Opinion
Spring Sessions, 1838.
Ridgely, for plaintiff.
Brinckloe, for defendant.
DEBT on a constable's bond. Narr. Oyer. Plea, "performance." Replication suggesting breaches. The breach assigned was, that defendant refused to pay the proceeds of goods sold by him to plaintiff's execution, which had a prior lien.
The plaintiff, after proving his judgment, offered the original levy and inventory without producing the execution. The judgment docket stated that an execution had issued.
The 17th section of the act "providing for the recovery of small debts," requires the constable to return the execution with a certificate thereon under his hand of all his proceedings; and with an inventory and appraisement if there shall have been a levy made. The inventory and appraisement have a necessary connection with the execution, and that connection must be shown. It must appear that the levy was made by lawful authority in execution of the judgment, and we do not see how we can admit evidence of the levy without showing the execution, or proving its loss. It may be, as is alledged in this case, that there was no lawful execution, and no authority therefore to make the levy.
Plaintiff nonsuited.