
    Hazleton v. Simpson.
    SvEOrAL CONSTABLE. Affidavit showing necessity for appointment. By the Act of 1870, amending see. 4148 of the Code, a magistrate is only empowered to specially deputize one to act as constable when oath is made in writing ,by the party or his attorney that there is no regular officer at hand, and that the business is urgent. The oath made in this case was that the affiant could not conveniently see an officer, and wishing to bring suit, asks a special deputation. The deputation made' on such an affidavit was void, and the notice given is void also, being given by one not authorized to serve the warrant.
    PROM MARION.
    Appeal from Circuit Court of Marion, July Term, 1872. J. B. Hoyx, J.
    Burt, for Hazleton.
   Freeman, J.,

delivered tbe opinion of the court.

This is a certiorari and supersedeas to quash an execution. The grounds are, that the party who served, or attempted' to serve the warrant, was not legally authorized by the magistrate to serve the warrant, and as a matter of fact, the warrant was not read, but being attempted to be served by the deputy, the whistle sounded, and before petitioner could be informed of any such- attempted service, the cars started, leaving petitioner in mysterious wonder as to what was attempted.

The only real issue is as to the validity of the deputation, for if the party was an officer, the return brought up with the papers shows a regular service of process. Under the Act of 1741, copied into the Code, this deputation, we think, would be good: 9 Hum., 113; 11 Hum., 71. By an amendment to that act, passed March 4, 1870, it is provided that the magistrate may specially deputize any person as constable, if no constable is at hand and the business urgent; but no magistrate shall make such a special deputation unless one of the parties to a suit pending, or his or her attorney, shall make oath before the magistrate, and file the same in writing, stating that to the best of their information there is no regular officer at hand, and that the business is urgent. The affidavit made in this case by plaintiff is, “that he being a regular brakesman upon the Jasper Branch Railroad, cannot see an officer convenient, and wishing to sue on a claim due him, therefore asks for a deputation to execute a warrant for the same.” This affidavit is essentially defective, as the fact that he did not see an officer does not show that none was at hand, or any extraordinary occasion for a deputation, and then it fails to show that the business was urgent. It was a simple suit on an account due him, and, as far' as we can see, presented no more urgency for the suit than in any other case of debt. The deputation was void, as made in violation of the statute; the notice consequently was void, being by a party unauthorized to summon or serve the warrant.

The case will be reversed and the execution quashed.  