, and the proceedings must be reversed."

BLACK and ROBINSON, Justices, concurring.

Judgment of reversal.