Commonwealth v. Warfel

Opinion by Mb. Chirr Justice Stekrett, This action of assumpsit, founded on the official bond of the defendant, J. S. Warfel, constable of Leacock township, was brought against him and his bail, to recover damages alleged to [452] have been sustained by the use plaintiff in consequence of alleged illegal acts done by said Warfel while claiming to act as such constable under and by virtue of an execution issued by Alderman Halbach, etc. All the material facts of the case, including the issue presented by the pleadings, the testimony introduced by the plaintiff, etc., are so fully presented by the learned president of the common pleas, in his opinion refusing to take off the judgment of nonsuit, that special reference to them is unnecessary. The assigned breaches of said bond are substantially as follows: that upon an execution against the use plaintiff, the constable entered said plaintiff’s premises, levied upon and afterwards sold certain personal property; that “ said execution, levy and sale were unlawful and illegal, said execution having been issued by Jacob Halbach, an alderman of Lancaster city, on December 9, 1890, upon a void judgment entered before said alderman on November 17,1890,” etc.; that on December 29, 1890, a writ of certiorari was issued for the removal of all proceedings on said judgment and execution into the common pleas, and notice thereof was given to said alderman and constable; but, notwithstanding that, the latter proceeded and sold the property on which he had previously levied; that the return day of said execution was December 29, 1890, and no return thereof was made until the following day; and that said constable altered the return day of the summons in the original case from the 15th to the 17th day of November, 1890, on which last mentioned day the judgment aforesaid was entered, etc. The only testimony that could in any event be properly regarded as proof of damage, to the use plaintiff, is that relating to the levy and sale of his personal property on the execution referred to. There is no competent evidence to warrant the jury in finding that he was injured bj*- any other act of the defendant constable. The alleged alteration of the summons was a matter between the alderman and his officer. The former recognized the 17th of November as the proper return day, by proceeding to hearing and judgment at that time. The summons having been served on the present use plaintiff, there was nothing to prevent him from then appearing and making any objection, or interposing any defence he may have had. But he chose to disregard the summons, and judgment went against [453] him by default. The presumption is that he had no defence, either technical or meritorious, and therefore he stood aloof. As to the certiorari, it was the duty of the plaintiff therein to appear before the alderman, satisfy him that he was entitled to stay of execution and demand that the writ be recalled. If he had done so, non constat that the execution would not have been recalled. It was not questioned that, at the time of the levy and sale, the constable had in his hands an execution, issued by competent authority, commanding him to do just what was done. Indeed, the plaintiff called the alderman, and proved by him that it was issued on a judgment entered by himself against the beneficial plaintiff, and was placed in the hands of Warfel to be executed; and that, on the day after the sale, it was returned by him, “ money made,” etc. In short, it was conclusively shown by the plaintiff that the levy and sale, of which he complained, were made under and by virtue of the execution so is sued by one authorized to issue such writs, and that it remained in the constable’s hands until it was fully executed. In view of these facts, it was claimed by defendants that the constable, instead of being sued on the very day of the sale, was entitled to the protection accorded him by the act of March 21, 1772, sect. 6; 1 Purd. 322, pl. 38. That act declares, “ No action shall be brought against any constable or officer, or any person or persons acting by his or their order and in his aid, for anything done in obedience to any warrant under the hand and seal of any justice of the peace, until demand hath been made, or left at the usual place of his abode .... of the perusal and copy of such warrant, duly certified under his hand, and the same hath been neglected or refused for the space of six days after such demand,” etc. In all cases within the purview of the act, the demand referred to must be made, and neglected or refused for six days thereafter. These conditions are absolute and imperative. They are precedent to the right of action, and necessarily essential thereto. Aside from everything else that may be supposed to be in this case, the neglect of the plaintiff to make the demand required by the act, was necessarily fatal to his right to a verdict, and the court was clearly right in refusing to take off the judgment of nonsuit. This is conclusively shown in the [454] clear and exhaustive opinion of the learned president of the court, in which the authorities are cited and sufficiently commented on. Further elaboration would be useless. Judgment affirmed.