Sherfy v. Fisher

2 Rawle 147, 1828 Pa. LEXIS 97

• Court: Supreme Court of Pennsylvania
• Decided: October 20, 1828
• Status: Published

Opinion

The opinion of the court was délivered by

Tod, J.

— We are all of opinion that the constable is, not liable. There is no allegation of.bad faith, or of wilful default in him. 'The idea that a Certiorari put a stop to all proceedings was probably a mistake'of the justice. Having made a record of the delivery of the executions to the constable, it was his,business also to make a record of taking them back again unexecuted.' It was in effect asupersedeas. He evidently intended to stop the executions. We need not inquire whether the constable was bound at his peril to decide on' the point of law; for it does not appear that the reason for the counteripand was made known to him. ‘ If the justice in any case had the power, then it would-seem to follow that the obedience of the' constable is excusable. At common law a mistaken order may be countermanded. In this commonwealth, it is believed, that after judgment is obtained, the justice usually carries on and superintends the collection of, debts without the intervention of the plaintiff. And there are sundry.occasions on which the act of assembly makes it the duty of the justice to interfere and. arrest the doings of the constable,. Whether execution has been executed or not; as when bail is given for an appeal, or for a stay, the defendant, if he applies to the justice in twenty days, and pays the costs accrued, shall have the execution arrested and annulled, (Purd. Dig. p. 453, sect. 6.) So if, within thirty days, he shows that he was from home and could not appear on the day of hearing, or was sick, •and that he has a set-off against the plaintiff’s demand, (Ibid. p. 453, sect. Ty) so, without any limitation of time, if the parties agree to a rehearing.

The fault here appears to have been in the justice, and hot in the constable.

Judgmeht reversed.