The statute requiring the service of a writ upon a sheriff or constable fourteen days before the sitting of the court to which it is returnable, is confined to actions brought on that statute, and does not extend to suits at common law.
It has been the practice in some parts of the state to give fourteen days notice in suits brought at the common law; and there have been decisions in the superior sanctioning such construction of the statute.(a) But this is an erroneous construction, which, as the question now comes before this Court for the first time, it is our duty to correct.
In this opinion the other Judges severally concurred.
Judgment reversed.
This practice and construction may be satisfactorily accounted for, by examining the history of the statute. At the revision in 1750, all the public acts then in force relating to the duty of sheriffs and constables were collected and embodied in one act. The 14th section was taken from part of an act passed in May 1744, which was as follows : “ Be it enacted, &c. that when any action or complaint is brought against any sheriff or constable, for neglect in his service of any writ of execution, or a false or undue return thereon, the writ or complaint brought against such officer, shall be served at least fourteen days before the sitting of the court wherein it is to be tried.” Colony Records, vol. 7. p. 245. While this act remained in its original form, there could not be a doubt whether its provisions extended to actions at common law as well as to complaints upon the statute. And it did in fact thus remain long enough to establish a practice under it, and to acquire a settled construction. Whether the committee of revision in digesting the materials of the present statute, or the legislature in giving it their sanction, intended to vary the act of 1744 in substance, or only to adapt its phraseology to its new connexions, must, at this day, rest upon conjecture. But if we suppose what is not improbable, that the latter is true, it is easy to account for the continuance of a practice and a course of decisions, which had been previously begun Still, however, the statute must be read as it now stands. Looking only at its present language, the construction of the text is so obviously just, that the existence of a different one seemed to require some explanation from historical facts. R.