
    [Chambersburg,
    October, 31, 1825.]
    SMITH and another against SCHELL.
    IN ERROR.
    A justice issued an execution, directed to the constable of the town of JB., distant tour miles from the township of ¿V., where the defendant resided, and there being another township of JB., between that and the town of JB.: held, that though there was an acting constable in the township of JV., and also of JB., yet, the execution was not for that reason void.
    The provisions of the act of assembly, on this subject, are only directory, and the justice is to judge who is the constable most convenient to the defendant.
    In the Court of Common Pleas of Bedford county, to which the writ of error in this case issued, this was an action of trespass, vi et armis, &c. brought by Jacob Schell, against Matthias Smith, and William Gibson, for taking and carrying away eleven barrels of flour, the property of the plaiutiff. On the trial in the court below, the plaintiff gave evidence that he had purchased the flour of a certain Henry Frazer. The defendant, Gibson, was constable of the town of Bedford, and the defence made by him, and Smith, the other defendant, was, that Smith had obtained a judgment against the said Frazer, before a justice of the peace of Bed-ford county, who issued an execution thereon, directed to the constable of Bedford town, by virtue of which, Gibson levied on the eleven barrels of flour, before mentioned, as the property of the said Frazer. Whether Schell had made a fair purchase of the flour, before the lien of Smith’s execution had attached, and whether the purchase, though for full value, had been made with a view of defeating Smith’s execution, were points submitted to the jury, by the President, who laid down the law to the jury. But the defendants complained, that the jury were misdirected, with respect to the validity of Smith’s execution. Frazer, the defendant in the execution, lived in Napier township, as did also the justice who issued it. The township of Bedford lays between Napier township, and the town of Bedford. There were acting constables both in Napier and Bedford townships; yet the justice, without any known reason; directed the execution to the constable of the town of Bedfordf. The objection was, that Gibson ■ was neither the constable of the township in which Frazer resided, nor the next constable most convenient to the said Frazer. The President charged the jury, that, “ if they should be of opiopinion, from the facts in evidenc'e, that, at the time of issuing the execution, there was an acting constable of Napier township fit and proper to serve that execution, and who might have been employed, if Smith had thought proper to apply to him for the - purpose; and that there was also an acting constable of Bedford township, who was next most convenient to the defendant, Frazer; and without any legal cause, or reason, Smith had his execution directed to the constable of the town of Bedford, who resided about fqur miles more distant from the defendant, Frazer, than even the constable of Bedford township, then, in point of law, no lien whatever attached on any property of Frazer, situate in Napier township, on an execution so directed, and served by a constable of the town of Bedford.”
    
    
      Thompson, for the plaintiff in error,
    now contended, that the warrant was not void, and the constable, if not bound, was at least authorized to obey it. The act of assembly of the 20th of March, 1810, sect. 11, it is true, requires the justice to issue the execution to the constable of the ward, district, or township, where the defendant resides, or the next constable most convenient to the defendant. This act, however, is only directory to the justice, and does not make a warrant void, which is differently directed. It is the practice, to issue a warrant directed to a constable not the nearest to the defendant, and this practice is very extensive. Clark v. Worley, 1 Serg. & Rawle, 351.
    
      Russell, contra.
    The only point is, whether this was a void execution. It was void, because not directed to the constable of' the township where the defendant resided, or the next constable most convenient to the defendant. By doing otherwise, the mileage of the constable, and, consequently, the costs, are increased. In the case of Clark v. Worley, the warrant was directed to the constable of the township next to that in which the defendant resided. In the present case, the justice passed over the township intervening between that in which the defendant resided, and the town of Bedford, to the constable of which, the warrant was directed.
    
      Reply.
    
    The costs are not increased. Mileage is charged only from the house of the justice, to the house of the defendant.
   The opinion of the court was delivered by

Tirghman, C. J.

By the act of the 20th of March, 1810, section 11, (5 Sm. L. 161,) the justice is required to issue the execution, directed to “the constable of the ward, district, or township, where the defendant resides, or the next constable most convenient to the defendant.” The next constable most convenient to the defendant, are rather vague expressions. Who is to judge of the next constable most convenient to the defendant, unless that be left to the opinion of the justice? It would be extremely hard to throw the decision of this question on a constable, to whom an execution is directed by a justice of competent jurisdiction, at the peril of being responsible in an action of trespass. It would seem, therefore, that the act of assembly is to be considered as only directory in this respect; and not so positive and peremptory as to render the execution void, though directed to a constable who, in the opinion of the jury, was not the next most convenient to the defendant. There was a case, something like the present, upon the English statute of Hue and Cry. By the statute 13 Ed. 1, a party robbed might, in case the hundred did not apprehend the felon within forty days, recover the amount of his loss from them. By the statute of the 27 Eliz. c. 13, s. 11, the party robbed must within twenty days next before the commencement of his action, be examined upon oath before some justice of the peace, of the county wherein the robbery was committed, inhabiting within the hundred where the robbery was committed, or near the same, whether he knows the robbers or any of them. It was held, that where the affidavit was taken before a justice who lived twenty miles from the place where the robbery was committed, and many justices lived nearer, yet it was sufficient, as the act was only directory in this respect. Peake’s Evid. (by Norris,) 461. Bull. Ni. Pri. 186. I do not say how the law would have been, if the act of assembly had ordered the magistrate to issue his process to the constable residing next or nearest to the defendant. That might have made a difference; because both justice and constable might know who was the next or nearest to the defendant. But the next most convenient constable, is a different thing. Convenience is a matter which requires the exercise of judgment, and there might be many reasons influencing the opinion of the justice on that point, of which the constable could know nothing. For'these reasons I am of opinion that there was error in the charge of the court, for which the judgment should be reversed, and a venire facias de novo awarded.

Judgment reversed, and a venire facias de novo awarded.  