Hukill v. Bailey — 1 Del. 448

Majority

p. 448

WILLIAM HUKILL, deft. b. appellant, vs. ROBERT BAILEY, plff. b. appellate.

Headnote

Appeal from the judgment of John Conwell, Esq. a justice of the peace.

This was an action againt a constable for neglecting to return an execution at the suit of Bailey against James Spencer, delivered to him to be executed. The plaintiff declared in debt on the statute and the deft demurred generally and specially. Dig. 341, sec. IS.

Booth, for plff.

Read, Jr. for deft

Note. This was before the supplement (8 vol. 265,) which gives jurisdiction to the justices of the peace.

The court sustained the demurrer on the authority of Humphries vs. Webster, ante 34.

The remedy is by action on the case founded on the neglect of duty and consequent statutory liability. Perhaps debt on the statute would lie. Chitty says whenever a statute imposes a penalty, debt will lie. Quere.—Is not this a penalty?

Judgment for demurrant.