
    Pitman, &c. vs. Couts.
    May 2.
    Error to the Todd circuit; Efamir Broadnax, Judge.
    
      Motions. Constables. Executions. Failure to return Executions. Interest. Malice.
    
    .Motion.
    •Jase 2X
   Judge Buckneii

delivered the opinion of the court.

Couts moved the circuit court for judgment against Pitman and sureties, for the sum of $25 871 cents, with interest, &c. for his alleged failure as constable, to return an execution within twenty days after the return-day thereof. Judgment was entered against the defendants in the motion, for $23 50 cents, that being, in the language of the judgment, “the estimated value, in specie, of the debt, in the notice mentioned,” with interest thereon at the rate of six per cent, per annum, from the 28th of May, 1827, un-u'l paid, and the amount of costs 'in the notice men tloned, and also for ten per cent, damages on-the whole amount thereof,&c. To reverse the judgment, Pitman, &c. prosecute this writ of error.

On a motion-against a constable and hia sun-tie», fora ' veral)i(, failure to return an ox(-ciiUon, interest not rocO"

-Morehead, for plaintiffs.

The judgment is erroneous-for two reasons:

1st. The notice describes the execution, for the neglect to return which, the plaintiffs in error were thereby informed, a motion would’ be made against them, as one dated on the 21st of May, 1829; that, which the defendant attempted to prove had been delivered to the officer, bore a different date, and was for Commonweallh’s bank notes, instead of dollars, as staled in the notice.

2d. The judgment was erroneous as it relates to interest. See the case of Trover, and others vs. Sharp, decided Spring Term, 1830.

It must be reversed, and-the cause remanded, with directions to dismiss the motion with costs.  