
    Kincaid vs. Smith.
    Where a certiorari and supersedeas was obtained upon the ground that the judgment had been paid, and prayed that the execution might be quashed: Held, that if the certiorari is dismissed, judgment cannot be rendered for twelve and a half per cent interest on such dismission.
    Kincaid presented a petition to two justices of the peace for a certiorari. It was stated in the petition, that a judgment had been rendered against him, in favor of Smith, about five years before, and had been satisfied by him; notwithstanding which, an execution had issued upon the judgment, and was about to be levied Upon his property. It was further stated in the petition, that he had previously presented a petition for a certiorari, which was granted, but was afterwards dismissed by the circuit court; from which judgment of dismission, he had prosecuted an appeal in the nature of a writ of error to the supreme court, but failing to have his record taken up in time, the judgment was in that court affirmed; and that afterwards, an execution issued, which he had paid by putting executions and claims in the hands of the sheriff, the proceeds ■ of which were to be applied to the execution against petitioner: that thus, he had in fact paid the iudgment twice. The prayer oí the petition was to have the execution quashed.
    In pursuance of the petition, an order was made by the justices for a certiorari to issue, which was done, and the cause thus brought into the circuit court, where a motion was made to dismiss the certiorari. The motion was sustained by the court, the certiorari dismissed, and judgment rendered against the petitioner for the amount of the debt, with twelve and a half per cent per annum, on the amount of the judgment from the time it was rendered. From this judgment, Kincaid prosecuted a writ of error to this court.
    
      John A. JW Kinney, for plaintiff in error.
    
      P. Lea and Rogers, for defendant in error.
   Peck J.

delivered the opinion of the court.

This case is not embraced by the act of 1807, ch. 81, s. 2, for here has been no trial of the cause. Then comes the act of 1817, ch. 119, which says: “When any cause shall be brought up by certiorari or appeal, from an inferior to a superior jurisdiction, and the same shall be dismissed for the want of prosecution, or for other cause, it shall be the duty of the court dismissing the same, to enter judgment against principal and securities for the amount of the judgment below, with cost and twelve and a half per cent interest. So, too, by the act of 1827, ch. 13. Where a cause is so removed, and the judgment shall be affirmed, twelve and a half per cent shall be added; and by the act of 1829, ch. 16, the certiorari may be made returnable before either the county or circuit court.

The main question in the cause before us is, as to .the allowance of the twelve aid a half per cent upon the dismissal of the certiorari. This must depend upon the object for which the petition is filed. It was not for the purpose of a trial of the cause upon its merits; for though the prayer in the petition is broad enough to cover such a case, yet the petition shows upon its face that the matter complained of was subsequent to the judgment, to wit: a satisfaction of the execution that had been issued by the justice, after the affirmance, which had been had in this court two terms ago.

Had the petitioner made a case proper for the inquiry, he-should have had relief by quashing the execution; as it is clear from the record, that that must have been the -object of the certiorari in this case. We think the court erred in allowing the twelve and a half per cent.

To be-authorized to give these summary judgments, which, as in the case before us, savor of penalty, the way should be clear. There is no act which, by express words, covers a case, where the relief sought by the cer-tiorari is directed to inquiry, touching the execution only; for this the judgment is reversed, and the court must give such judgment as the circuit court should have rendered.

' Judgment reversed.  