The opinion of the Court was delivered by
Sergeant, J.— This suit was brought against the administrator of a constable, to recover the amount of an execution placed in the hands of the constable in his lifetime, to which the plaintiff alleges he did not make a sufficient return on or before the return day, agreeably to the 12th section of the act of assembly of the 20th March, 1810. - The return actually made was “ no goods.” This *58return was not made at the instance-of the plaintiff for the purpose-of proceeding on a transcript, and it was therefore insufficient, because it said nothing as to the body of the defendant in the execution, which, by the command of the writ, the constable was directed to take into custody, and commit to gaol. But the defendant below contended, and the Court instructed the jury, that as the justice had received the constable’s return and entered it on his docket, this showed that the justice deemed the return sufficient, and therefore the plaintiff was not entitled to recover.
This question depends on the proper construction of the 12th section of the act of 20th March, 1810, which provides, that on the-delivery of an execution to any constable, an account shall be stated in the docket of the justice, and also on the back of the execution, of the debt, interest, and costs, from which the constable shall not be discharged but by producing to the justice, on or before, the return day of the execution, the receipt of the plaintiff, or such other return as may be sufficient in law; and in case of a false return, or in case he does not produce the plaintiff’s receipt on the return day, or make such other return as may be deemed sufficient by the justice, he shall issue a summons, &c.
It would, we think, be going too far to hold that the mere-acceptance of the constable’s return by the justice, and entry of it on his docket, should preclude the plaintiff from alleging the insufficiency of the return. These are but clerical acts, performed by the justice in the usual course of business, and not of themselves indicating any examination of the sufficiency of the return, or expressing an opinion upon it. The act of assembly, in the latter part of the clause, seems to contemplate a determination of the point by the justice — something showing that he had examined the return, and deemed it sufficient. As the act entrusts the justice with this judicial power, it presumes he will inquire into the matter and expressly determine it, and not leave his decision to be inferred from doubtful circumstances. Regularly, on a matter affecting the rights of a party he ought to be heard or have notice; or if these do not appear, there ought to be some judicial decision from which they may be inferred. We think there was error in the Court below on this point, and that the judgment, for this reason, ought to be reversed..
Judgment reversed.