Paul v. Vankirk

6 Binn. 123, 1813 Pa. LEXIS 76

• Court: Supreme Court of Pennsylvania
• Decided: September 18, 1813
• Status: Published

Opinion

Tilghman C. J.

after stating the case, delivered judgment.

Two objections are made to the execution. 1. That it is not directed to any constable. 2. That there was no judgment to warrant it.

1. The act of assembly orders that the justice shall direct his warrant to the constable of the district. This execution is directed to —--constable. It would have been more proper to direct it to the constable by name, or to the constable of the district generally; but it may be supported, because it is admitted that it was executed by the constable of the district. The word constable with a blank, cannot be said to be directed to a wrong constable, and maybe understood as intended for the right one. I do not know that the constable was bound to execute it without a more particular direction, but he was justified in so doing.

2. The execution was certainly irregular. A joint execution against principal and bail, ought not to be issued on a separate judgment against each. If the plaintiff in the suit before the justice, had been defendant in the present action, it might have lain upon him to shew that his execution was supported by the judgment; but the case is different with the constable^ and the other defendant who acted as his assistant. It is enough for them to shew an execution issued by competent authority. Whether the execution is supported by the judgment, is a question in which it would be unreasonable for the law to involve them. It was necessary for the defendants to make out that the goods levied on were the property of Davis, and that they had authority to make the levy. I am of opinion that the execution was legal evidence to shew the authority, and therefore the judgment should be affirmed.

Judgment affirmed.