
    May v. Sly.
    
      Friday, November 22.
    When a constable justifies an arrest, &c. under a capias ad satisfaciendum, which under the statute he is bound to return, the plea must aver a return of the execution, or show a sufficient reason why a return had not been made.
    ERROR to the Montgomery Circuit Court.
   Sullivan, J.

This was an action of trespass for an assault and battery and false imprisonment. The defendant pleaded in justification, that on, &c., he was a constable of the township of Madison, in the county of Montgomery; that a writ of capias ad satisfaciendum was issued by a justice of the peace of said county and delivered to him, whereby, after reciting that one Thomas M. Curry had obtained a judgment against the plaintiff, May, for the sum of 26 dollars and 12 cents before said justice, besides interest and costs, the defendant was commanded to take the body of May to satisfy said Curry the judgment aforesaid, and to commit May to jail there to remain, &c.; and that' he did, according to the command of said writ, on, &c., at, &c., arrest said May as he lawfully might, &c. Demurrer to the plea and judgment for the defendant.

The sufficiency of this'plea depends upon the construction to be given to the 18th section of the act “authorizing the appointment of constables 'and defining their duties.” Rev. Stat. 1838. Without reference to that statute, it seems that an officer justifying under mesne process must show in his plea, that the process has been returned, but if he justify under final process, he need not, in general, aver the return of it. The reason is, that the former is said to be returnable process, the latter not; and if an officer justify under process which it is his duty to return, he never has a complete justification until he discharges that duty. 1 Cowp. 19.—10 East, 82.—5 B. & C. 485.— 8 Johns. 52.—2 Str. 1184.—5 Co. 90.—2 Blackf. 127. The statute above referred to makes all process, that comes into the hands of a constable, returnable. It abolishes the distinction, in that particular, between mesne and final process. The reason, therefore, of the rule which requires an officer, who seeks to justify his acts under mesne process, to show in his plea the return of the writ, applies to process of execution issued under our statute .

R. C. Gregory and D. Brier, for the plaintiff.

JR. S. Lane and S. C. Willson, for the defendant.

We are of opinion that the plea in this case is defective in not averring a return of the capias ad satisfaciendum, or showing a sufficient reason why a return has not been made.

There are other exceptions taken to the plea, but we do not think either of them tenable.'

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c. 
      
       Vide Davis v. Bush, Vol. 4 of these Rep. 330.
     