
    *The State of Ohio, for the use of Joseph V. Smith, v. Russell N. Fuller and others.
    A town marshal, acting as constable, and levying an execution, makes himself liable for the debt, if he leave the property in the possession of the judgment debtor, and it is removed.
    Neither is lie permitted to advertise it for sale, and on the day of sale, by agreement with the debtor, substitute other property.
    This case is reserved from Meigs county, on an agreed statement of facts.
    
      The action is debt upon a bond given by the defendant, Fuller, as principal, and the other defendants as his sureties, conditioned for the diligent and faithful discharge of his, the said Fuller’s, duties as marshal for the town of Pomeroy.
    The declaration avers, in substance, that an execution in due form came into his hands in favor of said Smith, against' one John Sharpnack, etc., and' that he neglected and refused to execute the same within the time prescribed by law.
    A further breach assigned, is, in substance, that, during the life of the execution, he levied it on a boat-bottom, the personal property of the defendant, in execution, of greater value than the debt, which he neglected and refused to sell.
    The third breach is substantially the same, with this variation: that ho permitted said property to be removed out of the county and lost.
    There is a pica of the general issue with notice of special matter, the substance of which may be seen in the agreed state of facts made part of the case.
    “ On August 14, 1843, the bond, in the declaration described, was duly executed by Fuller and his co-defendants. Fuller, at the time of its execution, and thence until the commencement *of this suit, was the acting and duly qualified marshal of the town of Pomeroy, and as such has the rights, and was subject to the liabilities provided by the charter of said town of Pomeroy, and the act regulating incorporated towns. Smith, on July 31, 1843, obtained the judgment mentioned in the declaration, and on • November 8, 1843, caused execution to issue thereon, which came, .into the hands of Fuller for execution. Fuller, on November 8, 1843, levied the execution on a boat-bottom, the property of Sharpnack, lying in the Ohio river, at the bank, in the town of Pomeroy, of sufficient value to pay the judgment, and advertised the same for sale according to law. The boat was never recovered from Sharpnack’s possession by Fuller, and before the day of sale, was removed by the judgment debtor from the jurisdiction of the the marshal, and from the state, and was not present on the day of sale, before which time other property of the said Sharpnaek- was substituted by him- for the boat, of equal value, and sufficient, at two-thirds of the appraised value, to pay the debt and costs, and was accepted and appraised at his request, and offered for sale by the marshal, but did not sell for want of biddors, and remains unsold, for want of bidders, in the hands of Fuller. On the day when the boat was offered for sale, the agent of Smith called on Fuller, and told him that he was prepared to bid on the boat, and was told by Fuller that the boat was removed, and that other property of equal value would be offered for sale instead of the boat; and Smith’s agent went away without attending to the sale.”
    John Welsh, for plaintiff.
    Arius Nye, for defendants.
   Birchard, J.

From the agreed statement, it appears that the marshal neglected his duty, and that each of the three breaches of the bond is well assigned.

*It was his duty to take possession of the property levied upon, to advertise and sell it. It would be dangerous to permit constables and sheriffs to tamper with judgment debtors against whom they have executions, and to release levies by substituting other property between the time of advertising and day of sale. Such a practice would tend to the introduction of gross abuses. This officer, acting as a constable, had no authority to do so — no right to make a levy upon property and leave it in the possession of the judgment debtor, except at his peril. Ho had no right, after advertising it for sale, to substitute other property and offer it for sale under such advertisement. When he took such responsibility upon himself he became liable for the amount due upon the execution. The act passed January 19, 1848 (vol. 41, p. 10), has no bearing'upon the facts contained in the agreed statement. Judgment will be entered against him for the penalty of his bond, and execution be directed to issue for the amount of Smith’s demand against Sharpnack, and for the costs.  