GREGOR v. SLINGLUFF, 1 Miles 210

The opinion of the Court was delivered by StRoud, J. (after stating the facts and disposing of the first point). — On the trial, the defendant’s counsel relied mainly on the second point. The language of the 4th

section of the act. of assembly is, “ that if the party appellant shall enter bail to appeal within twenty days after judgment, such appeal shall be effectual in case the party appellant shall file the transcript of the record of the justice in the proihonotary’s office, on or before the first day of the next term of the court of common pleas of the proper county, after entering such bail as aforesaid.” Two acts ore essential on the part of the appellant, to effect an appeal: 1. Entering bail within twenty days after judgment; 2.

Filing the transcript of the record of the justice in (he proihonotary’s office, on or before the first day of the next term of the court. To the accomplishment of either of these duties, the concurrence of the justice is indispensable. Cun it be doubled then that, to refuse his concurrence in respect to either, isa denial of an appeal 1 The correctness of the charge upon this point cannot therefore, it appears to me, be questioned. On the third point, although not free from difficulty, I entertain a decided opinion that the verdict, cannot be disturbed.

Assuming the charge to be correct in the assertion that Slrmhouer, the constable, was not entitled to his appeal, and that though allowed to him by the justice it was a nullity, and that the scire facias against Gregor, founded upon it, was, on that account, likewise a nullity; yet this very circumstance constituted, in itself, a complete defence for Gregor, and might have been taken advantage of in the court of common pleas on an appeal; Masteller v. Trimbly, 6 Binn. 33; Eason v. Smith, 8 Serg. & Rawle 343 ; although a certiorari is a more appropriate and an equally efficacious remedy. Herrigas v.

M’Gill, 1 Ashmead 152. Without doubt, a person against whom a judgment is given by a justice of the peace, on a subject not within his jurisdiction, is not remediless, although he may be denied both the appeal and certiorari. Such a judgment would be coram non judice, and subject to examination in a collateral action. Griffith v. Frazier, 8 Cranch 9 ; Lessee of Kemp v. Kennedy, 1 Peters's C. C. Rep. 36 ; Walker v. Turner, 9 Wheat. 546, 548.

But as an appeal or certiorari would have been a direct and speedy and certain remedy, it was an important right of the party, and ought to have been granted without the slightest objection. Having decided on the point reserved in support of the verdict, on an assumed construction of the 12th

section of the act of assembly of 1810 most favourable to the defendant, this opinion might close here. But, it is proper to state distinctly, that my opinion on this point, and which alone gives colour of defence to the piesent action, is, as was shown by the authorities cited on the argument against a new trial by the plaintiff’s counsel, in diiect conflict with a decision of the supreme court, which has been noticed with commendation by Judge Hallowed, as president of the court of common pleas, and practially recognised by the present able incumbent of that office.

The point to which I allude is, that a constable against whom proceedings have been had for neglect in regard to a legal return to an execution, is fixed by the decision of the justice against him, and not entitled to an appeal. I asserted this to be the law in my charge to the jury, from an examination of the act. of assembly during the trial, not, being aware at the time that any opinion of an adverse character had ever been expressed. But in Pritchett v. Moore, 1 Ashmeads Rep. 26, Judge Hallowed, in illustration and by way of enforcement of the decision in that case, thus expresses himself: “fay the 12th

section of the same act, (act of 1810) the judgment against a constable, in case of bis not paying over money received by him in the execution of his office, is directed, as in this case, to be without slay ; and yet, the supreme court, at, their last session in Sunbury, in Crouse v, Mann, (not reported, but taken from the manuscript note book of Judge Gibson) decided, that in such a case the right of appeal still remained, and they actually reversed the judgment of the common pleas who had dismissed it.” The decision alluded to by Judge Hallowed remains ««.reported ; a circumstance in itself calculated to throw some doubt on the authenticity of Judge Hallowed’s information and at all events giving countenance to the inference, that the court, were not satisfied with the decision.

Under this persuasion I may be permitted, I trust, without, incurring (he charge of presumption, to say, that a comparison of the 19th with the 12th

section of tire same act of assembly, irresistibly compels the, conclusion, that a positive inhibition of an appeal to the constable in the case contemplated, was designed by the legislature. The expressions in the 12th

section are: “ if the said constable either neglects to appear on the day mentioned in such summons, or does rsot show sufficient cause why the execution should not issue against him, then the justice shall enter judgment against such constable, &c., on which judgment there shall be no slay of execution, and upon application of the plaintiff or his agent, the said justice shall issue an execution against the constable for the amount of such judgment.” And the 19th

section reads thus: “any constable who has or may hereafter give security, agreeably to law, for the faithful performance of the duties of his office, and afterwards, on neglecting or refusing to perform such duties, shall have judgment rendered against him for such neglect or refusal, and on being prosecuted for the recovery of such judgment, becomes insolvent, abandons his country, or from any other reason it, becomes impracticable for such judgment or judgments to be recovered from such constable as aforesaid, or where a constable makes such default and abandons bis country before judgments are had against him, then, and in such case only, the justice before whom she judgment or judgments stand unpaid, shall be, and is hereby authorized, &e,, to issue a scire facias, and proceed against such bail for the recovery of judgments had as aforesaid, in the manner that constables are now sua-ble, SAVING ONLY THE RIGHT OP APPEAL TO SUCH SURETIES.” That, the language, “in the manner that constables are now sua-ble,” refers to the provisions of the 12th section, is loo plain to admit of a doubt ; and when it is directed that the constable’s sureties shall be proceeded against by way of substitution for their absconding principal, on the very judgments rendered against him, and in the manner in which he might be sued, with the single exception that they' should be entitled to appeal; what is this but to say that the constable had not such right?

And wluu mode of

interpretation is so reasonable as to construe one part of a law by another part of the same law? The terms, “without stay of execution,” followed in immediate connexion by I lie injunction to the justice “to issue execution” at the instance of the plaintiff, naturally import that the point of final adjudication had been reached previously. A reluctance to admit of a construction which would infringe upon trial by jury has induced courts to disregard the ordinary rules of

interpretation of statutes in many instances, and to consider as equivocal what otherwise would be deemed eminently perspicuous and precise. Upon this principle the decision in Guilky v, Gillingham, 3 Serg. & Rawle 93, that an appeal may be taken on a scire facias post annum et diem, before a justice of the peace, is placed, and I think rightly, as not a word in the act of assembly contravenes this construction in the slightest degree ; and the same ground is taken in Pritchett v.

Moore, without the aid, however, of a parallelism in the essential point, the language of the act; while, in all probability, Crouse v, Mann would be found without any other support, though in manifest collision with the plain meaning of the 12th

section viewed in combination with the 19th section, a combination which must have been overlooked, or the decision would have been otherwise. Rule discharged. See Evans Fry, 3 Watts's Rep, 208, reported after this decision was made.