Hill v. White

GOLDTHWAITE, J. — 1. The circuit court very properly refused to quash the proceedings of the justice of the peace, because the summons was returnable more than thirty days after it was issued. If this was an irregularity in the justice of the peace, it is not available to the defendant, after appeal. The statute regulating appeals from justices of the peace, provides that no defect in the summons, warrant, or other proceedings, before ’the justice, shall be noticed in the appellate court. 2. This action is not like a demand for an unliquidated account, so as to be within the influence of the decision in the case of De Sylva v. Henry, (3 Porter 132.) It is more like an action on a specialty, or promissory note, as the demand is ascertained and fixed by law. The party is entitled to institute as many 'Suits as he has certificates; although the courts, on application, might consolidate in the same manner, as in suits on specialties, <or promissory notes. To authorize the defence of a former re [578] ■covery, it should have been shown that the former suit was for ■the same identical certificate; and it was not sufficient to show ■that one suit could have covered both certificates. 3. It was not the duty of the witness to leave his certificate with the clerk of the circuit court, to be taxed in the bill of costs against Collins & Co., nor was he bound to await the return of •an execution against them; after proving his certificate within five days from the term of the court when the suit against Collins & Co. was determined, and receiving his certificate, his right of action against the defendant was complete. (Aikins Digest, 452, P. P. 1837, p. 26.) Let the judgment be affirmed.