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Spafford against Griffen
Per Curiam.
The -proviso in the- 11th -section of the act, (1 N. R. L. 393.,) provides, “ that if the defendant shall, on the .‘hearing-bf-the- Cause, prove that he has a family in this state, for. which he provides, and is. not a.freehblder, then the justice shall, at the time of. issuing execution, endorsé such proof thereon,” which shall exempt the defendant from Imprisonment, upon his paying'by monthly instalments, &c, / It appears that the justice, -id this casé, improperly refused to endorsé that proof upon the execution; but his mistake, or misconduct, in not making thát endorsement, is no ground, for " reversing the judgment.
' Whether an action will lie against the justice, or the plaintiff below, for that omission, is-a question not now before us,. (Percival v. Jones, 2 Johns. Cas. 49.,) • - , Judgment aiFfrnied.