Pollock v. Ingram

6 Pa. Super. 556 | Pa. Super. Ct. | 1898

Opinion by

Orlady, J.,

The plaintiff secured a judgment for $78.72, before a justice of the peace, against one Cameron, and caused an execution to be issued thereon, which was directed to the defendant, as a constable, who levied upon and took into his possession certain personal property. A claim of ownership was made to the property levied upon by persons not named in the writ, and the constable demanded a bond of indemnity, which was furnished by the plaintiff. A few days afterward a controversy arose as to its sufficiency, and four days after the writ was issued the constable made return of it into the office of the justice, indorsed, “ Levied upon and not sold for want of sufficient indemnity, goods levied upon being claimed by Geo. W. Campbell and M. Ella Cameron who have filed affidavits in proof of their claims.”

This suit was then instituted before a justice of the peace, under the 12th section of the Act of Assembly March 20,1810, 5 Sm. L. 161, to show cause why execution should not issue against the constable “ for the amount of the debt, interest and costs of an execution in his hands to which he made a false and insufficient return ” and a recovery was had against him.

On the trial of an appeal to the common pleas, a verdict was had against the constable, and the record is brought into this court for review.

The writ of execution was received in evidence under objection to show the amount of the plaintiff’s claim. This did the defendant no harm, and the grade of proof was as high as the docket of the justice. The act of 1810 directs that “in the delivery of the execution to -any constable, an account shall be stated in the docket of the justice, and also on the back of the execution, of the debt, interest and costs, from which the constable shall not be discharged, but by producing to the justice, on or before the return day of the execution, the receipt of the plaintiff or other return as may be sufficient in law.”

In making the levy, the constable undertook the execution of the writ, and on it he made his return. This action against him was for his alleged default after he had accepted the writ, and the amount of the penalty was as certainly fixed by the indorsement on the execution made by the justice as by the one in his docket. The statute required the statement of debt, interest and costs to be on each and both. The officer may not have been strictly the “next’’constable, but it does not appear that he was not the most convenient: Commonwealth v. Lentz, 106 Pa. 643. He was within the jurisdiction of the justice, he voluntarily accepted the writ without objection, which made him responsible for a default or neglect in its proper execution. The first, second, third and tenth assignments are overruled.

The instructions or directions given by the justice at the time the execution was accepted by the constable could not in any way affect his liability, as the performance of his duty was measured by the law and not by the oral instructions of the justice. The rights of the plaintiff in an execution are not-to be increased or lessened by the uncertain interpretations of a justice of the peace. His control over the writ, as far as its service is concerned, ends with its delivery to the constable.

Whether the defendant in the execution was the legal owner of the property, or what was its assessed value were not material as here presented. The act of 1810 is not merely declaratory of the common law; it goes further and fixes a penalty for a failure to perform a duty; and the penalty is the amount of the execution and costs; neither more, neither less. It is his failure to make a return, or making a false return, not his inability to make the money in the execution, which is the subject of inquiry. Hence it is entirely immaterial to show that the defendant had no goods upon which to levy: Bachman v. Fenstermacher, 112 Pa. 331. The fourth, fifth, sixth, seventh, eighth and ninth assignments are overruled.

The evideuce shows that the constable accepted the bond of indemnity and expressed satisfaction as to its form and the sureties at the time it was given. He cannot afterward set up the alleged defect which is now urged as an excuse for his failure to proceed. The fact of his accepting or refusing the bond Avas fairly left to the jury, to wit: “ If he was satisfied that the security was sufficient, he cannot use his poAver arbitrarily and as a mere subterfuge to avoid the acceptance of a bond by saying it was insufficient, Avhen in reality he knew and believed that it was sufficient.” The eleventh, thirteenth and fourteenth assignments are overruled.

The plaintiff’s fourth point was “ If the jury believe that no demand was made upon the defendant by the plaintiff prior to suit brought, or notice, or demand given or made by the plaintiff to the defendant prior to suit brought, pursuant to the provisions of the act of assembly, the plaintiff cannot recover and your verdict must be for the defendant.”

If the act complained of could not have been done in obedience to the commands of the writ, but was necessarily in contempt of it, the production of the writ would not protect the constable, and the case is not within the letter or the spirit of the statute, was held in Lantz v. Lutz, 8 Pa. 405.

In the case before us the process was regular, and such as the justice was authorized to issue. No action could be sustained against that officer. But the plaintiff complains that the constable, after he had a sufficient levy and had accepted a sufficient bond of indemnity, abandoned his levy and returned his Avrit. If these facts be as alleged and the verdict so determined them, the constable is neither justified by his writ, nor protected by the act of assembly of March 21, 1772.

Tbe injury complained of was that it was not “ done in obedience to his warrant ” but in defiance of its mandate, and therefore no demand of a copy was required. The object of the sixth section of the act of 1772 was to protect constables and inferior officers from suffering injury for acts done strictly in obedience to their warrants, by reason of irregularity, for want of jurisdiction in the magistrates.

The authorities collated by Judge Lewis in Mollison v. Bowman, 3 Clark Cases, 281 are convincing, and have been adopted by this court in Commonwealth v. Yeisley, 6 Pa. Superior Ct. 273.

In Commonwealth v. Warfel, 157 Pa. 444, the officer acted in obedience to the warrant, but in this the clear direction of the warrant was disregarded and disobeyed.

The judgment is affirmed.