The state, on the relation of, Thompson, brought an action of debt against Weaver and his Sureties, on their bond conditioned for the performance, by Weaver, of his duties as a justice of the peace. It appears from the *564declaration, that Weaver had been elected a justice of the for five years from the first of November, 1836, and had given bond according to law; that on the 10th of Janua-ry^ 1840, one of the sureties filed an application, under the statute, to be discharged from the bond; that on the same day, in consequence of such application, Weaver went and waived the issuing of a summons against him, and executed and filed in the clerk’s office an additional bond (the one now sued on), which was approved of by the clerk. The assignment of the breach is as follows: That on the 2lst of June, 1841, Thompson recovered a judgment before Weaver for 51 dollars and 25 cents against one Elder; that Weaver failed to issue execution on the judgment during his term of office, though he might, could, and should have issued it; that no execution issued on the judgment until the 6th of December, 1841, when one was issued by the successor of Weaver, and when Elder had no property subject to execution; and that the judgment had not been paid.
The defendants pleaded several pleas in bar, some of which were demurred to, and on the others issues in fact were joined.
The demurrers were sustained. The issues in fact were submitted to the Court, and judgment rendered for the plaintiff.
Of the pleas demurred to, there is but one which the defendants endeavour to sustain. That plea is, that the sureties in the first bond had not, when the second bond now sued on was executed, removed from the state, or become insolvent, nor had Weaver been requested, by any competent authority, to give a further bond. The defendants insist that this plea is good, on the ground that it was material to the maintaining of the suit, that Weaver should have been required by the proper authority to give the second bond. But we do not think that such requirement was necessary. On the surety’s application to be discharged as alleged in-the declaration, the statute authorized a summons to issue requiring the justice to execute a further bond. R. S. 1838, p. 424. The justice in this case, on the application being made, went to the clerk’s office, and, waiving the issuing of a summons, gave the additional bond, and thus did what the summons, had it issued, *565would have required him to do. The want of a summons, after such waiver, can be no objection to the bond.
The defendants object to the assignment of the breach in the declaration, because there is no averment, that the judgment had not been replevied.
The statute of 1838, which governs this case, enacts, that on all judgments of justices, &c., upon the judgment-debtor’s entering good and sufficient security, on the docket where the judgment is entered, for the amount of such judgment, interest, and costs, there shall be a stay of execution, if the sum is over forty dollars, for one hundred and fifty days; and if such bail be not entered, nor the judgment paid, the justice, unless otherwise directed by the judgment-creditor, shall issue one execution. R. S. 1838, pp. 373, 374. According to this statute, it was the justice’s duty to issue an execution on the judgment, unless the judgment had been replevied or paid, or the judgment-creditor had otherwise ordered; and these ex: ceptions are contained in the enacting clause of the statute.
The law is well settled that, in an action for a penalty under a statute, if there be any exception in the clause which gives the penalty, exempting certain cases from its operation, the declaration must show that the particular case is not within the exception. But where it comes by way of proviso in a subsequent section of the act, or in a subsequent act, it is matter of defence, and need not be noticed in the declaration. Thibault v. Gibson, 12 Mees. & Welsb. 88. And the same rule prevails as to indictments. Colson v. The State, 7 Blackf. 590. — The State v. Brown (ante, 69). That this rule is not limited to suits on penal statutes, or to indictments, is shown by the case of Vavasour v. Ormrod, 6 Barn. & Cress. 430. That was an action for rent founded on a lease. The reservation of rent contained an exception by reference to subsequent matter in the instrument, but the declaration omitted the exception, and was therefore held to be bad. Lord Tenterden there said, “If an act of parliament, or a private instrument, contain in it, first, a general clause, and afterwards a separate and distinct clause, which has the effect of taking out of the general clause something which would otherwise be included in it, a party relying upon the general clause in pleading may set out that clause only, without no*566ticing the separate and distinct clause which operates as an . exception. But if the exception itself be incorporated in the general clause, then the party relying upon it must, in pleading, state it with the exception, and if he state it as contain- " ing an absolute, unconditional stipulation, without noticing the exception, it will be a variance.”
L. Barbour, for the plaintiffs. S. Tandes, for the defendant.These authorities show that, in a case like that now before us, where the suit is to recover damages for a justice’s nonperformance of his duty, and there are exceptions contáined in the enacting clause of the statute which prescribes the duty, the declaration must negative the exceptions.
The declaration in question states the non-payment of the judgment; and we are to examine whether the other exceptions are sufficiently negatived. The only statement on the subject is, that the justice might, could, and should ham issued an execution. The plaintiff contends that this statement is sufficient. To sustain this position, he relies on the case of The State v. Brown, 5 Blackf. 494. In that case, the objection made to the declaration was, that there was no averment that the judgment had not been replevied or paid. The Court, however, considering the facts set out in the declaration to be equivalent to such an averment, overruled the objection, which arose on a demurrer to a plea. In the present case, the declaration does not expressly aver, nor does it state facts ■amounting to an averment, that the judgment had not been replevied, and that the judgment-creditor had not directed that an execution should not issue. The statement that the justice might, could, and should have issued an execution, is only a conclusion of law, arising from certain facts which should have been alleged by the plaintiff.
It is proper to observe that it appears from the declaration, that if the judgment was replevied, the justice could not have issued an execution, as the stay extended beyond his term of office.
We are of opinion, for these reasons, that the objection made by the defendants to the declaration is fatal.
Per Curiam.The judgment is reversed. Cause remanded with leave to amend the declaration.