Evans v. Boggs

2 Watts & Serg. 229

Opinion

The opinion of the Court was delivered by

Sergeant, J.

The issuing of a new execution by the plaintiff was not a waiver of his resort to the constable, if the latter had been fixed for the debt, as was decided recently by this court in the case of a sheriff, Myers v. Commonwealth, (ante 60). On the other point, however, the instruction of the court was right. Several cases have decided that the constable, notwithstanding he has failed to comply with the injunctions of the first part of the 12th section of the Act of 1810, may, under the latter part of the same section, show that there was “ sufficient cause” for his not doing so. It may be shown by the constable that the plaintiff had no right to issue the execution, having already received the debt, or levied it by a prior execution, and this exempts the officer from liability to the plaintiff Such process, it is true, is not absolutely null and void, but it is one which is unwarrantable and improper, and which the plaintiff ought not to be permitted to derive an advantage from, as against any person whatever.

Judgment affirmed.