Gardner v. Jones — 20 Johns. 356

Majority

p. 356

Gardner against Jones.

Headnote

The provi T%ril *5* ch^53 )S for'the recovery of value of 25 an^ction^af gainst a constable who neglects to return an execution, extends to cases arising under the act extending the jurisdiction of Justices of the Peace, passed Jlpril 10, 1818, (sess. 41. ch. 94.) with this difference, that under the latter act the constable has 40 days within which to levy and return the execution.

IN ERROR, on certiorari to a Justice’s Court. Gardner brought an action of debt against Jones, before a Justice’ for the amount of an execution issued on a judgment in a Justice’s Court, in favour of the plaintiff, against one Dennison, for 31 dollars and 46 cents, which the defendant bad received as a constable, on the 3d day of October, 1821, and which was not returned by him until the 18th of March,

p. 357

1832. The plaintiff claimed the amount of the execution, under the 13th section of the twenty-five dollar act. There was a verdict and judgment for the defendant.

The only question before the Justice was on a point of law, whether the act extending the jurisdiction of Justices of the Peace, (passed 10th of April, 1818, sess. 41. ch. 94.) gives the same rémedy, by action of debt against the delinquent constable, as the act for the recovery of debts to the value of 35 dollars, (passed April 5, 1813. 1 N. R. L. 387. sess. 36. ch. 53.) The act of the 10th of April, 1818, contains no express provision on the subject; but the twelfth section declares, that “ all the provisions of the former act, shall apply to this act, except as herein otherwise directed.” The 11th section of the act of 1818, allows the constable 40, instead of 30 days, for levying the execution. In this case, the constable neglected, for above five months, to return the execution. We are of opinion, that the provision of the act of 1813, in favour of creditors, was intended to he adopted and extended to cases un= der the enlarged jurisdiction of Justices of the Peace; and that the judgment of the Court below was, therefore, erroneous.

Judgment reversed.