Miller’s Notebook, 10.[*]
Supreme Court of Delaware, Kent County.
October, 1793.
This case came before the court on the return of the proceedings by a justice of the peace to a certiorari. Miller, for Caldwell, the appellee, upon a suggestion filed of diminution of the record, moved the court for a rule on the justice to amend his return.
Fisher, on the part of the appellant, opposed the motion. He contended that as the record had been returned by a judicial officer, the court ought not to presume a diminution, but rather that it is returned as entire and perfect as the state of facts would admit. That diminution cannot regularly be alleged of records returned from courts of superior jurisdiction. 1 Salk. 266, sid. 40. That the jurisdiction of justices of the peace must certainly be included in that species denominated inferior. 3 Bl.Comm. 37. Their powers as to civil suits are extremely contracted, founded on particular statutes, only extend to small sums, and circumscribed within the bounds of a county. If a justice’s jurisdiction be of the superior kind, what are the other courts to be denominated?
Miller, contra. Courts are properly divisible into supreme, superior and inferior, according to the English distribution. Superior courts are again divided into more principal and less principal. In this last division it would seem that justices’ courts are included. 1 Bac.Abr. 558. The true idea of an inferior jurisdiction involves circumstances and characteristics in no wise applicable to justices’ courts. In its original creation it is confined to causes which arise from contracts made and circumstances originating within the bounds of the jurisdiction. 1 Bac.Abr. 562, 564, 7 Vin.Abr. 20, pl. 1, 2, 8; 22, pl. 8; 29, pl. 13. In England, courts palatinate are considered as superior courts, 6 Vin.Abr. 573, pl. 4. The Court of Eli is considered as inferior, and only differs from courts palatinate in respect of jurisdiction of causes arising or originating wholly or in part within the limits of its jurisdiction. 2 Bac.Abr. 204, 1 Bac.Abr. 633, n. 560, 563. The
Page 652
jurisdiction of justices is not thus contracted. In one sense it extends all over the world, for they may as well take cognizance of contracts formed in China as in Dover; and this limitation of power in other courts as to the place where the cause of action arose is what gives denomination to inferior courts.
It is an essential quality of superior jurisdictions that they be courts of record, and all courts are of record which have the power to fine and imprison. Salk. 200, pl. 1, 1 Bac.Abr. 559, 565. Justices of the peace have this power, 1 Body Laws 142, 157. They are to keep fair entries or records of their proceedings, 1 Body Laws 157. It would seem also that most courts of inferior jurisdiction are founded on charter, prescription etc. But those of superior kind always originate either from positive statute, or immemorial establishment in the common law, 7 Vin.Abr. 27, pl. 1, 7; 1 Bac.Abr. 562; 1 Lil.Abr. 507, G, H. Let it not be imagined this jurisdiction cannot be a court of record, because it consists of one person; there are several courts of record in England where one judge may administer justice, 1 Bac.Abr. 555, 2 Harr. Ch.Pr. 3, s. 10.
READ, C. J.
The Court had not much doubt on the subject through the whole course of argument. But as this happened to be the first application of the kind since we have sat here, we were desirous of having it pretty fully argued, that all doubts might be dismissed. This has been done, and we are now well satisfied that a justice of the peace forms a superior jurisdiction, and, consequently, that diminution may be alleged to their records returned. It appears evident that the situation of this record justifies the suggestion of diminution; therefore, motion granted.