Davis vs. Bryan, 7 Yer. 88

Peck, J. delivered the opinion of the court. This was a complaint brought by warrant before two justices of the peace for selling a cow of the plaintiff. The defendant below justified under an execution which came into his hands as a constable, but is met in his de-> fence by the plea of the plaintiff, that, being the only one he owned, she was exempt by the act of 1820, ch. 11, from'levy and sale. Thequestion debated and forthis court to decide on, is: 1st. Whether, inasmuch as the execution had not endorsed upon it, as the act requires, the time when the contract was made, the constable was not justified.

The act is directory, and though the justice ought to have made the endorsement, still the plaintiff should not lose his right by the act of one over whom he had no control. The constable, it is presumed, was put upon his inquiry and warned of the plaintiff’s right in the exemption of this

article of property, and then proceeded at his peril. 2d. The original executions were produced in evidence and proved by the justices issuing them. One of the justices had resigned and his papers (one of the executions excepted to,) had been returned into the clerk’s office according to the directions of the act of assembly. It was insisted that the execution, which properly belonged to the clerk’s office, should have accompanied a transcript and have been certified by the clerk, but there was no evidence that the execution had ever been returned by the constable. The evidence was well received. Judgment affirmed.