
    KNIGHT v. VINCENT.
    Liability of a justice — issuing execution without' orders — demand—pleading— certainty — suing out process — justice not the agent of the plaintiff.
    A justice is not required to issue execution after the stay of execution has expired, without a demand of the person entitled to it.
    An oral demand of execution of a justice out of his office, though within his township, will not subject him to suit, if he neglect.
    
      An averment that a demand was made by the plaintiff or his attorney, on or about the 1st of October, in the township, does not attain to certainty to a: common intent, and is bad.
    Error to the Court of Common Pleas. Vincent is a justice of the peace. Knight had a judgment on his docket, upon which the• defendant gave bail for stay of execution. After the stay had expired, the plaintiff neglected to demand execution, the justice did-not issue, and the defendant became insolvent. Knight then sued Vincent for neglect of duty in not issuing execution, and Vincent had judgment. The two following points are now made for theaffirmance of the court, in order to reverse the judgment of the-Common Pleas:
    1. Is a justice required to issue execution after the stay has expired, without an order of the plaintiff or his agents ?
    2. Is an averment in the declaration that an execution was requested of the justice by the plaintiff or his agent, on or about th&. 1st of October in his township, sufficient ?
   WRIGHT, J.

The statute makes it the duty of the justice after-judgment to issue execution, unless otherwise directed, if the defendant shall fail to pay or give bond for a stay of execution: (29' O. h. 181.) The law does not require this of the justice after bail, is given, for stay of execution, nor can we suppose it intended by the legislature to make the judge the general agent of whatever parties have judgment before him. If the party entitled to would obtain process, he must sue for it, or demand it of the officer authorized to issue, and if he refuse, he may be liable.

749] *The averment of the demand has no certainty. Whether-the request was made by the plaintiff, or his agent, or by what agent, or when, or where, are all uncertain. The party making the averment is supposed to know the matters set forth and to aver-them with certainty to a common intent. He has not done so. A request of an execution of a justice, when not at his office, though-in the township, unless in writing, would not subject the justice to-suit for neglect.

Judgment affirmed.  