HUKILL v. BAILEY, 1 Del. 448 (1834)

WILLIAM HUKILL, deft. b. appellant, vs. ROBERT BAILEY, plff. b. appellate.

Superior Court of Delaware.
Fall Sessions, 1834.

APPEAL from the judgment of John Conwell, Esq. a justice of the peace.

This was an action against a constable for neglecting to return an execution at the suit of Bailey against James Spencer, delivered to him to be executed. The plaintiff declared in debt on the statute and the deft, demurred generally and specially. Dig. 341 sec. 18.

The court sustained the demurrer on the authority of Humphries
vs. Webster, ante 34.

The remedy is by action on the case founded on the neglect of duty and consequent statutory liability. Perhaps debt on the statute would lie. Chitty says whenever a statute imposes a penalty, debt will lie Quere. — Is not this a penalty?

Judgment for demurrant.

Booth, for plff.

Read, Jr. for deft.

Note. This was before the supplement (8 vol. 265,) which gives jurisdiction to the justices of the peace.