
    [*] SAYRES against WARD and WARD.
    
      ON CERTIORARI.
    The action below was brought by the Wards against Sayres, as a constable in the township of Newark, in the county of Essex. The declaration contained three counts. The first set out, that the plaintiff, on the 8th day of June, 1811, obtained a judgment before David D. Crane, Esq., against one Edward Blackford, for debt and costs $50.20; that afterwards, on the same 8th June, he obtained an execution on that judgment, and put it into the hands of the defendant, Sayres, he being constable, to collect; and that he neglected to perform the duty prescribed by the 29th section of the justice’s act, by neglecting to levy, and make the debt and costs of the goods and chattels of the said Edward Blackford; and averred that sufficient goods and chattels of the said Edward Blackford were, after the delivery of the said execution to the defendant, to be found and had in the said county of Essex, and might have been with reasonable and due diligence, levied on by the said ' defendant, and the debt and costs made; whereby an action hath accrued to the plaintiffs, &c., to recover the said $50.20, &c.
    The second count the same as the first, except that instead of charging the defendant with neglecting to levy on the goods and chattels, &c., it charges him with taking the body of the said Edward Blackford into his custody, and then voluntarily suffering him to go at large and escape, against the will of the plaintiffs, whereby an action accrued, &c., for other $50.20.
    A third count was for not returning an execution issued by the same justice, in favor of the same plaintiffs, against one Calvin Woodruff, for other $18.74. On this declaration, a general verdict and judgment was obtained for $69.31, with costs. To reverse this judgment, this oertiorari was brought. The insufficiency of the declaration was assigned for error. Also that the jury, in rendering their verdict, did [*] not designate on which count or counts they found their verdict. Other errors were assigned, but not supported in point of fact by the record.
    The real points in controversy below were,
    1st. The constable set up, by way of defense, that the goods and chattels of Blackford were already levied on by the sheriff, and in his custody, under an execution out of the Common Pleas for §9000. In answer to which the plaintiff below contended that the judgment in the Common Pleas was collusive and fraudulent, being confessed in favor of the plaintiff there, William Murray, who was the brother-in-law of Blackford; and also, that the possession of the sheriff' was collusive, he having never removed the goods, but left them in the hands of Murray, the plaintiff in the Common Pleas, who resided in the same house with his brother-in-law Blackford.
    2d. It was contended by the constable that he was bound by the execution, first to look after the goods and chattels of a defendant, before he was authorized to take the defendant into custody; and that although Blackford might have been in his view, yet he could not legally take him into custody until he ascertained whether he had goods and chattels sufficient to satisfy the execution. But these points were not so fully put on the record as to enable the court to give an opinion on them.
   Peítsí'Sígtos', J.

The action below was brought on three different charges set forth in the state of demand, for neglect of duty as constable, in executing three executions delivered to the defendant below, by the plaintiffs, in all, $119.15. This, prima fade, ousts the justice of jurisdiction; but as two of the charges were for neglect of duty in executing executions in favor of the same persons, against the same [735] defendant, and for the same sums, and the same dates, it is probable that there was really but one execution, on which both these charges were [*] founded, and but one recompense was sought. I believe that in actions on the case sounding in damages, where counts have been added to meet the evidence, and where one injury only was sought to be redressed, this court has not considered the justice ousted of his jurisdiction of the cause, although the sums added together amounted to more than $100. But I- am not satisfied that this would be correct in cases of debt, where specific sums are declared on, and must be recovered, or nothing. 2 JBlao. Rep. 1050. But this is not the only objection: a general vei'dict has been found for a less sum than has been declared on, and nothing said as to the residue, nor the particular charges designated on which the verdict is found. The charges are all distinct in their nature, one for neglecting to levy on goods and chattels, another for an escape, and a third for not returning the execution in thirty days. In these cases- the particular charges ought to be found, that the defendant below may plead this recovery in bar to another action, and know for which he is condemned. Oro. Jac. 653 ; 1 Lilly’s Entries 221¡,. There is also an error in the declaration. The charges are all for a neglect of duty prescribed by the 29th section of the act constituting courts for the trial of small causes. Whereas, one is for neglecting a duty prescribed by the 26th, another the 27th sections of that act; and a third by a supplement to the act; the 29th section only gives the action, but prescribes no duty. On the whole, I am of opinion that this judgment cannot be supported, but ought to be reversed.

Kikkpatbick, C. J.

Concurred in the foregoing opinion, and added that another error appeared on the record. At the trial below, the jury, after they had retired from the bar, returned again into court, and stated to the justice a question of law involved in the case, and prayed to be informed therein. The justice declined the solution of the question, and told them that the question was for them to deeide. How [*] the rule of law is, ad questionem legis respondent judiees. The justice could not lawfully refuse to declare the law.

Kinney, for plaintiff.

Rosseel., J. — Was in favor of reversal.

Judgment reversed.  