
    Williams et al. vs. Hall.
    Motion,
    A replevin bond —to have the force of a judgment, must to acknowledged before an officer— otherwise it is but a common law bond, on which no execution can legally issue.
    A constable is not liable for any failure to act upon an execution issuedupon a mere common law bond, not having the force of a judgment. Where a replev inbonddoesnot purport to have been acknowledged before an officer,evidence is admissible to show that a private person took the acknowledgment. —An obligor is a competent wit ness to prove that fact, in a trial between the obligee, and an officer charged with a failure to return an ex’on founded on tlie bond,
    The measure of responsibility of an officer for failing to return, in due time, commonwealth’s notes, is the value of the notes at the return day, with interest and damages, And there must be proof of the value of the notes, or the judgment will be erroneous. an execution
    [Messrs. Sanders and Depew for Plaintiffs : Mr. Monroe and Mr. McCann for Defendant.]
    From the Circuit Court for Grant County.
    
      April 18.
   Chief Justice 'Robertson

delivered the Opinion of the Court.

This writ of error is prosecuted to reverse a judgment, on motion, against a constable and his sureties, for his failure to return, within twenty clays after the return day, » fieri facias which had been delivered to him.

There are many irregularities in the proceedings; but we shall notice only two objections to the judgment.

First. The execution having been issued on a bond described as a replevin bond, but which did not purport to have been acknowledged before any constable, the plaintiffs in error offered to prove, by one of the obligors in the bond, that it was not taken by ,an officer, but was, in fact, acknowledged before a private individual. The circuit court refused to admit the offered testimony.

If there was no judgment authorizing the execution, the constable was not bound to levy, or to return it, and could not be held liable for any penalty for failing to do either, or both. If the bond was not taken as a statutory obligation, it could not be deemed a judgment, but could have the effect only of a common law obligation. Waiving the question whether, as it does not appear on its face to have been officially taken, it should therefore be deemed not to have the effect of a judgment, we are clearly of the opinion, that the testimony which was offered was competent. It would not contradict the bond, and the witness had no interest in the event of this suit; no testimony which he could give in this case, could impair his liability as an obligor in the bond.

Second. The execution was for notes of the bank of the commonwealth. The judgment against the plaintiffs in error, is for specie; and there was no proof of the value of notes of the bank of the commonwealth.— In this respect, also, the judgment, is erroneous. The value of the paper when the execution should have been returned, together with interest and damages, is the legal measure of responsibility, if any liability at all be established.

Wherefore, the judgment is reversed, and the cause remanded.  