#### GIDEON E. HUKILL, d. b. *vs. JACOB*STAATS, use, &c. p. b. d. in error.

In a proceeding against a constable under the act of 1833, for neglect of duty, the process should not be generally to answer the plaintiff’s demand ,- but to show cause why execution should not issue against him for the amount of the original execution.

It ought also to show for what neglect of duty the proceeding is taken.

The judgment in such proceeding must be for the amount of the original execution and costs.

Certiorari to Justice Weldon.

Record. Jacob Staats, use of David Staats *vs.*Curtis Abbott,. Venditioni exponas issued September 13th 1835, to constable Gideon *386E. Hukill, returnable 31st October next. Debt $26 75, costs $1 55. Returned October 20th 1835, “ property all sold and applied to prior claims.”

Jacob Staats, use of David Staats *vs.*Gideon E. Hukill. Summons issued 8th January 1838, to D. Hall, constable, commanding him “ to summon Gideon E. Hukill, late constable, for neglect of duty on execution process against Curtis Abbott, to be and appear on Saturday the 13th of January, inst,” at &c., before &c., “ to answer to Jacob Staats, for the use of David Staats, touching a cause of action wherein $33 11 is demanded.” Returned “served personally, January 10, 1838.”

Action for neglect of duty on execution process against Curtis Abbott. Demand $33 11. Parties appear on 13th January; and, defendant not ready for trial, adjourned to 27th; when, the parties not appearing, cause continued until 10th February ; when the parties appear, and, on trial, judgment for plaintiff for $23 72. Execution issued.

The exceptions to the record were — 1. That the cause of action set forth was not within the magistrate’s jurisdiction. 2. That the original execution process against Curtis Abbot, was returned by the said late constable with a legal and proper indorsement thereon. 3. That the sum demanded in this action was a different and larger amount than the sum mentioned in the original execution, or than was due thereon. 4. That the process issued against the constable was for an original cause of action, and not to show cause why an execution should not issue against him for the amount of the first execution. 5. That the judgment entered by the justice in this cause, was not for the amount of the first mentioned execution together with the costs, but for a different sum. 6. That it no where appears that the proceeding against the defendant below was for a false return on the original execution process.

*Per Curiam:*

Harrington, J.

The proceedings in this case are irregular. They are founded on the act of 6th February, 1833, but are not in conformity with that act. That act provides that, whenever an execution shall be delivered to a constable, if he shall not at the return day produce the plaintiff’s receipt for the money levied, or shall not make such other return as may be sufficient in law, or shall make a false return; the justice shall, on request, issue a summons commanding the said constable to appear and show cause why an execution should not issue against him for the amount of the first execution; and if he shall fail or neglect to appear, or does not show sufficient cause why the execution should not issue against him, then the justice shall give *387judgment against him for the amount of the first mentioned execution, together with the costs.

*Rodney,*for defendant below.

*W. H. Rogers,*for plaintiff below.

The first error in this proceeding is, that the summons instead of being to appear and show cause why an execution should not issue for the amount of the original execution, being $26 75 and 1 55 costs,, is a summons in the nature of an original cause of action to appear and answer the demand of the plaintiff to the amount of $33 11.

It does not sufficiently appear for what neglect of duty this proceeding was taken. It was not for neglecting to produce the plaintiff ’s receipt, for it was not pretended that the money was levied; neither was it for making a return which was insufficient in law; it must, therefore, have been for making a false return; yet that does not appear from the record, the statement being merely that it was for neglect of duty.

The judgment rendered in the case is not such as is warranted by the law. The neglect of duty which renders the constable liable for any thing, or the making a false return, renders him liable for the whole amount of the original execution, together with the costs; and this is the judgment which the act requires the justice to enter; yet the judgment in this case is for a different sum.

For these reasons the judgment and proceedings in this case must be reversed.