Bachman v. Fenstermacher , 112 Pa. 331 ( 1886 )

Mr. Justice Paxson

delivered the opinion of the court April 12th, 1886.

This was an action originally before a justice of the peace, and brought into the court below by an appeal, in which the plaintiffs sought to recover from the defendant, who was at one time one of the constables of Northampton county, dam-ages for not returning on or before the rettirñ day'atí'exe'óhtion which’ had been placed in his hands.

The action was based on the 12th section of the Act of 20th March, 1810, Purdon, 267, pl. 19; 5 Sm. L., 137, which provides that: “'On the delivery of an execution to any constable an account shall be stated in the docket of the justice, and also on the back of the execution, of the debt, interest and costs, from which the said constable shall not be discharged, but by producing to the justice on or before the return day of the execution, the receipt of the plaintiffs, or such other return as may be sufficient in law. And in case of a false return, or in case he does not produce the plaintiff’s receipt on the return day, or make such .other return as may be deemed sufficient by the justice, he shall issue a summons directed for service to a constable or to some other fit person who shall consent to serve the same,'and having so consented by accepting of such process, shall be bound to execute the same under a penalty of $20, to be recovered as other fines are recoverable by the Act; but should not a constable or other fit person conveniently be found to serve the process as aforesaid, the justice shall direct it to a supervisor of the highways of the township, ward or district, where such constable resides, whose duty it shall be to serve the same under the penalty aforesaid, commanding the constable to appear before him on such day as shall be mentioned in the said summons, not exceeding eight days from the date thereof, and then and there show cause why an execution should not issue against him for the amount of the above first mentioned execution ; and if the said constable either neglects to appear on the dajr mentioned in such summons, or does not sho.w sufficient cause why the execution-should not issue against him, then the justice shall enter judgment against such constable for the amount of the first above mentioned execution, together with costs, on which judgment there shall be no stay of execution ; and upon application of the plaintiff or his agent, the justice shall issue an execution against the constable for the amount of such judgment, which execution may be .directed to any constable of the county or. any fit person accepting thereof, or to a supervisor as aforesaid, whose duty it shall be to execute the same.”

I have given this section of. this Act entire, as it is to be feared that many constables are either ignorant of its provisions, or disregard it in practice.

A number of assignments.of error have been filed to the rulings of the court' below. The error into which the court fell will fully appear in the Eighth Assignment. The. defendant in his fifth point asked the court to instruct the jury that: .“If the jury believe that the constable could not by the greatest diligence recover anything whatever on the execution, he is not liable for any damages which point was affirmed. And in answer to the defendant’s sixth point (see ninth assignment), the court instructed the jury that “the measure, of damages in such a case is not always the amount of the execution, but the value of the property subject to levy .and sale, when it does not equal in amount the debt.”

Had the action been at the common law for a failure to return the execution, the measure of damages laid down by the court would have been accurate. But the Act in question is not merely declaratory of the common law; it goes further aiid fixes a penalty for a failure to perform this duty; and the penalty is the amount of the execution and costs; neither more, neither less. It says, as above stated, that if the constable “does not show sufficient cause why the execution should not issue against him, then the justice shall enter judgment against such constable for the amount of the above mentioned execution, together with costs.” This is explicit; it does not say for such actual damages as the party may have sustained,, but for the full amount of the execution and costs. In a common law action punitive damages may be recovered where the circumstances justify it, but there can be no punitive damages under the Act of-1810 ; the debt and costs is the maximum, as it is also the minimum. The constable must be fixed for the whole amount of the execution or discharged altogether; there is no middle ground.

:The most satisfactory discussion of this Act will be found in Amey v. Kennedy, 1 Ashmead, 160, where, the late Judge King, who was admittedly one of the ablest jurists of this state, lays down the principle broadly that “ A constable neglecting to make return of his execution to the justice, on or before the return day'thereof, is absolutely fixed for the debt and costs.” The same principle is recognized in a number of the decisions of this court. Parchment v. Aiken, .3 Watts, 27.8; Arbingast v. Hook, 6 Watts,' 229; Hall v. Galbraith, 8 Id., 220; Burkholder v. Keller, 2 Penn. St. Rep., 51; Shover v. Fuñir, 5 W. & S., 457. In the’ last case it was said by the court: “ It will be difficult to keep constables within the line of their duty if they are permitted. to. escape from the consequences of their neglect on such easy terms. The path of duty is plain, and if they do not choose to follow it, on them be the consequences. Something is due to the rights of creditors as well as debtors; nay, it is to the advantage of all to respect the rights of all.”

The foundation of the action is the wilful neglect of the constable. He can avoid the penalty by performing his duty to return the writ. If the goods levied upon are claimed by some one other than the defendant in the execution, and plaintiff refuses or neglects to indemnify him, he can return the writ, and state such fact, or any other fact which prevents his proceeding with it.

Keller v. Clark, 6 W. & S., 534, and Corson v. Hunt, 14 Penn. St. Rep., 510, were cited as in conflict with the foregoing views. We do not so understand those cases. In the former, the court below laid down the inflexible rule that if the constable fails to return the writ within twenty days, he is in all cases fixed for the debt. This court reversed the court below, and held that “ the mere omission of a constable to return his execution within twenty days, does not fix him for the amount of the debt if he has sufficient cause for the delay.” So we say now. The delay does not fix him for the debt if he can show sufficient cause for such delay, and it was shown in that case. In Corsin v. Hunt the constable had made a false return. For such false return an action would undoubtedly lie under the Act of 1810, and it was stated, in the history of that case, that the writ was so brought. But the declaration contained three counts, the last of which was for a breach of a common law duty, and was not, and could not have been, sustained under the Act of 1810. I am clear that the remarks of Judge Rogers upon the measure of damages were intended for the latter count. There could have been no recovery on the count for not returning the writ, for there was a return, although a false one. This view is the more reasonable, as all of Justice Rogers’ utterances upon this point, upon previous occasions, were the other way.

The constable may excuse his failure to make return when he comes before the justice. But it is his failure to make the return, not his inability to make the money in the execution^ which is the subject of inquiry. Hence it is entirely irrelevant to show that the defendant had no goods upon which to levy. If such be the fact, he can so return. But be the defendant never so impecunious, it does not condone the neglect of the constable in not returning his writ. The plain object of the Act of 1810 was to compel the performance of this duty.

The judgment is reversed, and a venire facias de novo awarded.