2 Rawle 208 | Pa. | 1828
The opinion of the court was delivered'by
— No evidence was-sent up except the copy of the receipt, which it is not necessary to copy.' The ■'only statement of the evidence was contained in the charge of the judge of the Court of Common Pleas. This is a suit for money had and received. The évidence shows, that the money claimed by th.e-plaintiffs, was received by the defendant in his official character, and by virtue of his office of a justice of the peace, being the amount of debt, interest, and costs, in a number of suits brought before him by different plaintiffs against various defendants,- in which trials were had, and judgments given, and executions issued, and put into the hands of Adam Greigor, as deputy of John-Greigor, the constable. John Greigor paid over this money to the defendant. It is now alleged, that the constable was not liable: That the debt, .interest, and costs, were not due, or‘had been paid: That there was mistake or fraud in the settlement and receipt of the money, &c., and that the defendant should refund. It is objected, that no notice was served on the defendant, agreeably to the -provisions of the act of assembly. We have no dquht, the law requires a previous'notice before this suit can be sustained. The money was received by the defendant as a justice of the peace, received by him in his official character. The computation was by him as a justice of the’pea'ce; all entered in his dockets as a justice of the peace. If there is fraud, it is official fraud; and if'mistake, it might have been rectified without suit, if notice had been served. We think the plaintiffs cannot recover.
By the act of assembly .of 1810, the justice, as justice, was to receive the money,
Our act of assembly is only a transcript of a British statute. In England, justices have no civil jurisdiction, strictly so called; in other words, no debts are sued for before them. When-our act passed, justices had jurisdiction of debts not exceeding five pounds; now, of debts not, exceeding one hundred dollars; and more than nine-tenths of their business is collecting debts. Although'no case can be found which goes to show that the British act was applied to protect a justice receiving a debt by mistake, it does not follow it is not a protection here, or would not be there (in fact, in some cases, since the revolution, where they do enforce the payment of money, it is a protection,) if they had jurisdiction; (for any thing done in execution of his-office, will embrace civil as well as criminal matters;) and it has been so considered, I think, whenever it has come before'our courts. See Kennedy v. Shoemaker, 1 Browne, 61. Slocum v. Perkins, 3 Serg. & Rawle, 295. Prior v. Craig, 5 Serg. & Rawle, 44. Jones v. Hughes, 5 Serg. & Rawle, 301. Lake v. Shaw, 5 Serg. & Rawle, 517.
The statute supposes some wrong to have been done, some excess of authority, or want of authority, or of jurisdiction; for where every thing has been done according to law, the act is useless.
There are cases in which it is discussed, what will protect a justice,' and he has been protected as far as the law and the safety o'f the community will bear. This is, however,, a different question from, in what cases is notice to be given. The -words of the act, and the object of the act, agree, and no case would more require notice, that amends might be tendered; and if money has been paid over, that it might be got back and restored, than such a one as the present.
The act. was made to prescribe a certain.requisite; it requires a notice where the act was. done in execution of his office; it does not discriminate'between mistake,'malice,'or fraud," and I do not see how we can. It proyides a certain rule. If we leave this, the court, or the jury, .must make the rule; and this would result in any thing but a certain or uniform rule.-
I doubted,, on account of the last section, limiting the time ofaction; but if not brought'within that time, and the justice has received the money, which he does not pay over to those entitled, there is a remedy, and a summary one, to compel him to pay it over.
— 'The plaintiffs’ testator, John Greigor, being elected constable, not acting in the office himself, but executing it by his deputy, Adam Greigor, and that deputy being dead, he pays over to Wills, the justice, the round sum of three hundred dollars, and takes a receipt in very general terms.' Not long after having made this payment, the-principal himself, John Greigor, also dies, and his administrators, alleging mistake or fraud, and that no such.sum. was due to Wills, t-he justice, bring this action to recover back money, which' they undertake to show, belongs to the estate of their decedent. The court below, without entering into the merits of the cause, were of opinion, that the plaintiffs were barred of their action, by reason of their having omitted to give thirty days previous written notice, under the act of assembly of 1772, entitled, “An act for rendering justices of the peace 'more'safe in the execution of their office, and for indemnifying constables and others for acting in obedience to their warrants.” ' -
This act of assembly being a transcript almost verbatim fro.m the English statute of .24 Gfio. 2, c. 44, s. 6, it is. very true, that our legislature, in adopting the very words,, probably intended to adopt also the construction which had been put upon the same words by the English courts of law: It is very true also, that by the English decisions, the statute has been largely applied in favour of the officers of justice, and has been made to extend to every case where a man acts bona fide in the supposed execution of his duty. Norris’s Peahe, 619. Indeed, so liberal has been the construction of the statute -in that country to protect the officers of the law, that the court, in one case, expressed an apprehension, that if it was to be carried any further, actions of this sort would b'e entirely defeated. But even in England, I am not aware, that there can be found a precedent, or dictum,' in any book of reports, or elementary treatise, requiring thirty days’ written notice, previous to a suit in nature of debt. The authorities are all the other way, and seem to me decisive. “ These statutes,” says Peahe, “ being made to protect the officer against actions which go to charge 'him with money, by way of damages, for an irregular execution of his office, have been held, pot to extend to actions of replevin,”. Norris’s Peake, 617. Bull. N. P. 24. ‘“Some excise officers (who are protected by the same, or a similar statute,) having,' as such, illegally extorted a sum of money, it was held, that the statute did not apply, to the case, and that the notice was unnecessary previous to the commencement of an action of assumpsit, to recover back the money.” Norris’s Peake, 620. “ This clause, (requiring notice, &p.) Embrace's actions of tort only, and does not extend to actions brought against an officer for money had and received, which-had been levied by him under a conviction which was afterwards quashed.” 2 Stark. Ev. 810. 2 W. Black. 1330.
Now, I take it, that it is by no means the rule in Pennsylvania, to extend the construction of the statute for the protection of officers,
Judgment affirmed.