
    Oliver Hunt vs. Abraham Gulick, Ralph P. Lott and Samuel G. Wright, Assignees of David Chambers.
    1.. In an action of debt against a constable for neglect of duty in serving an execution, an averment in the state of demand that the execution was not returned within thirty days will not vitiate it.
    2. The right of a plaintiff in execution to recover against a constable for neglect of duty in the service of an execution is a vested right, and a repeal of the statute rendering the constable liable will not defeat the recovery.
    3. Por neglect of duty in the service of an execution the constable is liable to pay not only the debt, or damages and costs mentioned 'in the execution, but also the interest.
    
    This was a certiorari to the Court of Common Pleas of the county of Somerset. The following is the state of the case agreed upon by the parties, viz :
    Abraham Gulick, Ralph P. Lott and Samuel G. Wright, *206] assignees *of David Chambers, the plaintiffs below, brought, in the month of August, 1822, an action of debt before John Stout, Esq., one of the justices of the peace in and for the county of Somerset, and filed the following statement of demand:
    The plaintiffs demand of the defendant the above sum of eighty-five dollars and'nine cents; for that the plaintiffs heretofore, to wit, on the twenty-fifth day of January, A. D. 1812, obtained a judgment in a certain court for the trial of small causes in the said county of Somerset, whereof .Josias Ferguson, Esq., then was and now is a justice, against one John M’Michael, for forty-eight dollars and twenty cents debt, besides sixty-eight cents costs of suit, in all forty-eight dollars and eighty-eight cents; that afterwards, viz., on the twenty-seventh day of January, then instant, the said Justice Ferguson issued, an execution in behalf of the said plaintiffs against the said John M’Michael, the said defendant on the judgment aforesaid, for the said debt and costs, commanding among other things, the defendant, Oliver Hunt, he being then one of the constables of the township of Montgomery, in the said county, and the same to him being directed and delivered on the day and year aforesaid, to levy and make the debt and costs aforesaid of the goods and chattels of the said John M’Michael, and the same to pay ovor to the said plaintiffs, or in their absence to tlio said justice, and for want of sufficient goods to take the body to jail, and to make return of his proceedings thereupon had within thirty days, according to the provisions of an act entitled “ An act constituting courts for the trial of small causes,” passed March 15, 1798, and of a supplement thereto, passed February 16th, A. D. 1799; and the said plaintiffs aver, that the said defendant did neglect to perform any of the duties required of him as constable under the said acts respecting said execution, although after he received the same sufficient goods and chattels of the said John M’Michael might have been found by due diligence, or the body of the said John might have been carried to jail by ordinary diligence for want of sufficient goods and chattels, or the said execution might have been duly returned within thirty days, with all proceedings had thereon, according to the requirements of said acts. By reason of the said defendant’s neglect thereof an action hath accrued to the plaintiffs against him for the said debt and costs, and interest, for which they pray judgment.
    The justice gave judgment in favor of the defendant, with costs of suit.
    *The plaintiffs appealed to the Court of Common [*207 Pleas in and for the county of Somerset, and the appeal was entered in the term of October, 1822. In the term of January, 1823, the said Court of Common Pleas reversed the judgment of the justice and gave judgment in favor of the plaintiffs for the sum of fifty-four dollars and ninety-three cents of debt, with four dollars sixty-six cents costs of suit, besides eleven dollars and forty-one cents, costs of increase.
    
      The following were the reasons relied upon for reversal of the judgment:
    Because the said judgment of the Court of Common Pleas is against law.
    Because the several acts of the legislature, to wit, an act entitled “ An act constituting courts for trial of small causes,” passed 15th March, 1798, and a supplement thereto, passed February 16th, A. D. 1799, upon which the statement of demand is founded, and the action brought and a recovery relied, were afterwards, and before the 7th day of August, 1822, when this suit was commenced, repealed, and not in force on the day last aforesaid, by reason whereof the judgment and proceedings were and are illegal and void.
    
      Green, for plaintiff.
    
      Hamilton, for defendants.
   The Chief Justice delivered the opinion of the court.

1. The first reason assigned for the reversal of the judgment in this case was adjudged insufficient for the like purpose in the case of Sandford, v. Colfax, 1 South. 120.

2. The second reason for reversal is that "prior to ’the commencement of the action in the court below, the act of March, 1798, whereby an action was given to the plaintiff to recover the debt and costs mentioned in an execution, from a constable for neglect of duty, was repealed. The point on which this question depends is whether prior to the repeal any right was by the statute vested in the plaintiff; for it is agreed on all hands and fully supported by the authorities in the books, that a repeal does not affect any vested right, even where the statute contains no saving clause. Now in the present case a neglect of duty within the statute having occurred, the constable immediately by force of. the statute became liable to the plaintiff for the *208] amount of debt and costs *mentioned in the execution. A right to recover such amount was when the neglect took place forthwith vested in the plaintiff. Th,e liability of the constable, and the right of the plaintiff to recover, did not by any means depend on the commencement of the action or on the rendition of the judgment. Both were fixed by the statute. Both existed prior to the commencement of any suit. The action was merely the mode whereby the existing liability and right were to be enforced. Hence the repeal of the statute could not legally destroy the right of the plaintiff in execution. The cases cited on the part of the plaintiff in certiorari do not reach the present question. There is a wide distinction between the matter of civil right and the cases of crime or of penalties which may be recovered by any person who will sue. In The United States v. Passmore, 4 Dall. 372, the statute of the United States which made certain acts an indictable offence having been repealed before the finding of the indictment, there existed no such offence, and consequently the acts could not as such be the subject of indictment or punishment. In popular actions given to common informers, no person is entitled to the penalty, no right is vested in any person, until at least an action is commenced. It is otherwise when the party aggrieved is entitled to recover. Yelv. 53; Andrews, 70; 1 D. and E. 705. In the case of The Commonwealth v. Duane, 1 Binney 608, Chief Justice Tilghman made these apposite remarks; “ If the same expressions, [alluding to an act of the legislature] had been used as applied to a civil action, I should have thought myself warranted in giving it a different construction, because then it would have operated in a retrospective manner so as to take away from a citizen a vested right. But there is a wide difference between a civil and a criminal action. In the latter the commonwealth only relinquishes its own right of inflicting punishment.” In the case of The State v. Shinn, 2 South. 553, and in Miller’s caso, 1 W. Bl. 451, which were applications for discharge as insolvent debtors, no right had vested in the applicants prior to the repeal of the acts, which took place while the proceedings were in progress. The applicants were not in these cases entitled to discharge until they had complied with the requisitions- of those acts which remained as yet undone at the time of their repeal.

3. The third reason is that the judgment against the constable was rendered for the interest as well as the debt and *209] costs *mentioned in the execution. The words of the statute are that “ the constable shall be liable to pay to the person in whose favor the execution issued the debt or damages and costs or any of them mentioned therein.” The sound construction of the act is that the constable shall be liable for whatever he might have lawfully raised under the execution : And although by the words of the execution and by the terms of the statute, Patt. 317, sec. 25, the execution commands the constable to levy the debt or damages and costs, yet he does actually and rightfully levy interest upon the debt. -Any other construction would operate as a bounty to the constable for delay and misconduct. The twenty-second section of the statute respecting sheriffs, Pev. Laws 241, directs that the sheriff, for neglect of duty on writs of execution, “ shall be amerced in the value of the debt or damages and costs,” yet the uniform course of'this court has been to amerce in the amount of the interest also. In the case of Hunt v. Boylan, 1 Halst. 211, on a similar reason assigned for reversal, Chief Justice Kirkpatrick said, I should be very much inclined to think that the debt included the interest.” In Jones v. King, the allowance of the interest against the constable was held to be an insufficient cause for reversal.

Let the judgment be affirmed.  