Paul v. Vankirk and Depu

Paul v. Vankirk and Depu. Pittsburg, Saturday, September 18. A -warrant direct- — — uíed’by the proper constable of the district, is wen directed. 4 con?taH®an(1 justify under an magistrate,though g^.01^!3^ execution against upoTseparate ai1 judgments, IN ERROR.. ' P' iijJIS was an action of trespass in the Common Pleas 4- of Westmoreland, for breaking and entering the house of the plaintiff Paid, and taking away sundry goods. The defendants pleaded non cul. with leave to give the spe- ....... cial matter m evidence. On the trial, the plaintiff called a certain William Davis, Who swore, that a day or two before the property in the declaration was taken by the defendants, he was the owner of it, and for a valuable consideration sold and delivered the whole at the still house of the witness, of which he also delivered to the plaintiff possession and the key. The consideration was the result of a lumping settlement made between the parties a day or two before the sale; and at the time of the settlement, Davis and Paul knew there were two executions out against the former and Vankirk, one at the suit of William Irwin, and the other at the suit of William Irwin assignee of Jesse Regman. The plaintiff also proved the taking by Depu and Vankirk. The defendant’s counsel then produced the transcript of two judgments against Davis, and also separate judgments against Vankirk as his bail; and offered in evidence two executions against Davis and Vankirk, under which Depu as constable, and Vankirk as his assistant, had seized the goods. The executions were respectively directed “ Westmoreland .County, The Commonwealth of Pennsylvania, to--constable;” and recited that Irwin had obtained judgment before the justice against Davis and Vankirk, the amount of which it required the constable to levy of their proper goods &c., as if the judgment were joint. To this evidence the plaintiff objected, but the Court admitted it, and sealed a bill of exceptions. Two objections were urged in this Court against the evidence as a justification of the defendants: 1. That the writs were not directed to any constable, and therefore not to the constable of the township &c., where the defendapt resided, according to the act of 20th March 1810; but it was admitted they were executed by the proper constable. 2. That the judgments, being separate, did not warrant the executions, which were joint. Forward, for plaintiff in error. A. W. Foster, contra. [MAJORITY — Tilghman C. J.] 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.