The Chief Judge delivered the opinion of the Court, Tyler, Judge, dissenting.
The Court consider the intention of the statute of March 10th, 1787, which must govern in this case, to be, that the writ of scire facias must be signed by one of the Judges, or the Clerk of the County Court, and therefore the present being signed by a Justice of the Peace, issued illegally.
The distinction between original process, which tnay be signed by a Judge or Clerk of the County Court, or any Justice of the Peace within the County; and the judicial writ, which must be signed by the former, is of importance.
The judicial writ, being grounded upon the records of the Court, should be issued only by those who have official access to, or are keepers of the records. These writs are sometimes issued of right, and sometimes by discretion. In the former case the Clerk may sign, in the latter a Judge only. But the original writ may be signed by any magistrate in the County, because in him the signing is a mere mink*328ierial act, requiring neither the exércise of discretion, or intimacy with the records.
Daniel Chipman and Samuel Miller, for plaintiff. Amos Marsh, W. C. Harrington, and Levi House, for defendant.The question whether Robert Works or the present defendant could have taken advantage of this defect in error, seems to be aside of the present issue, which is, whether the defendant can avail himself of it in the present action.
The Court consider, that the defendant, by the plaintiff’s having produced the records and proceedings on the judgment in scire facias against him in evidence upon the issue to the Jury, is by the act of the plaintiff so far made privy to the record, that he may take advantage of the illegality of the issuing the writ of scire facias. A party takes a judgment upon a defective process at Iris peril, if it be such a defect as is waived by imparlance or pleading, the adverse party shall not maintain error against him; but whenever he attempts to use the record against a third person, especially a public officer, he may at such time take advantge of the defect.
The plaintiff’s claim, as has been well observed, is a demand of strict statute right; and, to shew himself entitled to it, he must convince the Court or Jury, that he has strictly pursued it in all substantial parts of his proceedings.
Let judgment be entered, that the verdict of the Jury be set aside, and that defendant have his costs..