
    Smith vs. Wells.
    The act of 1803, ch. 18, seo. 1, does not authorize a judgment on motion against a constable, for the non-return of process issued by a'justice of the peace.
    The act of 1S03, ch. 18, sec. 3, does not authorize a judgment on motion to be had against a constable for an escape upon a process issued by a justice of the peace.
    When an act of the legislature does not take away the common law remedy, no strained construction will be given to make it cover-a case not expressly within its purview.
    This was a motion against a constable. The proof was, that an execution against the body of Coalter had issued from before a justice of the peace, and had been placed in the hands of Wells, a constable. Coalter was arrested, but he forcibly made his escape. Another ca. sa. was then issued, and was put in the hands of Wells. This was never returned. On, these facts the court refused to give judgment. Appeal in the nature of a writ of error to this court.
    P. Parsons, for plaintiff in error.
    
      R. J. M’Kinney, for defendant in error.
   Peck, J.

delivered the opinion of the court.

The act of 1803, ch. 18, sec. 1, authorizing judgment on motion for failing to return process, provides only for cases where the process has issued from the county or circuit court. The present case, not being covered by the act for the non-return of process, the motion was properly overruled. More difficulty arises under the third section of the act providing for a summary judgment in cases where an escape has been permitted. Though the language of the section seems broad enough to cover the case, yet it is obvious upon inspection of the whole act, that this section must be taken in pari materia with the first. It has been uniformly held, that acts authorizing judgments on motion, must be taken with strictness. If, therefore, the act does not come up fully to the case made out, the motion must be disallowed. None of these acts take away the common law remedy; therefore, no strained construction will be given to make them reach cases not within the obvious purview.

Judgment affirmed.  