
    RUSSELL H. KINGSBURY v. WILLIAM H. HUGHES.
    The provision of the 5th section of the ordinance entitled “ An Ordinance to change the jurisdiction of the Courts, &c.,” in regard to the dismission of pending writs of set. fa., cannot be taken advantage of without motion:
    
      Therefore, where the defendant failed to make any defence to a sci. fa., and thereupon judgment was given against him, held that such judgment was regular and valid.
    
      (Allison v. Hancock, 2 Dev. 296, cited and approved.)
    Motion, to set aside a judgment, &c., heard at Spring Term, 1867, of the Superior Court of Granville, before Warren, J.
    At Spring Term, 1863, of that Court, the plaintiff had recovered judgment against the defendant for $621. Upon this judgment a writ of sci. fa. issued returnable to Fall Term, 1866, and at that term judgment was taken by default. Thereupon a writ of fi. fa. having been placed in the hands of the sheriff, a part of the money was made, and returned with the writ to Spring Term, 1867. At this latter term, after notice to the plaintiff, the defendant’s counsel moved to set aside the judgment at Fall Term, 1866, and also the writ of fi. fa. issued thereupon, upon the ground that the court had no jurisdiction to give such judgment.
    
      His Honor refused to allow the motion, and the defendant appealed.
    
      Graham, for the appellant.
    1. The judgment was irregular and void, by the 5th section of the Convention Stay Law. ■
    2. Laches is not attributable to this defendant; for the Convention, acting judicially, (Parker v. Shannonhouse, ante, 209,) authorized a judgment for costs only, and the court could go no further.
    3. The ordinance is remedial, and so, to be construed benignantly. It requires no technicalities of appearance and pleading as in Davis v. Shaver, ante, 18; Sharp v. Pintéis, ib., 34, and Graiuford v. Bank, ib., 136. The sovereign Convention took cognizance of cases pending in court, and directed what judgments should be entered. The plaintiff, as actor, had either to stop short and discontinue his case, or to move to dismiss it at costs of the defendant. Even a confession of judgment would have been void. See State v. Nutt, ante, 20; Burbarilcv. Williams, ib., 37.
    
      Edwards, contra.
    
    The dismissal of the sci. fa. was a personal privilege of the appellant, and was xoaived by him: See 5th section of the ordinance, also the opinions in Griffis v. McNeill, ante, •176, and Crawford v. Bank, ib., 136.
   Reade, J.

The ordinance of the Convention entitled “ An ordinance to change the jurisdiction of the courts and the rules of pleading therein,” provides that “dormant judgments shall only be revived by actions of debt, and every scire facias to revive a judgment shall be dismissed on motion, provided that those now issued shall be dismissed at the cost of the debtor.”

The scire facias in this case was issued before the passage of the ordinance, and the debtor was entitled to have the same dismissed on his motion, and at his cost. Pie did not move to have it dismissed, and judgment was entered against him. He now insists that he is entitled to have the judgment set aside as irregular and void; that the ordinance was an adjudication, and was mandatory to the court to dismiss the scire facias without motion; that the court had no power to render judgment even with the consent of the debtor, any more than a County Court would have the power to render judgment of death for a felony. It is difficult to conceive of any reason why the Convention should have ordained any such arbitrary rule. The parties had a controversy regularly constituted in court. It was not within the power of the Convention to relieve either party from any liability incurred to the other. Possibly it had the power to change the remedy: but why it should arbitrarily change the remedy against the wishes of both parties is not apparent. If it be supposed that it was the purpose of the Convention to favor the debtor, it may be that an arbitrary rule to dismiss the case at his cost, so far from favoring would have very seriously damaged the debtor. Suppose that at the time of the passage of the ordinance, a scire facias had been pending in court for years, until the cost was more than the debt, and the debtor had a good defence, as payment, and he is anxious to avail himself of this defence, and thereby avoid both the debt and the costs. Here, by this construction the ordinance cuts off his defence, and directs the court to dismiss the case and make the defendant pay the costs! It ought not to be supposed that the Convention, under the color of favoring a debtor, would thus have trifled with his rights and imposed upon him a heavy liability, not only without his consent, but against his protestation. It is believed to have been the intention of the Convention to favor the debtor so far as could be legitimately done by allowing him, if he thought proper, to come forward and upon Ms own motion have the scire facias dismissed, if he chose to pay the costs for the favor.

The debtor did not so move in this case, and, therefore, it was proper in the court to give judgment on the scire facias. It was a regular judgment entered according to the course and practice of the court, and the court, at a subsequent term, had no power to set it aside.

The act of 1777, Eev. Code, c. 115, s. 10, provided that no suit should be brought in the Superior Court for a less sum than one hundred dollars, &c.; and that, if any suit were brought for a less sum, the plaintiff should be nonsuited.

In construing the statute, this court said, “The court does not, ex officio, order a nonsuit. It acts only on the defendant’s motion to that effect; for it may be that the defendant would prefer the bar of a verdict for a certain sum, to letting the plaintiff at large again; and the provision is not to be construed in favor of the plaintiff, but the defendant only ;” Allison v. Hancock, 2 Dev., 296. It will be observed that that statute was in terms mandatory upon the court to nonsuit the plaintiff upon the fact appearing; and that it did not provide that it should be done on motion. Yet the court held that the defendant was not entitled to the benefit of the act, except on his motion. But in the case under consideration, the ordinance provides in terms that the scire facias shall be dismissed on motion. And, if the court would require a motion, when the act did not in terms require it, certainly it will require one when the ordinance does in terms require it.

Per Curiam. There is no error.  