#### STEVENS v. BREATHEVEN.

Mouey paid to justice — officially received — when agent of the party, not of the law — sci. fa. —practice-verdict—jury fee — neglect to pay.

Money paid to a justice of the peace, on a demand in his hand, before it is due, is not received by him in his official capacity, and his security in the official bond is not liable for it.

In a suit to subject the surety of a justice for the default of the justice, the surety may look back of the judgment against the justice to ascertain his liability'-, but not as to the amount recovered of the justice.

Where a suitor gets a verdict he is bound to pay the jury fee, and if he neglect, the verdict will not be entered, or if improvidently entered, will be vacated; but the court cannot enter a general judgment against the party for such neglect, as if in default.

Error, to the Common Pleas. The case below was a scire facias by Breatheven, as treasurer, against Stevens, which recited that Breatheven as treasurer had commenced suit against John and William Stevens on a bond given for John, condition that he would discharge the duties of a justice of the peace; that the process was served only on *John*alone; the breach assigned in the condition of the bond was the receipt of fifty dollars as a justice, which he refused to pay over to the party entitled; John was put in default, the damages against him assessed to *$38*97, on which judgment was rendered for the penalty of the bond, with leave to issue éxecution for the damages assessed with'costs; that said judgment remained unpaid, and praying that William Stevens might be made a party to said judgment. William Stevens pleaded the following pleas to the scire facias.

1. Non est factum.

2. Nul tiel record.

3. That when the justice received the money there was no suit pending, nor judgment, nor award, upon which he received the money.

4. That said money was voluntarily paid the justice without suit, on a note not then due.

5. That said money was not received by the said justice *as a*justice.

Issue was taken on the 1st, 2nd, and 5th pleas. The 3d and 4th pleas were demurred to, which was joined.

The first and second issues were found for the plaintiff, and that on the fifth plea for the defendant'. The demurrer was sustained, and the court gave judgment for the defendant; but it afterwards appearing that the defendant had neglected to pay the jury fee, the court set aside the judgment and verdict, and rendered judgment against the defendant as on default, to make him a party to the judgment. He now assigns for error in these proceedings, 1. that the court should have overruled the demurrer to the 3d and 4th pleas; 2. that the court should not have set aside the judgment for the defendant, and rendered one against him.

*734
      *H. Stanberry,*for the plaintiff in error.

*Brazee,*contra,

cited 29 O. *L.*225, 65; 2 O. R. 18.9, 248; 5 *O. R**344.

Wright, J.

The statute, (29 *O. L.*189) empowers justices of the peace to receive money after suit, either when collected by the constable or paid in by the party, and subjects the justice to a penalty for refusing to pay money received by him as such. The question we are now called' to decide is this, where a note not yet at maturity is left with a justice to be sued if not ¡raid,. and the money is paid to him before the note becomes due, does the justice receive the money in his official capacity? A *justice*may receive demands which are due to put in suit or collect, and may receive the money without suit; but in anticipation of the debtor’s becoming liable he has no power *as a justice*to collect the money. If he receive an obligation to collect and receive the money before it falls due, he acts in that behalf as the *agent*of the holder, not as the *agent of the*law. The paying over money received by him in his official capacity is secured by his official bond, that received as the agent of the creditor, he is liable for as other individuals are. The fourth plea to the scire facias sets up a good bar to the writ, and the demurrer thereto should have been overruled.

But it is claimed that the litigation on that question was put at rest by the judgment against the justice, and could not be opened on the scire facias to make the security party. The case of *Brazee*v. *Carrol, et al. 5 O, R.*344, was cited as *settling this point. The*case referred to expressly, decides that on a scire facias against the surety, he may look back of the judgment against the principal. Indeed it is a fundamental maxim, that no one can be obnoxious to a judgment without day in court. The object of the scire facias is to bring the security in, to give him day in court; and when in, is he to be told that he cannot litigate his liability, because his principal has concluded him? We think not. The case does not go the length supposed. It only decides that if the security is *liable*on his bond, he is liable for the'amount recovered of his principal in the controversy between him and the party claiming the money.

2. The court erred also, in rendering the judgment against Stevens after verdict, as if in default, because he did not pay the jury fee. The statute (29 *O. L.*225) provides that the jury fee shall be paid by the winning party, before the verdict is recorded. It is directory to the court to require the payment before the verdict is recorded. But what is the consequence of the court’s neglect? The law imposes no penalty. If the court order the money paid *735and it is refused, the entry of the verdict may be stayed, or if entered, vacated. So, probably, the court might order the payment, and if not made, attach the delinquent for disobedience: but the court is not authorized, on such refusal, to render judgment as by default. In this case the jury fee was not paid, and court riot only entered the verdict, but judgment. When the improvident entry was vacated, the whole power of the court to deprive the party of the benefit of the verdict was resumed, but it had no power to render a judgment against him in the case, as if in default.

The judgment is reversed.