#### Ungles *v.*Graves.

The subscribing witness'to a deed resided in Ohio, and the acknowledgment had been taken there before the mayor of Cincinnati. *Held:*that the deed,—on proof that the grantor had executed it, and that the witnesses had^ subscribed it, in the pre? sence of the witness,—was admissible in evidence.

A constable is virtually within the provisions of the statute, requiring sheriffs to pay rent befoie the removal of goods taken in execution on demised premises; and, when sued for improperly paying rent, he is bound to give jome evidence that the rent .was due.

ERROR, tp *the .Marion*Circuit Court.

*Tuesday, November*11.

Holman, J.

*Graves*obtained 3 judgment before a justice of *the*peace against *Rufus Jennison.*On,this judgment he took out an execution, which .he placed in the hands of Ungles, a constable. *Ungles*returned, that, out of the property of said Jennison, he,had made tbe sum of 57 dollars and 31 cents; all of which, *except*the costs, he had paid to *Samuel*Jennison, on notice: which notice, being a claim of said *Samu.el Jennison’’s*to the .sum'of 75 dollars, for two quarters’ rent of the premises on which the property was executed, was made a part of the constable’s return. s *Graves*then sued out a *scire facias,*requir-, ing *Ungles to*show cause why he should not pay, on said execution, the money thus paid *to Samuel Jennison.*To this *scire facias,*the notice and claim of *Samuel Jennison*were pleaded; with .an averment that the said *Samuel Jennison,'the*landlord of the premises on which the property was executed, proved to the satisfaction of the constable, that he, as landlord, was entitled to said money for rent then due, which money, w.as paid accordingly. The justice of the peace gave judgment in favour of *Ungles. Graves*appealed to the Circuit Court, and obtained a judgment against *Ungles*for the amount thus paid" to the landlord.

By a hill of exceptions we learn, that, on .the trial before the Circuit Court, *Ungles*introduced a patent from the *United States*to *David■ E. Wade,*for the premises on which the property was executed; and offered in evidence a deed from *Wade*to *Samuel Jennison*for -the said premises, attested by *Isaac G. Burnett*and *William Jones,*and acknowledged before *Isaac G. Burnett,*may-*192°r *^nc^nnat0*which deed was rejected by the Circuit Court. He then proved by *Rufus*Jennisorf, that *Wade*signed, sealed, and acknowledged said deed; and that *Isaac Q. Burnett*and ^!'am *Jones,*who now reside in the city of *Cincinnati,*state of *Ohio,*subscribed their names as witnesses to said deed in his presence. This evidence was also rejected by the Circuit Court; but we think it should have been admitted.

*Brozan,*for the plaintiff.

*Fletcher,*for the defendant,

A constable, though not named, is, virtually, within the provisions of the act of assembly, that requires sheriffs to pay rent due on demised premises, before property taken in execution on said. premises is removed; and, when sued for paying rent improperly, he is bound to give some evidence that the rent was due. 3 Stark. Ev. *1354.—Keightley*v. *Birch,*3 Campb. 521. The landlord’s title to the premises, is a principal feature in the officer’s defence ; and we think the deed from *Wade*to *Samuel Jennison,*was sufficiently proved by the testimony of *Rufus Jennison.*When the subscribing-witnesses to a deed reside in another state, proof of their hand-writing is generally .deemed sufficient. In some cases, however, proof of the handwriting of the obligor or grantor has also been required. Ip this case, the evidence embraces both these requisitions. *Rufus Jennison,*who is a competent witness, testifies to the execution of the deed by *Wade,*and to the attestation of it by the subscribing-witnesses in his presence; which fully answers all that is required in any case we have yet seen. See a variety pf cases on this subject cited in 1 Stark. Ev. 338—342.

*Per*Curiam.

The judgment is reversed with costs. Cause remanded, &c.