
    Elisha Radford, to use, &c., v. James W. Hull et al.
    Execution — motion asainst constable. — Money paid by a judgment debtor to a constable ■without an execution in his hands, if not paid over by said constable, cannot be recovered by motion, upon his official bond.
    IN error from the Circuit Court of Kemper county. Hon. John Watts, judge.
    This was a motion, tried in the Circuit Court of Kemper county, upon an appeal from a judgment of a justice of the peace of that county, against a constable and his sureties, upon his official bond, on account of money collected by said constable. The judgment in the justice’s court was rendered against James Hull, one of the sureties, the summons having been returned “not found” as to Jas. C. Fyson, constable, and Thomas Thurmond, the other surety.
    The evidence developed upon the trial was as follows. William Brodway testified, that about the-day of-, 1850, he assigned a judgment for $18, obtained in a justice’s court in Kemper county, before B. C. Oppelt, J. P., against Robert M‘Nair, to E. Radford. Robt. M£Nair testified that he had obtained a stay of execution upon said judgment, but before the expiration of said stay, had paid said judgment to Jas. C. Fyson, the constable, and took his receipt for the same; which receipt was exhibited upon trial.
    It was admitted that the docket kept by the said justice of the peace, at the time of the rendition of said judgment, and all the papers appertaining to the case, were lost; it was also admitted that James Hull, defendant, was one of the sureties of Jas. C. Fyson, upon his official bond.
    The defendant then moved the court to dismiss the cause, for various reasons; which motion was overruled, and judgment rendered the plaintiff for $24.97; whereupon exceptions were tendered, and the case brought to this court.
    
      J. 8. Samon, for plaintiff in error,
    Cited, 3 Cushm. 511; 2 S. & M. 284; 8 How. 249.
    No counsel appeared for defendant in error.
   Fishes., J.,

delivered the opinion of the court.

This was a motion, tried in the Circuit Court of Kemper county, upon an appeal from a judgment of a justice of the peace of that county, against a constable and his sureties, upon his official bond, on account of money collected by said constable.

The whole evidence is set out in the bill of exceptions; and it appears that the constable did not receive the money, in virtue of an execution in his hands. The motion can only be sustained when the constable has received money on an execution. (Hutch. Code, p. 702, § 17; p. 696, § 6.)

Judgment reversed, and judgment in this court, upon the motion, for the plaintiff in error.  