Opinion
October, 1814.
Ex relatione Mr. Clayton.
Judgments reversed.
Certiorari to bring up the proceedings and records from the court of a Justice of the Peace.
The first record was as follows:
Kent County ss. (seal)
The State of Delaware
To any constable of said county greeting:
You are commanded that you summon William Layton to be and appear at my office in Kent or before me or some other justice of the peace in and for said county on the 8th day of May next to answer a complaint of Joseph Polk to me made in a plea of debt above forty shillings and not exceeding £12. Given under etc. 28th April, 1812.
John Wilds.
Thomas Brown, constable, returns, summoned as within commanded.
Thomas Brown, Constable.
Kent County ss. May 15, 1812.
Personally appeared Thomas Brown, late constable, before me, the subscriber, one of the justices of the peace in and for said county, and was duly affirmed etc. to the truth of his return on the above summons, and that he personally summoned him, William Layton, four days previous to the return day.
Before me, John Wilds.
Joseph Polk v. William Layton.
Action for money had and received. The plaintiff claims twenty-seven dollars and thirty cents as money levied and made by the said William Layton, constable, by the sale of the goods etc. of Reuben Taylor on executions, which sum of twenty-seven dollars and thirty cents was legally applicable to a certain execution against the said Reuben Taylor in favor of the said Joseph Polk, May 15, 1812. Judgment for plaintiff by default for debt, $27.30, costs 56 cents.
The record in the second cause was precisely in the same words with the single exception that the debt demanded in that case was $25.22.
ASSIGNMENT OF ERRORS.
The said William Layton by Thomas Clayton, his attorney, saith there is manifest error in the record and proceedings aforesaid in this, to wit, that the debt demanded by the said Joseph Polk against the said William Layton amounted to the sum of fifty-two dollars and fifty-two cents, and for the purpose of recovering the said debt the said Joseph Polk instituted two suits before the said Justice, demanding part of the said debt in each suit; and judgment was accordingly given for a part of the said debt in each of the said suits, although the said debt was one entire demand of which the said Justice had not cognizance. Therefore the said William Layton prays that the proceedings and judgment aforesaid and others appearing on the said proceedings may be reversed and held for nothing.
T. Clayton.
These causes came on today together.
It appears upon the face of the records that the cause of action was divided in order to recover the money before a Justice of the Peace, the whole of the demand being above £12, which is not allowable. The proceedings are therefore erroneous.