
    Berry versus Staples & al.
    
    A constable has authority to serve an execution, issued upon judgment when not more than one hundred dollars was recovered as damage, although the damage and cost, taken collectively, amount to more than that sum.
    On Exceptions from Nisi Prius, Wells, J.
    Debt on a poor debtor’s relief bond.
    An execution had issued against the principal defendants on a judgment for $100 damage and four dollars thirty-five cents cost.
    It was placed for collection in the hands of a constable, who thereupon took the bond upon which this suit is brought. The defendants requested instruction to the jury that the constable had no authority to serve an execution, wherein the sum to be collected is more than $100, and that, therefore, the action is not maintainable. That instruction was refused, and the defendant excepted.
    
      C. F. Hill, for the defendants.
    
      Palmer, for the plaintiff.
   Shepley, C. J., orally.

— The R. S. chap. 104, sect. 34, provide, that “ a constable shall have authority to serve any writ or precept, in any personal action, where the damage sued for and demanded shall not exceed one hundred dollars.” An execution is embraced within the term “precept.” This appears from sect. 35 which prescribes, that before serving any “ writ or execution,” the constable shall give bond. He may therefore serve an execution wherein the damage recovered was not more than $100, although if the cost be added, the amount to be collected shall be more than that sum, and such has always been the understanding of the profession.

Exceptions overruled.  