Evans v. Boggs
Supreme Court of Pennsylvania
ERROR to the Common Pleas of Butler county. Thomas Evans against Samuel D. Boggs. This was an action against a constable to recover the amount of an execution which had been placed in his hands, and to which he had made no legal return.
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ERROR to the Common Pleas of Butler county. Thomas Evans against Samuel D. Boggs. This was an action against a constable to recover the amount of an execution which had been placed in his hands, and to which he had made no legal return. The defendant relied upon two grounds of defence. 1. That the judgment was paid to the plaintiff before the execution issued. 2. That after the return day of the execution, the plaintiff issued another, which was a waiver by him of his right to resort to the defendant. Both grounds were sustained by the evidence; and the court below was of opinion that both…
1Opinion of the Court
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 *230has 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 “…
2Cited by1 opinion
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