
    *Sharpless and Phinney v. George Taylor.
    A justice of the peace is not bound to issue execution, without special order of the judgment creditor, until the time allowed for putting in bail for stay of execution has expired.
    He may, upon a special order, issue execution within that time; but when the time has expired, he must issue execution, although not specially directed.
    This was an action on the case, against the defendant as a justice of the peace.
    The declaration has two counts.
    First: That on the 28th of February, 1842, Sharpless and Phinney recovered a judgment against one Morris Wilcox, for $31.24J, before the defendant, Taylor, as a justice of the peace ; that said Wilcox, at the time said judgment was rendered, and up to the 7th of March, 1842, had sufficient goods and chattels, liable to execution, to satisfy said judgment; that said Taylor, as such justice, neglected and refused to issue an execution on said judgment, until the 8th day of March, 1842, when he did issue execution, and the same being levied on all the property the judgment debtor then had, produced but $10.74; and, therefore, the justice is liable for the balance of the judgment.
    Second : The second count is like the first, except it has this averment : “ The plaintiffs, by their agent, to wit, on the 28th day of February, 1842, at the township of Sharon, aforesaid, did order and direct the said George Taylor, so being such justice, as aforesaid, to proceed and collect the debt due from the said Morris Wilcox to the said plaintiffs, and for which the said judgment was rendered, as speedily as the law would permit,”
    There is a demurrer to both counts.
    Swayne and Bates, for plaintiff.
    The justice was bound to issue execution immediately. Swan’s Treatise, 127.
    ^Section 66, Swan’s Stat. 517, makes it his duty to issue execu- [244 tion, unless otherwise directed.
    Section 68, same page, if stay or appeal be taken, within the time allowed, and after execution issued, it shall be recalled.
    By section 1, Swan’s Stat. 530, ten days are allowed to enter in recognizance, for stay; but execution is to be issued as provided by 66th section.
    The only questions in this case are, whether the declaration is sufficient, in not averring that the justice did not issue an execution in a reasonable time, instead of showing that he did not issue for nine days, whereby the debt was lost?
    The plaintiffs contend that he was bound to issue immediately, or, at any rate, earlier than the 9th day; especially, as he had been charged, as alleged in the second count, to “ make the money as soon as the law would permit.”
    The defendant contends that he was not bound to issue until the ten days allowed for taking the stay had expired : or, at any rate, that he had a right to exercise a discretion on the subject, and that nine days might 'not have been too long to wait.
    P. B. Wilcox, for defendant.
    The attention of the court is first called to the act of 1831, sec. 63, 66, 68, Swan’s Stat. 516.
    Now, it is to be remarked, that this act of 1831 fixed no time at all, within which a recognizance for the stay of execution should be entered into. That was left to the discretion of the justice. This appears from the 68th section; it speaks of a recognizance put in, “ within the time allowed for entering the same.” Allowed by whom ? Where there is something to be allowed there must be an allower. The act of 1833, as will be seen hereafter, took away this discretion, and fixed the time at ten days.
    Then, it is to be remarked, that the 66th section directs the justice to issue execution on the “ refusal” or “ neglect” of the defendant to 245] put in a recognizance. The language is, “ if” he *shall “ refuse” or “ neglect.” If he shall “ neglect” or “ refuse,” when, or within what time ? The answer must be, within the time limited, or allowed, by the justice for entering into the recognizance. The justice gave the party such time as he thought reasonable for putting in his recognizance. If he “ refused” or “ neglected” to put in a recognizance, within that time, it was then the duty of the justice to issue execution.
    The justice, might, if he 'chose, issue execution before the time was .out for putting in a recognizance ; and the party might demand one to be issued, as appears from the latter part of the 66th section, 517, which provides that the party, at his option, might have a capias for the body. Tet the justice was not to be personally liable unless the defendant refused or neglected to put in the recognizance within the time allowed, and then the justice omitted to issue execution.
    The construction of the act of 1831, taken together, then, is this : “ If the defendant shall refuse or neglect to put in a recognizance within the time allowed by the justice, then the justice shall issue execution, or be liable to pay the debt.” And such is said to have been the practice in those days.
    Then came the amendatory act of 1833 (Swan’s Stat. 530,) which took away from justices of the peace the power of fixing the time for putting in recognizances, and fixed the time by law, to wit, ten days. The language is this (see. 114 :)
    “ That the recognizance to be entered into, as specified in the 63d section of the act to which this is an amendment, shall be entered into within ten days after the rendition of the judgment; provided, however, it shall be the duty of the justice to issue execution, as required by the 66th section of said act.”
    We suppose the intention of this act was simply to fix the ten days, and no longer leave it to the justice to fix the time for putting in the recognizance. The proviso, it is said, may bear another interpretation. It says the justice shall issue execution, as required by the 66th section. How does the 66th section require it to be issued? Why. upon the “ refusal;” or “ neglect” to put in a recognizance. The party has ten days to do this in ; and how can there be a “ neglect,” or “ refusal,” *until these ten days have run out ? The proviso [246 says the justice shall issue execution, as required in the 66th section. That section says it shall be issued on“ neglect” or “ refusal.” Now, until there has been really a “ neglect” or “ refusal,” how can the justice be sued ? When does the cause of action accrue against the justice ? Suppose in this very case, a good recognizance had been entered into on the last of the ten days, could the justice be made personally liable in such a case ? How can a cause of action arise against the justice till the ten days have expired — till the time has expired which the law gives the party for putting in a recognizance ? Suppose this suit had been brought five days after the judgment, and the next day afterwards a recognizance had been put in, what would have become of the suit ? Can a reasonable answer be given to this question ?
    The only effect, then, of the act of 1833, is to fix a certain time (ten days) for putting in a recognizance, instead of leaving it open to the discretion of the justice.
    On the whole, we suppose the true construction of the two statutes, taken together, is that which has been commonly put upon it by our justices of the peace, i. e., “ the party has ten days to put in his recognizance ; if he neglects or refuses to do it within the ten days, then the justice is bound to issue execution, at his peril.”
    The party may demand execution within the ten days ; but, no such demand being made, the justice can not be personally liable till the ten days expire.
    Swan’s Treatise on Justices of the Peace puts a different construction upon these two statutes, and requires execution to be issued immediately on the rendition of the judgment, but gives no reasons for it; nor does it compare one part of the statute with the rest.
    But suppose we are mistaken, how then does the case stand ?
    The position taken by the other side is, that the justice is bound, at his peril, to issue execution immediately after the rendition of tbe judgment. Now, how long a time has he to issue his execution in ? As he enters his judgment on his ^docket, must he go right on [24K and make out his execution ? — or may he wait an hour, or till the next morning? How long may he delay? 'The statute fixes no time, at all, and consequently, the law says he shall have a reasonable time. And this reasonable time is a question for the court, where the facts are known ; and where the facts are not known, then the jury are to fix it under the direction of the court. Is not ten days, then, a reasonable time for the justice to have ? It is a highly penal statute. The justice has the whole debt to pay. Or, is every case to be determined on its own circumstances ? May this case now be put to the jury, for them to say whether the execution was or was not issued in a reasonable time ? Take the case as the plaintiff makes it in his declaration. He says the defendant had plenty of goods on the day the judgment was rendered, and continued to have plenty till the 7th of March, and execution was issued on the 8th of March, eight days after the judgment. Now, was not this execution issued in a reasonable time ? On the plaintiff’s own showing, has the justice been guilty of such negligence as should throw upon him the whole debt ? Why did not the plaintiff order out execution, if he wanted one ? Where a justice acts in good faith, and is not hastened by the party, ought suoh a rigid rule be adopted against him ?
    The construction contended for by the other side, leaves every thing at loose ends. It fixes no certain time for the justice to issue execution. Every ease is to depend on its own circumstances. The justice may show any reasonable grounds why he did not sooner issue execution.
    Another thing shows that at least ten days is a reasonable time. The party has ten days to put in a recognizance. If a justice is sued any time within the ten days, and a recognizance is put in, what is to become of the suit?
    Wo then claim that, on the very case made by the plaintiff himself, in his declaration, the execution was, in fact, issued in a reasonable time.
    If an attorney at law has a claim to collect, and he causes execution 248] to be issued in eight days after the judgment, especially *if the defendant has plenty of property during the time, is not this reasonable diligence ? An attorney is only liable for gross negligence. 4 Pet. 172 ; 2 Sarkie’s Ev. 133.
    Ought not the declaration to aver a notice and demand before suit brought ?
    In England and in Pennsylvania, this is required by statute. In 4 Binney, 20, C. J. Tilghman says ; “ Justices of the peace are not often lawyers, and are frequently called on to act in the discharge of their duty without an opportunity of taking advice. It is but reasonable that they should have time to reflect, and to make amends to the person injured, in case they should inadvertently do wrong.”
    
      Our statute enacts, (Swan’s Stat. 398,) “ that justices of the peace shall he allowed to receive the following fees :
    “ Eor issuing execution, twenty-five cents.”
    Now, is a justice bound to issue an execution without a tender of his legal fees ; and ought not such tender to be averred in the declaration ?
    In 10 Serg. and Rawle, 373, a justice of the peace was indicted for refusing a copy of his proceedings, and the court say, page 376 . “No man could legally demand this copy without tender of the fee. The fee hill allows the justice for the copy of a judgment, 25 cents. He has a right to his fee, instanter, before he delivers his copy. He is not responsible civiliter, (and that fact should be set out), till his fee is tendered.”
    The statute, under which this decision was made, is in these words : “ It shall be the duty of the justice, on demand, made either by plaintiff or defendant, to make out a copy of his proceedings at large, and deliver the said copy, certified by him, to the party requiring the samo, and if, on such demand, he shall refuse so to do, it shall be a misdemeanor in office.”
    The second count seems to be substantially like tho first. The language seems to import, that the direction to proceed, etc., was given before the judgment. If it was an order for execution, why not say so at once? The inference is, that the direction was given (if any) when the claim was first put *into the justice’s hand; and [249 the judgment was afterwards confessed on the same day, and no specific direction for execution. Such ambiguity, or doubt, is to be taken against him who uses it. If an execution was really demanded, it was very easy to say so ; if not, what could be expected but such indefinite language ?
   Read, Judge.

The determination of this question depends upon the time within which the statute makes it the duty of a justice of the peace to issue execution.

The 63d section of the act of 1831, relating to justices of the peace, provides for stay of execution, upon condition of entering into a recognizance, etc.

The 66 th section provides that if the person against whom judgment was rendered shall refuse or neglect to enter into such recognizance, it shall be the duty of the justice, unless otherwise directed, to issue execution.

The 68th section provides, that if execution issue before entering into a recognizance for stay, and afterwards a recognizance be entered into for stay within the time allowed for entering the same, execution shall be recalled.

. Under this act no time was fixed within which a"recognizance for stay should be entered.

The first section of the act of 1833, amendatory of the act above mentioned, provides that a recognizance for stay of execution shall be entered into within ten days faom the day of judgment.

The duty of the justice, by the 66th section, to issue execution, arises upon the neglect or refusal of the person against whom judgment is rendered, to enter into a recognizance for stay of execution. The first .section of the act of 1833 gives to the person against whom judgment was rendered, ten days to put in a recognizance for the stay. How, then, can a person be said to neglect or refuse to enter into a recognizance for the stay, before the time expires, given by law, to enter into such recognizance ? If, then, it be no refusal or neglect of 250] the judgment debtor, not to enter into a recognizance until *the ten days given him by law have expired, it follows, of course, that ’until the lapse of that time the contingency has not happened which makes it the duty of the justice to issue execution. This conclusion is irresistible.

Upon a construction of the whole statute, it resolves itself into this : A justice of the peace is not guilty of neglect of duty if he do not issue execution until ten days after judgment. He may issue execution within ten days; he should do so if the judgment creditor specially direct it; he must do so after the ten days have expired, unless directed by the judgment creditor, or his agent, not to do so.

This view of the statute is in conformity with the general construction placed upon it in practice, and such as fairness, justice, and the provisions of the statute would seem to require.

In this case the execution was issued within ten days, and there was no special order to issue sooner.

It is the opinion of a majority of the court that the magistrate performed all that was required of him by law.

Demurrer sustained.  