Blanchard against Cor. Myers.Headnote
An execusued 'by "a justice of the thirty’days afraentTaJuhe same was levied on the goods of the and the conom-itj fortlieir forthcoming, nt a certain day; and, affore thíexpTty^dáyíf ^nd before the day fixed by the constable, a waf regularly issued and served on the justice, it was tórar¿atídoes as a superset (leas or stay of where the execution is levied before ofsuch°certzT mri.IN error from the court of common pleas of Greene county. ' Blanchard brought an action of trespass on the case against Myers, in the court below. The declaration stated, that the plaintiff, being one of the constables of the town of Cairo, in the county of Greene, received from a justice of the peace, an execution against Tobias Myers, the 30th of January, 1811, b y ’ j c e which he was commanded to levy the amount of the goods, &c. 01 Tobias Myers, and that he accordingly by virtue of the execution, seized certain goods of T. Myers, on the same day; and that after the seizure, the defendant, in consideration of the plaintiff’s de- . , livenng the same property into the custody of the defendant, promised, by a certain engagement in writing, to deliver the said property at the house of one B.. B. on the 20tli of February, then next; but that he did not deliver it on that day, or at any other time, wherefore, etc.
The defendant pleaded non assumpsit, with notice.
At the trial, the defendant offered to prove that a certiorari on e the judgment before the justice, was regularly issued from this court, the 14th of. February, 1811, and served on the justice the same day. The evidence was objected to; but admitted by the court.
It was admitted, that the plaintiff, in the suit before the justice, did not offer to give security to the justice, after the certiorari had ^een issued 5 and that the property was, at the time of the seizure, and ever since has been, in the possession of Tobias Myers, the defendant against whom the execution was issued.
The court below charged the jury, that the certiorari was a stay of all proceedings from the time it was served, and that it excused the defendant, in not delivering the property pursuant to the receipt he had given. The jury accordingly found a verdict for the defendant. A bill of exceptions was tendered to the opinion of the court, on which a writ of error was brought to this court.
Powel, for the plaintiff in error.
E. Williams, contra.
A certiorari allowed after execution begun to be executed by the constable, is no supersedeas to the execution. The same rule applies to cases arising under justices' judgments and executions, which exists as to other courts, when a regular writ of error is allowed; and it is well settled that the allowance of a writ of error, after the sheriff has levied under a fi. f'a. is no supersedeas to it. (Meriton v. Stevens, Willes's Rep. 271.) Here the levy was made before the allowance of the certiorari, and the issuing the execution within the thirty days, and the constable taking security that the goods levied on should be forthcoming at a certain day, did not affeët the application of the rule.
The decision of the court below was, consequently, erroneous, and the judgment must be reversed.
Judgment reversed.