
    HOLT v. BINGHAM.
    Recall of execution after appeal from a justice — appellant to serve order of recall — mal practice.
    Where an appeal from a justice’s judgment is perfected after execution, it is the duty of the justice to recall the execution ; but it is not his duty to serve the order of recall; the party interested to effect the recall may serve the order himself, or get another to do it, but canuot make the justice liable if he refuse, or neglect to serve the order.
    Where the appellant in such case reluse to serve notice of recall, turn out property on execu- ■ tion which is sold, he cannot recover against the justice; the law in such case is clearly against him.
    Action upon the case against a justice of the peace for malfeasance in office, for not recalling an execution, after an appeal taken and perfected.
    It appeared in evidence, that after execution had issued upon a judgment against 'the plaintiff, rendered by the defendant as a justice of the peace, the plaintiff entered bail for an appeal, and the justice asked him to carry a notice of the recall of the execution to the constable, which he refused. He afterwards turned out some reeds worth about twenty dollars on the execution. These the constable sold to the plaintiff’s brother-in-law for one dollar, returned so much money made, and paid it over to the justice, who afterwards gave it to-his brother-in-law for the plaintiff. The brother-in-law offered the plaintiff his reeds, but he refused to take them, but afterwards bought them of him for nineteen dollars. He also offered the plaintiff the dollar from the justice, which he refused.
    
      Brazee, for the plaintiff,
    contended that it was the justice’s business to recall the execution.
    
      Vinton, contra.
   Wright, J.

to the jury. The law makes it the duty of the justice to recall the execution. He must issue the order of recall to the party interested, who may either serve it himself, or get some one else to serve it for him. It is not the duty of the justice, or the court, to serve its own process, or to do the duty of the constable, or of the parties. The justice hex-e has done nó wrong; the wrong, if any, results from the plaintiff’s own refusal to deliver the notice of recall to the constable. If it were otherwise, this plaintiff would come here with bad grace to ask for damages, under the circumstances of this case. He refused to give the notice; turned out the property himself; refused to take it back when it was tendered to him, and now wants you to make the justice pay for it. If you think a party has a x’ight to do wrong himself, and make another pay him damages for it, you would find for the plaintiff. In law, the case upon the facts in evidence, is clearly with the defendant.

Verdict for the defendant, and judgment.  