1821. constable of another township. There were two constables for East Pennsboro township, in which Coover resided, and Chambersburg. the process ought to have been directed to one of them. In support of this construction of the Act, the 11th sect. requires the constable who levies on goods, to advertise them "in his township, ward or district." Hamilton, contra, contended, that the judgment being rendered against Coover while constable, the execution might be directed to the constable of another township, and that in general the constable of one township may serve process in another. The words of the 12th sect. do not restrict the service to the constable of the township in which the defendant resides, nor does the spirit of the Act, or any reason. require it. Besides Hildebrand has confessed judgment, and his security is precluded from saying that he was not liable as constable. The opinion of the Court was delivered by DUNCAN J.-The plaintiff in error contends, that the obligation which he entered into, as the security of James Hildebrand, the constable of Allen township, which was "in trust for the use and benefit of all persons who might sustain an injury from him in his official capacity, by reason of his neglect of duty," did not extend to the execution; inasmuch as he was not bound to execute this process against the constable of East Pennsboro. The duties of constable, so far as respects the execution of civil process, depend on the Acts of Assembly giving jurisdiction to justices of the peace. These Acts are consolidated in the Act of 20th March, 1810. So far as respects the jurisdiction of the justice, it is admitted that it is not limited to the township or district for which he may have been commissioned, but is co-extensive with the county. An attempt to restrain it has proved abortive. Whether the alleged inconveniences from the general exercise of the power to issue process throughout the county, would or would not be counterbalanced by the mischiefs that would flow from circumscribing the authority within narrower bounds, the township or district for which they are commissioned, is for Legislative consideration and enactment. CLARK v. 1821. Chambers burg. CLARK v. WORLEY. The justices, by the 2d sect. of that Act, are empowered to issue their summons or warrant of arrest, directed to the constable of the ward, township or district, where the defendant usually resides, or to the next constable most convenient to the defendant; and by the 6th and 9th sections of the same Act, after the expiration of the stay of execution, on any judgment, the justice is required to direct the execution to the constable of the ward or district where the defendant resides, or to the next constable most convenient to the defendant. Allen and East Pennsboro are adjoining townships; so that the justice here has complied with the exact letter of the law. Where the justice proceeds for a crime, he may direct his warrant to any person by name, but where he acts on the civil side, he has no more authority to direct his process to a private individual, than the Court of Common Pleas have to direct their process to any other than the Sheriff. The Sheriff is the officer of the Court; the constables are the officers of the justices, so far as they are authorised by law to command them. The decisions in England, to which we have been referred, have no relation to civil process. When they speak of warrants directed to consta bles, they are for offences. The law may be the same here on such warrants, and in such cases it well may be that on a warrant generally directed to all constables, none can execute it out of his own precinct; but if directed by name to a particular constable, he may execute it any where, within the justice's jurisdiction. 2 Hawk. 86. 1 H. H. P. C. 581. 2 H. H. P. C. 110. Foster's Crown Law, 312. Though I am not to be understood as giving any opinion how that stands; it it is unnecessary to decide it. As the jurisdiction in this case is unknown to the common law, regulated by Acts of Assembly, and where the Legislature have required the justice to issue the process to the constable of the township in which the defendant resides, or the next constable most convenient to him, I cannot but consider the process, if directed to the one or the other, as authorised by law, and that the constable to whom it is directed is bound to execute it. Nor would I restrain this rigidly to the very next constable; or that the justice is exactly to measure the distance from the next constable to the defendant's residence. For where a statute required an affidavit to be made before a justice within the 1821. Chambers. CLARK υ. WORLEY, hundred or near to the same, this is only directory, and an affidavit taken before one, not the next justice is sufficient. burg, Bull's N. P. 186. A penal statute requiring a notice to be given in a market town near the place, does not confine it to the next market town, but gives some latitude, yet not so as to embrace remote places. Foster's Crown Law, 58. Next in a criminal proceeding would be more restrictive; yet in a civil one, it could not be restricted in all cases to the very next, because it would render the execution of the act difficult, and subject to great niceties; but here it was directed to the very next constable to the defendant's place of residence, and that such direction is good, is all that is now decided. Nor is there any difference, where the process is issued against a constable for official misconduct. The 12th sect. of the Act provides, "that the justice shall issue a summons directed for service to a constable or some other fit person, who shall consent to serve the same, and having so consented by acceptance of the process, shall be bound to execute it, under a penalty of twenty dollars; but should not a constable or other fit person be found, the justice shall direct it to the supervisor of the high way, of the township where such constable resides, who shall serve it under the like penalty for refusal." This section proves, first, that it required special authority to enable the justice to issue to any other than a constable; next, that it may be directed to any constable-a constable, not confined to township; and then, that when the Legislature intends to confine the execution of process by an officer, they do so in express terms; as here to a supervisor; it is to be the supervisor of the highway of the township where the defendant resides, but where to a constable it is without restriction. Under the Act of 21st March, 1772, for rendering justices of the peace more safe in the execution of their office, and indemnifying constables and others acting in obedience to their warrants, it cannot be denied, but that protection would have been afforded to Hildebrand in the execution of this process. Though obligations of securities for officers are not to be extended, yet they are to receive a reasonable construction, or it is useless to take them. The sum in which they are bound for constables is very inadequate. Beyond that they are not liable. They know or ought to know what has been the practice. It is universal practice, VOL. VII.-Zz 1821. Chambersburg. CLARK V. not confined to one justice, or one county, but pervading the State, for justices to issue warrants and executions to other than constables residing in the same township with the defendant. This usage would have some weight were the case a WORLEY. doubtful one. But it does not require the aid of any usage to support the opinion of the Court of Common Pleas. For I think that the plaintiff below established a breach of the official duty of the constable; he sustained an injury for his neglect of duty in his official capacity, according to the very tenor of the obligation; that the justice had authority to issue this process against the constable of East Pennsboro to the constable of Allen, by his name of office; that the constable of Allen in his character, name, and capacity of constable, was bound to execute it, and that for this official misconduct and neglect of duty, his security is answerable. My opinion is, that the judgment be affirmed. tors on a joint County. bond given by the testator and another, the defendants pleaded a for held, that an This action was brought by the plaintiff, Thomas C. Reed, on a bond in which William Garvin, deceased, was bound mer recovery: jointly with Philip Stentz, who was still living. The defenaward made dants pleaded in bar that judgment had been obtained on the by arbitrators bond against both obligors in the life time of William Garvin, suit on the which judgment was in full force, &c. The plaintiff replied bond against in a former both obligors, in which an appeal was entered, but the defendant's testator died during the pendency of the appeal, and the other defendant disavowed the appeal, supported the plea. In such joint suit, where one obligor dies after the appeal, a scire facias may issue against his executors to compel them to become parties. The real estate of the testator is not discharged from the debt: whether his personal estate is discharged, query. 1821. burg. REED V. nul tiel record, and on this the parties were at issue in the Dobbins and Chambers, for the plaintiff in error. Cassatt, contra. TILGHMAN C. J.-It is evident, that this record made good the defendants' plea. For by the Act of Assembly, the report of the arbitrators had the effect of a judgment, until reversed. Indeed, as to one of the obligors, against whom the report operated as a judgment, there was not in fact any appeal, because he came into Court and disavowed it. When an obligee has brought a joint action and proceeded to judgment, he never can have another action on the bond, because it is merged in the judgment. I am of opinion therefore, that the judgment of the Court of Common Pleas should be affirmed. Here I might stop; but as the counsel for the plaintiff in error, is desirous to have the sen timents of the Court, as to the mode to be pursued, in order to come at the estate of William Garvin, I shall not withhold my opinion on that subject. The Arbitration Act has introduced a new system, and in order to carry it into effect, some alterations of the common law are necessary. The report of the arbitrators has the effect of a judgment, until reversed on an appeal. It is a new species of judgment, in some respects final, but not in all. If no appeal be entered within twenty days, it is completely final. Execution may be issued on it, or a writ of error brought. being entered, the appellant is entitled to a trial by jury, and judgment will be entered according to the verdict, as usual. The case before us, is singular. One of the appellants dies before trial, and the other, who is said to be insolvent, disa But an appeal executora. |