Kyle v. Evans

ORMOND, J. The amount in controversy, as we'll as the principle which must govern it, and'the frequency of the occurrence of the question, gives to this case considerable importance. ■ 1 1 ' Judicial power must be exercised by the person in'whom the-trust is reposed, but acts merely ministerial in- their character, may“be.performed by deputy. It becomes-necessary;-' therefore, to consider in what capacity a justice of-the-peace acts in issuing an execution. The issuance of an execution upon a judgment, is an act purely ministerial in its character, it involves no process of reasoning or deduction from other facts, but is merely the-legal consequence of the judgment previously'rendered; and therefore this duty is performed by the clerk, when -there is one attached to the Court. A justice of the - peace has no cleric, but this does not alter the character of the acti he is both-judge and clerk of his own Court. Bissell v. Edwards, 5 Day’s Rep. 368; Huff v. Campbell, 1 Stewart, 543; ?' The act of the-justice in the issuance of an execution, being an aet purely ministerial in its. character, maybe delegated to another, and w-ill be the act of the justice. Here it is show-n, that, Johnson, who issued the executions, was-authorised-by-the jus--tice todo so: it.was'therefore.the.act.of the-justice.\ In.the483 cases cited from 2 Ala. Reports, 68 and 74, we held that an execution from a Court, of record, was regular, though issued by one who was not a deputy of the clerk, if authorised by him, and if issued by one not authorised, the adoption of it afterwards by him, would make it regular. As there is no difference in the character of the act when performed by the clerk of .a Court of Record, or by a justice of the peace, the authority of these cases seem full to the point. It is urged, that an execution must issue under the seal of the justice, and that the authority to affix a seal, must be'by deed. The law referred to is, “ that all warrants or other precepts issued by a justice of the peace, shall be under the hand and seal of such justice.” Aik. Dig. 292. It has never been held that this law applied to executions, but in those cases to w.hich it does apply, it has been considered so far as relates to the seal, directory merely, and that the want of a seal cannot -be..taken advantage of. Scott v. Rushman, 1 Cowen, 212. The case cited by the counsel for the plaintiff in error, from 1 Wendell, 213, and 1 Peters, 340, merely establish the well known proposition, that where the Court has no jurisdiction to render the judgment, that its process will not protect the officer. In Toof v. Bentley & Harris, 5 Wendell, 276, the execution was made returnable in sixty, instead of ninety days, as .the law required ; and the Court held, that as there was no authority to issue such an execution, it would afford no protection to the officer. It _ is obvious that the case cited has no application to this. The case most relied on as an authority , for the plaintiff in error is, Pence v. Hubbard, 10 Johns. 416. The facts were, that a constable, in an action, of trespass against him, justified under two executions issued by a justice of the peace, the dates of which had been altered by the constable after they, came to his hands; the justice testifying that he might have, authorized the constable to do it, as he frequently gave constables permission to alter the dates of executions. The Court held, that if the alteration in the process in that particular case, had been made by the authority of the justice, it would not be thereby, invalidated, but that a general authority to a constable to fill up or alter process, would be void, and highly improper. This case.then, shows that a justice of the peace may authorise an [484] other to issue executions in his name;'.that he may direct or authorise a constable to do so in a particular case, but that & general authority to a constable-to fill up or alter executions, would be improper. The ■ ground of this decision appears to bé the impolicy of permitting the constable, the executive officer of the justice, to alter executions issued by the justice, by virtue of a general power. That such a power in the constable would be liable to great abuse, may well be conceived, but we cannot perceive that the admission of this, at all militates against the proposition here maintained, that the justice may delegate the power of issuing executions to one against whom no such objection exists; and that if such authority is proved, an execution so issued, will be as valid as if issued by the justice personally. We are of opinion that the. Court did not err in refusing the charge asked for, and its judgment is therefore affirmed.