#### *Harris vs. Smith.*

Motion.

Case 60.

Appeal from the Floyd circuit; S. W. Robbins, Judge.

*Motions against Constables. Limitations. Jurisdiction.*

Facts of the case.

June 9.

Judge Owsley

delivered the opinion of the court.

Between, the years 1817 and 1819, inclusive, Smith placed into the hands of Harris, who was constable of Floyd county, various executions, which issued in his favor against the estate of different persons, from a justice of the peace for that *311county. Some of the executions were for more, and many others for less, than five pounds each. Some of the executions were never returned to the justice; others were returned by the constable satisfied, and some again were returned, no property found.

Notice,

Judgment,

Motion cannot be maintained against a constable, for failing to return an execution,or pay over the money collected on it, after two years.

Circuit courts have rntJ?" tions against *312constables for failing to return executions or pay over money ia cases below five pounds.

*311The returns upon most of the executions bear date more than two years before the 19th of March, 1819; and such as have returns upon them, dated within two years of that time, are for less than five pounds.

On the 19th of March, 1819, a notice was drawn up by Smith, addressed to Harris, in which the latter was informed that on a named day of the next term of the Floyd circuit court, the former would *move the*court for a judgment against him, on account of his delinquency in various particulars, as respects the collection and accounting for the amount of the several executions.

The motion was accordingly made, and judgment rendered by the court in favor of Smith, against Harris, for three hundred and seventeen dollars, fifty-six and one half cents, besides interest and costs.

Various objections, both as to the sufficiency of the notice, and the correctness of the judgment rendered thereon, were tallen in argument, most of which, however, need not *be*noticed, because, admitting *the*sufficiency of the notice, it is perfectly clear, that the judgment cannot be sustained.

It was erroneous to render judgment on account of any delinquency, either in the constable, Harris, having failed to return his executions above five pounds within due time, or his having failed to pay the amount collected on those executions, because his delinquency in those respects must have happened more than two years before the date of the notice, and after the lapse of two years, no motion can be sustained against him for such delinquency.

And with respect to the executions for less than five pounds, no judgment should have been rendered, not only because some of them were returned, by the constable, more than two years *before*the *312date of the notice, but because, for a failure to return those executions in clue time, or for not paying over money collected under them, the constable is liable to be proceded against before *the*justice who issued the executions, and not to a motion in the circuit court.

Two or more such demands cannot be united so as to give the court jurisdiction.

*Turner*for appellant; *McConnell*for appellee.

It is true, when added together, the amount of those executions exceeds five pounds; but the default, in respect to each execution, gave a substantive cause of proceeding before the justice, and it is not by Uniting several substantive causes of action, which are cognizable before one tribunal, that the jurisdiction can be translated to another tribunal, which, without such union of causes of action, possess no cognizance of the matter.

The judgment must therefore be reversed with costs, the cause remanded, and the motion dismissed with cost.