Humpheries v. Webster , 1 Del. 34 ( 1832 )

CERTIORARI. This was an action brought "by "Webster against Humphries, the constable, for the amount of an execution, at the suit of the said Webster against Andrew Alston, which the said constable had not returned agreeably to the command thereof; and thus rendered himself liable. Dig. 341.

The question was, whether the. justice had jurisdiction.

The Court said that an action for neglect to return an execution by which the constable becomes liable, ought to be a special action on the case founded on the statute. It must be in tort. An action for money had and received, could not be sustained. Though the Act makes the constable equally liable as if the money had been received, it cannot affect the form of the remedy, which must show the special matter on which the constable's liability arises, and must therefore, be a special action on the case, founded on the neglect of duty, and the statutory liability. Such an action is not within the jurisdiction of a justice of the peace.

Judgment reversed.