’delivered the opinon of the Court at the ensuing term in Kennebec.•
The plea, not averring the execution of the bond before the service by the defendant of the processes set forth in the declaration, is clearly bad, affording to the defendant no justification or excuse. But his counsel insists, that the declaration also is substantially defective; if so, notwithstanding the badness of his plea, the defendant is entitled to judgment. The’ plaintiff sues for a penalty given by statute; he is bound, therefore, to present a case strictly within it, and to omit nothing which the law deems to be essential in the form of declaring. The first objection taken is, that the neglect or default charged, is not averred to be against the form of the statute, in such case made and provided. The use of this phrase has in so many cases been held to be matter of substance, *79that it seems to be too late to question their authority. If it were res integra, it might be at least questionable whether much of the extreme nicety in relation to this averment, ought not rather to be regarded as form than substance. In one of the cases, cited from Gal-lison, it would seem that the omission of the usual technical language,. cannot be supplied by other words of equivalent meaning, however precise and unequivocal. But the possibility of this is admitted by Justice JacJcson, in delivering the opinion of the court in the Commonwealth v. Stockbridge, 11. Mass. 279, and it is urged that if this intimation is well founded, the omission is sufficiently supplied in the case before us. We are not, 'however, to be understood as admitting the truth of this position; but, upon this very nice and shadowy point, we do not feel ourselves constrained at this time to give an opinion ; as we are satisfied the declaration is defective upon another ground, of a more substantial character.1
By the revised laws, ch. 92. sec. 9, upon which this action is founded, any constable is authorized and empowered to serve upon any person or persons, in the town or plantation to which he may belong, any writ, summons, or execution in any personal action, where the damage sued for, or recovered, shall not exeeed one hundred dollars, provided before he serve the same, he give bond to the treasurer of the town, in the sum of two hundred dollars, with two sureties, sufficient in the opinion of the selectmen and town clerk, for the faithful performance of his duties and trust, as to all processes by him served or executed. The processes last mentioned must be limited to such as are lawfully in his hands, and within his jurisdiction. The liabilities of his sureties could not, upon any sound construction, be extended farther; as they must be deemed to undertake only for the faithful performance of his duty, in relation to such processes as he might serve as constable. Were it otherwise, he might be held liable, in one process exceeding his jurisdiction, to an amount, which would absorb tire whole penalty, leaving unprotected processes within his jurisdiction; although it was the faithful performance of his duty in regard to these, which the bond was manifestly intended to secure. It ought, therefore, clearly to appear, that the processes, set forth in the declaration, *80were of this description. Tire process stated in the first count, is a writ of execution, in favor of one Ira Gibbs, against one Henry Knox Murphy, which said writ was issued by Joseph Sprague, Esqr. a Justice of the Peace for said county. The process in die second count, is averred to be a writ of execution, which was issued by the same justice, in favor of one John Barter, against one William Marshall. The amount of neither is stated; nor is either averred to have issued upon a judgment. It is insisted, however, that all processes, issuing from a justice, must necessarily be within a constable’s jurisdiction ; and diese appearing to be of that description, the plaintiff was not bound to aver that they were such as a constable might serve. If this were true, it might be replied, that in a penal action, an essential fact- ought to be directly averred, in^ stead of being left to be gathered by argument and inference. But it is not true; for by the revised laws, eh. 77, providing a speedy method of recovering debts, a justice of the peace may take a recognizance, and issue an execution thereon, to an unlimited amount.
There is nothing, then, in the declaration, from which we can infer that the processes therein described, were within the jurisdiction of a constable. They might have issued upon recognizances, and each have exceeded the sum of one hundred dollars.
It has been contended by the counsel for the plaintiff, that this objection is not open to the defendant, inasmuch as it would be taking advantage of his own wrong; being founded upon the suggestion, that these processes, which he is alleged to have served, might not have been within the limits of his authority. But he has a right to insist, when the validity of the declaration is drawn in question by demurrer, that it should contain every averment material to sustain the action; and that, unless this distinctly appear, he cannot be charged. The defendant relies that he is not legally called upon to answer; not upon the ground that he has done no wrong on his part, but because the plaintiff has not shewn with sufficient certainty, which he was bound to do, that the penalty attached.
The opinion of the Court is, that the declaration is bad ; and that, there must therefore be judgment for the defendant.