
    Gunn vs. Benson, Hunt & Co.
    It is not necessary to issue a notice on scire facias to revive a judgment rendered before a justice of the peace, that has remained dormant for one year; and no certiorari will lie to bring up and quash an execution issued upon such judgment.
    Where a warrant issued, returnable before a justice of the peace, upon a note payable to B. H. & Co. in the individual names of each partner, to wit, B. H. & P. and the execution issued in the name of B. H. & Co. It was held, that the substance had been pursued, and that there was not such a variance as would authorize the proceedings to be quashed upon a certiorari.
    
    On the twenty-ninth day of May 1830, a warrant was issued by a justice of the peace, in the name of Sylvanus E. Benson, Samuel Hunt and John Patterson, against John C. Gunn, the present plaintiff in error. On the twenty-second day of June 1830, a judgment was given on a note made payable by said Gunn to “Benson, Hunt & Co.” and upon which the warrant was issued, -for forty-two dollars and forty-six cents. No execution was issued on this judgment until the thirty-first day of December 1832, when an execution issued thereon, which recited that “Benson, Hunt & Co.” had recovered a judgment, &c. and commanding the same to be levied, and the money rendered to “Benson, Hunt & Co.” This execution was levied upon the property of Gunn, who thereupon filed his petition for a certiorari and super-sedeas, setting out that no execution had issued within one year from the rendition of said judgment, and the same had not been revived by scire facias, and that the said warrant and execution were variant, one being in fa-vour of “Sylvanus E. Benson, Samuel Hunt and John Patterson,” the other being in favour of “Benson, Hunt & Co.” and prayed the same might be superseded and quashed. At the next term, after the filing of said cer-tiorari, the same was dismissed by the circuit court. From this decision of the circuit court, the defendant, Gunn, appealed in the nature of a writ of error to this 11
    
    
      S. Jarnagin, for plaintiff in error.
    
      T. L. Williams, for defendants in error.
   Peck, J.

delivered the opinion of the court.

We have no act of assembly requiring a scire facias to issue when the judgment of a justice of the peace has remained dormant (and without execution issued) for one year; nor are we aware of any practice upon the subject. However reasonable it may be in such cases to issue notice, we do not feel it our duty to make the rule in this case, for the first time; especially, as it is not pretended that any defence could be made were notice to issue. In cases where payment has been made in satisfaction or part satisfaction of such judgments, the practice is to allow a certiorari, (Peck’s Reports, 362,) though that is not this case.

In contemplation of law, the justice’s court is always open. In most of the matters appertaining to his jurisdiction, be is enabled to do justice to the parties before him. There was no necessity for the certiorari because of the delay in issuing the execution. In its form the substance has been pursued, and that has ever been held sufficient in proceedings before justices of the peace. The certio-rari was properly dismissed, and the judgment must be affirmed.

Judgment affirmed.  