
    Brannan against Kelley.
    A scirefacias to revive P“°e> ® trall‘ which has Common biy tothe ioth 20th of must be issued is b^th^justice before whom thejudgment was obtained.
    In Error.
    WRIT of error to Allegheny county.
    On the 21st of January, 1818, a judgment was before a justice of the peace, by the plaintiff in error, Christopher Brannan, in favour of Hugh Kelley, the defendant in error, for four hundred and fifty-three dollars six cents ; and on the 19th of February following, a transcript of the judgment was filed in the Court of Common Pleas. On this judgment no execution was issued; and to yamíar^ Term, 1821, a scire facias post annum et diem, issued from the Court of Common Pleas, which recited a judgment recovered in that Court by Hugh Kelley against Christopher Brannan, and called upon the defendant to shew cause why tiff should not have execution against him, according to the force and effect of such recovery. The defendant pleaded •i , , . r , that thejudgment on which the scire jacias was issued, was obtained by fraud, and payment with leave to give the special matter in evidence. The cause was tried in January, 1822, when the jury found a verdict in favour of the plaintiff for five hundred and sixty-one dollars seventy-eight cents.
    The errors assigned and argued in this Court were :
    1. That no scire facias post annum et diem could issue out of the Court of Common Pleas to revive a judgment obtained before a justice of the peace. The scire facias should be issued by the justice, and a transcript of his judgment thereupon filed in the Common Pleas.
    
      2. /That if a scire facias can issue, in such a case, out of the Court of Common Pleas, the writ must pursue the record ; but in the present .instance, there is a material variance, because the scire facias recites a judgment of the Court of Common Pleas, instead of a judgment of the justice.
    3. That no execution had been issued by the justice, and returned nulla bona, which by the Act of Assembly is a condition precedent to the issuing of an execution by the prothonotary. The scire facias therefore cannot be sustained, because it calls on the defendant to shew cause why execution should not issue, when, by his own shewing, the plaintiff would not have been entitled to execution, even if the year and a day had not expired,
    
      Hopkins for the plaintiff in error.
    
      Denny and Forward, for the defendant in error.
   The judgment of the Court was delivered by

Gibson J. —

I have never known an instance in which the scire facias was issued by the justices The practice has, I believe, been universal, to revive by a scire facias in the Common Pleas ; and that ajon'e would be a sufficient reason for not disturbing it. The docketting of the transcript is for the purpose of binding, and having execution of, the defendant’s, land, with which it whs intended the justice should have nothing to do ; the'judgment for the purpose of affecting the land, being considered as in the Common Pleas, and for the purpose of having execution of the person or goods, as still remaining with the justice: and as the scire facias to have execution of the land is a judicial writ, being a part of the proceeding to execution, it is difficult to see any reason why the justice should have jurisdiction of it. There may be terre-tenants, not parties to the original suit, who are concerned only in respect of the land, and against whom the judgment is de terris. These may come in, and raise questions of difficult solution, which could never have been intended to be submitted to his decision; and it would j beside, seem an incongruity for a justice to decide on the propriety of the Common Pleas awarding execution. How could his decision be signified so that the Court might be judicially informed of it and obey it ? It is said that a transcript of his judgment on the scire facias also, should be filed. But that would supersede the old transcript; and, in strictness, seem to break the continuity of the lien, as there would be no apparent connection on the record between the old and new transcript to lead á purchaser to suppose thát the lien of the latter extended further back than, the date of its entry. But the doctrine asserted would directly enlarge the jurisdiction of the justice beyond what was intended' by the Legislature. He cap hold jurisdiction of a matter made cognisable before him, for a sum exceeding a hundred dollars, only where the parties appear voluntarily before him: not in an. adverse proceeding involving more than that amount; and a scire facias is an adverse proceeding involving, under the plea of paymént or set-off, a variety' of matters of indefinite amount. In the case before us, the sum in controversy is more than five hundred dollars. Where,’ therefore, the matter' may be tried by a jury, as it always may be where the Common Pleas get cognisance of it by transcript, the justice cannot have jurisdiction.

Judgment affirmed.  