Opinion
Fall Sessions, 1842.
Houston, for plaintiff.
Ridgely, for defendant.
CERTIORARI to justice Morgan, in a judgment given by the justice against the defendant, as a constable, for neglecting to return an execution in his hands at plaintiff's suit against Henry Hazzard. The defendant appeared and admitted that he had no cause to show why judgment should not be rendered against him and execution issued for the amount of the original execution and costs. That execution was stated to be $47 24 debt, fifty-six cents costs, and the judgment now rendered was $48 97 and costs.
The exceptions were 1st. that the justice had no jurisdiction; 2d, that it did not appear for what neglect of duty of the constable the suit was brought; 3d, that the service of the summons was not verified by oath, and 4th, that judgment was rendered against the constable for more than the amount of the original execution.
The record stated that the summons issued 5th of January, 1839. against C. Cannon, constable, requiring him to appear on the 9th of January, to show cause why execution should not be issued against him for the amount of a judgment at suit of the Wrights against PI. Hazzard for the amount of $47 24 debt, with fifty-six cents costs, on the 11th of September, 1838, on which judgment execution issued to said constable, returnable 1st of October, 1838, which execution he failed to return in the time aforesaid; and also to comply with and perform his duty as in said execution required. Summons served. Defendant appeared personally on the 9th of January, and then and there sets forth that he can show no cause why judgment of execution should not be entered and issued against him for the aforesaid debt, interest and costs of the aforesaid claim: therefore, judgment accordingly for $48 97 and costs $1 01.
Mr. Houston, for plaintiff, argued — 1st. That the act of 1833 only applied to cases where improper, false or defective returns had been made by the constable, and not to the case where no return had been made. 2d. That it did not sufficiently appear for what neglect of duty the proceeding was instituted against the constable. 3d. That the judgment was rendered against the constable for too large a sum, being for more than the amount of the original execution. (2 Harr. Rep. 245.)
But the court overruled all the objections, and affirmed the judgment.
1. The act of 1833 was designed to give a summary remedy against constables for neglecting to make return of executions, as well as for making false or insufficient returns. (8 Del. Laws 265; Dig. 341, sec. 18.)
2. It appears that this proceeding was for not returning the execution, which is sufficient, without referring to any other breach of duty.
3. It is not competent for the plaintiff to alledge as error, that the amount of the judgment in his own favor is more than he was entitled to recover; and if it was, it appears that though this judgment is for more than the amount stated in the summons, it is only for the amount of the original execution, with interest and costs; the interest having accrued whilst the proceedings were pending.
Judgment affirmed.