
    [Lancaster,
    May 24, 1824.]
    VARLEY against ZAHN.
    IN ERROR.
    If an execution issued by a magistrate, having a right to issue it, be s'erved by a constable, whose authority does not extend to the district in which the defendant resides, no suit can be maintained against the constable, for an alleged trespass in executing the writ, unle.ss a copy of it be previously demanded, agreeably to 6th section of the act of 21st oi March, 1772.
    Error to the Court of Common Pleas of Lancaster county, in; an action of trespass, brought by the plaintiff in error, against the' defendant in error, for seizing and selling his goods. The defendant, who was a constable of the city of Lancaster, justified under a warrant from Samuel Carpenter, Esq., an alderman of the said city, by which the defendant was commanded, of the goods and chattels of the plaintiff to levy a certain debt for which Carpenter had given judgment against the plaintiff, who resided in the borough of Marrietta, about thirteen miles from Lancaster. The President of the Court of Common Pleas charged the jury, that the defendant’s justification under the warrant was good; to which the counsel for the plaintiff excepted.
    It was contended, in the court below, on behalf of the defendant, that no demand having been made of a copy of the warrant, agreeably to the act of 21st of March, 1772, the action could not be maintained. But the court were of opinion, that the act of assembly did not apply to a case like this.
    
      Slaymaker and Wright, for the plaintiff in error,
    denied the authority of the defendant in error, as a constable of the city of Lancaster, to act beyond the bounds of the city. The act of the 20th of March, 1818, sect. 5, Pam. L. 210, confers on the select and common councils of the city of Lancaster, the power to make ordinances for its government, and to appoint constables and other officers, to carry them into execution. The councils, afterwards, passed an ordinance, authorising the people of Lancaster to elect constables, and giving to these officers, the powers of all other constables. Under this ordinance, the defendant in error was elected. The powers of the councils were confined within the limits of the city, and they could confer no authority on a constable, or other officer to be exercised beyond those limits. The authority of the officer, must be co-Ordinate with the source from which it is derived.
    
      1'uller and Rogers, contra,
    insisted, that whether the defendant-in error was justified under the warrant or not, this suit could not be maintained against him, because, the plaintiff ha'd not complied with the requisitions of the act of 21st March, 1772, sect. 6, 1 Sm. L. 364, in demanding a copy of the warrant under which the defendant acted, previous to the commencement of the action. This was necessaiy, even admitting that the warrant could not be properly executed by a city constable. The alderman had authority to issue the warrant, and, if he directed it improperly, the fault was his, and not the constable’s, who would have run a great hazard if he had refused to obey it. A constable may justify under an execution issued by competent authority, though the execution be clearly irregular. Jones v. Hughes, 5 Serg. S¡- Rato le, 299. Kerim v. Heacock, 3 Binn. 215. Pryor v. Craig, 5 Serg. <§• Rawle, 44. Paul v. Vankirk, 6 Binn. 123.
    The constables of the city of Lancaster are on the same footing, and have the same authority as the other constables in the county. By the act of incorporation, the aldermen have power to do all acts which may be done by justices of the county; and the latter have power to act within the bounds of the city, in civil cases. . By an ordinance of the city, the same power js given to the constables of Lancaster, as those possessed by constables of other parts of the county; and the 21st section of the actof 20th March, 1810,5 Sm. L. 171, declares, that no execution shall be set aside, if it appear on its face, to have issued in the name of the commonwealth, for the sum for which judgment has been rendered, together with interest and costs, and a day mentioned, on which the return is to be made by the constable, and that the cause of action shall have been cognizable before a justice of the peace. It is plain, that the act of incorporation never intended, to confine the functions of constables, appointed by the councils, or elected by the people under an ordinance of the councils, within the limits of the city, in civil cases. If so narrow a construction should prevail, it will be attended with many inconveniences. Many of the debts of persons residing in Lancaster county are contracted in the city, and the doctrine contended for by the plaintiff in error, would throw obstacles in the way of their collection. A warrant issued by an alderman of the city is to be directed to the constable of the district in which thé defendant resides, or to the next most convenient constable. Of this convenience, the alderman, and not the constable, is to judge.
    
      In reply it was said, that the defendant in error was not within the protection of the act of March, 1772, because he went out of his district to execute the writ. He might as well have gone into another county.
   The opinion of the court was delivered by

Tirghman, C. J.

It has been made a point by the counsel for the plaintiff, that the defendant being a constable for the city of Lancaster., had no authority to serve an execution out of the bounds of the city. W e think it unnecessary to decide that point, as another question has been raised, which is decisive against the plaintiff’s recovery in this action. It appears, by the record, that no demand was made by the plaintiff, previous to the bringing of this suit, of a copy of the warrant under which the defendant acted. By the act of 21st March, 1772, (1 Sm, L. 364,) itis enacted, that no action shall be brought against any constable, for any thing done in obedience to any warrant under the hand and seal of any justice of the peace, until demand in writing hath been made, by the party intending to bring such action, of a copy of such warrant duly certified under the hand of the constable) and the same hath been neglected or refused, for the- space of six days after such demand; and in case a copy is given' in compliance with such demand, and an action shall be brought against the constable without making the justice a defendant, the constable,- on producing and proving such ’warrant/ at the trial of the action, shall be entitled to a verdict in his favour, notwithstanding any defect in the jurisdiction of the justice; and if the action shall be brought jointly against the justice and constable, then, on proof of such warrant, the jury shall find for the constable, notwithstanding such defect of jurisdiction, as aforesaid. The plaintiff contends, that the defendant is not protected by this act, because he went out of his district to serve the warrant. But this is a misconstruction of the law. The defendant was an acting constable, and Alderman Carpenter, who had authority to issue a warrant to any part of the county of Lancaster, directed his warrant to him, to levy on the goods of the plaintiff. If there was any thing wrong in this, the alderman was to answer for it. The defendant had a right to insist on his being made a co-defendant, and then, on proving the warrant, the constable would have been entitled to a verdict. The act of assembly should be construed liberally in favour of constables, who are not supposed to be conusant of the law, and should be encouraged to execute process directed to them by justices of the peace. A justice ought to know the law, and if he exceeds his authority he must look to it. It is right that he should be solely responsible, without drawing in an inferior officer, who trusted to his superior intelligence. Before the making of this act of assembly, a constable was answerable for the execution of process issued by a justice, beyond his jurisdiction. This was thought to be a hardship, to remedy which, the act was made. I am of opinion, that the case of the defendant is covered by the act, and therefore the judgment of the Court of Compion Pleas, which was given in his favour on other grounds, though on this point, the opinion of the court was against him, should be affirmed,

Judgment affirmed.  