Laughran, Treasurer, on the Relation of Spiller, v. Campbell and Others, in Error, 3 Blackf. 486

Laughran, Treasurer, on the Relation of Spiller, v. Campbell and Others, in Error. DEBT on a constable’s bond against the principal and his sureties. The declaration assigns the following breaches: I. That on the 30th of August,- 1826, Spiller caused a fieri facias to be issued by R. Meek, a justice of the peace, and suecessor in office of J.

Goodhue, late a justice of the peace, which execution was issued by Meek (who had by succession and delivery Goodhue’s docket, and sufficient authority for the purpose) on a judgment rendered by Goodhue on the 27th of November, 1822, in favour of Spiller against French for, &c.; that the execution was directed to Campbell, as constable, and placed in his hands to be served; that Campbell did not execute the writ, though French had sufficient goods, &c., but refused to levy, &c.; whereby, &c. 2.

That Campbell, by virtue of such another execution so issued, levied on a horse of French’s, &c., but refused to sell him, and permitted French to take him away, &c. 3. That Campbell, by virtue of such another execution so issued, levied on a horse, &c., and falsely returned that the horse was rescued, See., and that there was no other property, &c. 4.

That Campbell having received such another execution so issued, neglected and refused to make any return of the same, &c. 5; That Campbell, by virtue' of such another execution so issued on a judgment, See., which had been transferred from the docket of justice Goodhue to that of justice Meek, levied on a horse, See., and falsely returned that the horse was rescued, &c. The defendants demurred to the whole declaration, except the 5th breach. Cause's of demurrer: — 1.

It is not shown that the judgment had been revived by scire-facias. 2.’It is not shown that Goodhue’s judgment had been legally transferred to Meek’s docket. 3. It is not averred that the relator had recovered a judgment against the constable. Plea to the 5th breach, that the judgment .was not duly transferred, See. concluding to the country. The plaintiff demurred to the plea, because it. concluded to the country. The'defendants’ demurrer was sustained, and that of the plaintiff overruled.

Judgment below for the defendants.' The Court considered, that the demurrer of the defendants should have been overruled, and that of the plaintiff sustained. Judgment reversed with costs. Cause remanded, &c. J. H. Scott and P. Sweetser, for the plaintiff. J. H. Thompson and H. P. Thornton, for the defendants.