Opinion
March, 1799.
Wilson for plaintiff. Ridgely for defendant.
Plaintiff had been a constable, had received from defendant accounts against many individuals to collect, to the amount of £35. Defendant proceeded against him under 2 Del. Laws 1051, s. 23, by one warrant for the whole, got judgment before Nathanael Young for the whole. This assigned for error.
Defendant's counsel insisted that under the Act requiring security by recognizance of plaintiff and one or more sureties to be given the clerk etc. issuing the certiorari (2 Del. Laws p. [1013]), this certiorari must be quashed, because plaintiff did not join in the recognizance.
Both points were argued much at length. Under curia advisare wilt three days.
There are only two points: First, whether the certiorari ought to be quashed for want of bail. We think this certiorari was no supersedeas, and I think it ought not to have been allowed; but the certiorari remaining so long, the record being returned, we think it ought not to be quashed. Second, whether the Act of Assembly has been pursued, and in what manner it ought to have been. We think that by the twenty-third section a separate warrant ought to have issued for each and every default, and that a contrary practice would be contrary to the design of the Act, which only extends to £12. Let the record and proceedings below returned be quashed, but without costs, for that is the practice.
Incomplete docket entries follow this case in Wilson's Red Book, 230, and are omitted here.