Moses Gillingham obtained from Isaac Worrell Esq. a justice of the peace, a scire facias on a judgment formerly rendered by the same justice, for the said , ' , _ . , Moses Gillingham against Joseph Guilky. Gillingham obtained judgment on the scire facias, and Guilky appealed to the Court of Common Pleas, by whom the appeal, was dismissed, on motion of the appellee. Two reasons are given, in favour of the dismissal of the appeal. One, that no appeal lies on a scire facias. The other, that the appellant had not given the security required by law, on entering his appeal.
On examining the record, it does not appear, that any security was given. This was good cause for dismissing the appeal. But, the counsel in this case, have expressed a desire, that the Court should give an opinion on the first point, viz. whether an appeal lies on a judgment on a scire facias. It appears, that different opinions have been entertained on this question. The Court of Common Pleas for the county of Philadelphia are against the appeal. But in other districts, the judges are in favour of it. I see no reason why an appeal should not lie. A scire facias, though in strictness a judicial writ, is in fact, in nature of an original action. The defendant may plead to it. Payment, since the judgment, or a release, are good pleas. Why, then, should the justice be permitted to decide upon matters of this kind, without controul ? There is nothing in the act of assembly which exempts suits upon scire facias from an appeal; either expressly, or by inference. And the nature of the case would induce this Court to favour the appeal, unless it was the plain intent of the legislature to take it away. I am, therefore, of opinion, that the appeal in the present case could not have been dismissed, if it had appeared, that security was given by the appellant. But that not appearing, the dismissal was right. The judgment should therefore be affirmed.
Gibson J. concurred. Duncan J. concurred.Judgment affirmed.