
    James Lashley et al. v. T. Wilkinson.
    1. Summary proceeding. Motion. Constable. Notice. In a summary proceeding, hy motion, against a constable, the notice is sufficient if it describes the note placed in the constable’s hands for collection— the date and amount — the date and amount of the judgment rendered upon it, and the execution issued to him in the case — that the execution had not been returned into the office from which it issued within thirty days thereafter, nor the money due thereon paid over according to law; and that, therefore, judgment is demanded against the officer and his securities for the amount of the judgment of the justice of the peace, with legal interest from the rendition thereof, and twelve and one-half per cent, interest on the same from the time it was demanded, by way of damages.
    2. Same. Same. Same. Same. The validity of a notice, for the non-return of an execution, is not affected by the fact that it demands, as a legal conclusion, more or less by way of interest, or damages, than the plaintiff is entitled to. The law fixes the officer’s liability upon the case stated, and it is the duty of the court to1 give judgment for the proper amount.
    
      3. Same. Same. Same. Same. Variance. If the notice is, in other respects, good, a variance between the date of the execution produced on the trial and the one described in the notice will not be fatal.
    FROM PAYETTE..
    At the February Term, 1859, HUMPHREYS, J., presi-' ding, judgment was rendered for the plaintiff. The defendants appealed.
    J. A. Anderson, for the plaintiffs in error.
    The first point contended for by the plaintiffs in error is, that the notice does not sufficiently state the grounds' of the motion, that is, whether for the non-return of the execution, or for collecting money and not paying it over. The language of the statute authorizing the motion for non-return of an execution, is as follows r “Provided the plaintiff, his agent or attorney, give to the constable or other returning officer, five days’ notice, at least, of the time and place of sucli^motion.” Nicholson & 0., page 299. The statute requires notice of such motion. That is, it requires that the notice shall state the grounds of the motion. The notice in this case states that the constable had not returned the execution ; and, also, that he had not paid over the money due thereon. It says that the motion will be made for “ the amount of the judgment and legal interest from the execution thereof, and twelve and a half per cent, interest thereon from the time it was demanded, by way of damages.” That is clearly a notice of motion for-collecting and failing to pay over. The motion given by statute for failure to return an- execution, is for the amount of the execution, and twelve and a half per nent. damages thereon, absolute. The motion for money .collected, is for the amount collected and twelve and a /half per cent, per annum, from the time demand is made,. Nicholson Sup., 105. There is, therefore, a fatal vari.ance between the grounds of motion mentioned in the ¡notice, and the motion actually made. The constable 'had not five days notice of “ such ” motion as was «made.
    The second point is this: The notice speaks of a.n execution issued on the 5th of June. The execution offered in evidence issued on the 5th of April. Plaintiffs in error objected, at the trial, to the reading of said /execution, as being a different one from that mentioned .and described in the notice. The variance is, clearly, fatal. The notice certainly ought to state the ground of .action. The failure to return every execution is a distinct cause of action, and the party should have notice .of the exact execution, so that he may be prepared for .defence. The authority relied on by the defendant in .error, is McMullen v. Goodman, 4 Hum., 239. That ,is a case where the execution mentioned in the notice ■•was described as an execution against J. L., and the ..execution offered in evidence was against J. L. and A. ,L. The court held that not to be a fatal variance.
    The distinction between the two cases is this — in the ,,case recited the same execution is merely mis-described, .in the case before the court the executions are necessarily different. In the case recited, the court says: “The .execution was certainly against J. L., and in that particular complies with the notice; but it is, also, against Almond Lowry, the sta.yor. Does . this necessarily malee it a different payer ? ” The ' court said not. But is not an execution described as issuing on the 5th of June, necessarily a different paper from one issuing on the 5th of April ? Clearly so.
    This case, therefore, comes up to the test laid down by the court. The ground of the motion made before the magistrate for non-return of one execution — the proof before the Circuit Court is non-return of another — an entirely separate cause of action. 1 Sneed, 201.
    Pulliam, for the defendant in error,
    insisted that the notice given in this case was in substantial compliance with the law, and sufficient; and to sustain this position, cited the act of 1885, ch. 17, § 4; act of 1842, eh. 37, § 1, Nich. Sup., 105; Cook v. Smith, 1 Yer., 148-9.
    lie also contended that the variance between the date of the execution mentioned in the notice — the 5th of June, 1856 — and the date of the execution produced on the trial — the 5th of April, 1856 — was an immaterial one; and, therefore, not fatal. McMullen v. Groodman, 4 Hum., 239-40; Marshall v. EMI, 8 Yer., 101-3; Eoward et al. v. Union Bank, 7. Hum,, 26.
   WRIGHT, J.,

delivered the opinion of the Court.

Judgment was rendered, upon motion, against James Lashley, a constable of Payette county, and his sureties in office, for the non-return of an execution placed in his hands. He and his sureties have appealed in error to this Court, and ask for a reversal of the judgment.

The first error assigned is, that the notice does not sufficiently state the grounds of the motion — whether for the non-return of the execution, or for collecting and failing to pay over the money.

We think the notice is, in this respect, sufficient. It describes the note placed in the officer’s hands for collection — the date and amount of the judgment rendered upon it, and the execution issued to him in the case; and then states that the execution had not been returned into the office whence it issued, within thirty days from its issuance, nor the money due thereon paid over as the law directs; and that, 'therefore, judgment was demanded against the officer and his securities for the amount of the judgment of the justice of the peace, with legal interest from the rendition thereof, and twelve and a half per cent, interest on the same from the time" it was demanded, by way of damages.

It is said the motion and judgment for the non-return of the execution, differ from the case where the money has been collected and not paid over; the former being for the amount of the execution, and twelve and a half per cent, damages thereon, and the latter for the amount collected, with twelve and a half per cent, per annum interest, from the time demand is made of the officer. If we were to concede this difference to exist, still, we think, the notice was sufficient upon which to base a judgment for the' non-return of the writ. It distinctly states the fact, that the execution had not been returned, and that, for that reason, a judgment would he demanded. The validity of the notice could not be affected by the fact, that it, also, asked for judgment for the non-payment of the money, nor by the fact, that it demanded, as a legal conclusion, more, or less, by way of interest, or damages, than the plaintiff was entitled to. The law fixed the officer’s liability upon the -ease stated, and it was the duty of the Oourt to give judgment for the proper amount. This was done.

The next objection to the judgment is, that the execution, for the non-return of which the motion was made, when produced, appeared to have been issued on the 5th of April, 1856, whereas, the notice describes it as having fyeen issued on the 5th of June, in that year. This variance is said to be fatal. We -do not think so. As we have seen, the notice fully described the note, and the judgment rendered upon it, and the execution, with great particularity, giving the amounts .and dates, with the names of the parties, with the exception, only, that the .5th of June was, by mistake, or clerical omission, substituted for the 5th of April.

It wTas shown that no other execution issued upon the judgment, and that there was no other judgment between the parties to this judgment, in any way, to correspond with it. It is impossible, therefore, that this •officer could have been misled by this notice, or that lie could, for a moment, have hesitated, as to the execution, for the non-return of which he and his sureties were sought to be held liable. It could have applied to no other, for none other existed. If so, the object of the law is attained, as he could have come prepared to make his defence.

The judgment of the Circuit Court will, therefore,, he affirmed.  