Tappan v. Bacon

Citations

• 25 Del. 113
• 2 Boyce 113
• 78 A. 294
• 1910 Del. LEXIS 78

Syllabus

<p>Costs — Right to Costs — Actions “Cognizable Before a Justice of the Peace.”</p> <p>Rev. Code, 1852, amended to 1893, p. 852, c. 114, § 7, provides that if one sue in any court upon a cause of action cognizable before a justice of the peace under chapter 99, and shall not recover more than $50, besides costs, he shall not recover costs, unless he shall have previously filed with the prothonotary a written affidavit that plaintiff had a just cause of action against defendant exceeding in amount $50. Rev. Code, p. 813, c. 110, § 22, provides that the real estate of a decedent shall not be bound by a judgment against his executors or administrators, unless such judgment be rendered upon a verdict or referee’s report or a rule of reference. Held, that the purpose of section 7 was to compel creditors to resort to justices' courts to collect small debts, so that where the maker of a note was dead,, and it was impossible to satisfy the note out of his personal estate, and the executor had not sold the realty for the payment of debts, so that the only remedy was to obtain a judgment, which would be a lien upon the realty, a suit on the note to obtain such judgment was not one “cognizable before a justice of the peace,” within that section, though the amount recovered was less than $50 and no affidavit was filed as provided, and hence plaintiff was entitled to costs.</p>