John C. Spinks and others v. John F. Caldwell, 23 Tex. 623

Bell, J. We are of opinion that there was no error in the judgment of the court below, sustaining the motion to dismiss the certiorari. In the case of Hamilton v. Ward, 4 Texas Rep. 356, which was a motion against a sheriff under the provisions of the 10th and 23d sections of the Execution Law of 1842, this court held that the sheriff might properly be proceeded against in the same motion, for failing to pay over money when collected, and for failing to return the execution; although it was said, that the complainant in the motions could have but one satisfaction. Thé 9th and 10th sections of

an act defining the office and duty of constables, of May 12th, 1846, on which the motion in the present case was founded, are analogous to the 10th and 23d sections of the Execution Law of 1842, upon which was founded the motion against the sheriff, in the case of Hamilton v. Ward. The motion, in the present case, charges that the constable collected the money on the execution placed in his hands, and failed to pay over the same; and the motion prays judgment against him and his sureties, for that particular delinquency.

But the motion also charges, that the constable failed to return the execution, and this is a distinct charge, although no judgment is asked for this cause. We think that the allegations of the motion are sufficiently precise and full, to notify the constable and his sureties of all the grounds of complaint; and, inasmuch as it was competent for the appellee to embrace both grounds of complaint in the same motion, it was not error for the justice to render judgment for either of the causes alleged. The judgment of the court below is, therefore, affirmed. Judgment affirmed.