Montgomery against Poorman, 6 Watts 384

The opinion of the Court was delivered by Rogers, J. The 11th

section of the act of the 20th of March 1810 directs, that every justice of the peace who renders judgment shall receive the amount of the judgment, if offered by the.defendant or his agent before execution, and pay the same over to the plaintiff, or his agent, when required. For this service, the justice is allowed a reasonable compensation, and his neglect or refusal to pay over the money on demand, is declared to be a misdemeanor in office.

The nonpayment of the money is a breach of an official duty, and therefore is not embraced in that act, which confines the civil jurisdiction of the justice to causes of action arising from contract, express or implied. In general, the action for money had and received, is not a proper remedy at common law, to compel the performance of an official duty, although in some cases he is undoubtedly liable to action, at the suit of the party aggrieved. 2 Rawle 208; 5 Serg. & Rawle 48. The remedy against judges of inferior courts, is either by writ of procedendo or mandamus. 3 Bl. Com. 109. In Zeigler v.

Gram, 13 Serg. & Rawle 102, it is said, that in jurisprudence the word contract is generally used to denote a bargain or agreement, and it was plain that in the acts of assembly (referring to the acts giving jurisdiction to justices of the peace) it was used in that sense by the legislature, which had in view those contracts which arise immediately out of a course of dealing between the parties, and not that sort of contract which arises remotely out of a compact of government.

For this reason (although every debt may be said to arise out of a contract, either express or implied) it was held, that a justice of the peace had not jurisdiction of debt for the penalty imposed by the act of the 13th of April 1791, for not entering satisfaction of a judgment. The legislature had in view a contract in the proper sense of the word, and not an artificial agreement, depending on a fiction of law. 2 Penns. Rep. 295. The gravamen of the action, here, is the nonperformance of an official duty; for the act makes it the express duty of the justice to pajq as well as to receive.

Under such circumstances, it would require a strong indication of intention, on the part of the legislature, to induce a belief that they designed to give one justice of the peace jurisdiction to pass upon the official, conduct of a brother justice. No possible good can result from such a construction, although it is easy to anticipate many evils, which would arise from it. But however this may be, on general principles, yet since the act of the 28th of March 1820, it is clear a justice has no jurisdiction of the matter.

The latter act not only makes the refusal to pay a misdemeanor in office, and as such an indictable offence, but it gives the party aggrieved a remedy by petition, to the court of common pleas of the proper county where the justice resides. The acts are in pari materia, and when

an act or acts prescribe a new official duty to a magistrate or other public functionary, and give a remedy, that remedy must be pursued, as well upon the principles of the common law as on the plain directions of the act of 1806. There is but little-weight in the argument drawn from the word “may,” for that word is often rendered shall. Shaeffer v. Jack, 14 Serg. & Rawle 429, and the authorities there cited.

Besides, there are reasons derived from the act itself why the remedy therein pointed out should be pursued; for in the event of an issue, the court before whom the issue is tried have power to decree touching the costs of the issue, as to right and justice shall appertain. And this is a benefit of the justice of which he would be wholly deprived, if the action for money had and received on an implied contract, could be sustained. The justice would be mulcted in costs even when "he acted under a reasonable apprehension that the party who demanded the money was not entitled to receive it.

Nor would he have any opportunity of tendering amends, for the court were of the opinion that no notice was necessary before the commencement of the suit. The act of the 28th of March 1826, is most comprehensive, for it extends to all cases where any alderman or justice of the peace shall receive the amount of a judgment rendered by him, or any part thereof, and shall refuse to pay the same over to the plaintiff, or his agent, or the person to whom it is owing. Judgment reversed.