
    Davis vs. Bryan.
    Where a levy and sale is made of property exempted from execution, fay the act of 1820, the officer is liable, although the execution had not ehdorsed upon it the time when the contract, (upon which the judgment was founded,) was made.
    Where the magistrate who issued an execution afterw ards resigned and his papers were returned to the clerk’s pffiee according to the act of assembly; Held, that a certified transcript by the clerk was not necessary, unless it had been shown that the execution had been returned to the justice who issued it.
    This suit was commenced before two magistrates. The defendant was a constable, and sold a cow belonging to plaintiff under executions founded upon judgments rendered against the plaintiff by justices of the peace. The cow sold was the only one owned by the plaintiff. The executions under which she was sold bad not endorsed upon them the time when the contract was made.
    Upon the trial it was proved that one of the justices, who issued one of the executions, had resignéd¡and his papers were returned to the clerk of the county court. There was no proof that the execution had ever been returned. The issuance of the execution was proved by the person who issued it, but the proof was excepted to. Judgment was rendered in favor of the plaintiff.
    «á. Lane, for plaintiff in error.
    Suit was commenced by Davis before two justices, who rendered a judgment in damages in his favor for seven dollars. Bryan appealed to the county court where a verdict and judgment Were had against Davis. .From this judgment, Davis removed the cause by appeal to the circuit court and obtained a judgment; and Bryan prosecuted a writ of error to this court. The bill of exceptions, among other things, shows, that two small executions issuing from justices of the peace in December, 1832, and February, 1833, one in favor of James Young, the other of Thomas R. Bryan against Davis, were placed in the hands of Bryan, who was a constable, for collection. Bryan levied the executions upon a cow, the property of Davis, which he sold. Davis alleges, that the cow was the only one he owned, and being such, was protected from execution, and insists that he is entitled to a recovery from Bryan to the extent of her value. The court charged the jury “that the plaintiff was entitled to recover the value of the cow, if she was his only one;6if the deiendant took her, whether the justice made any endorsement on the execution as to the date of the contract or not.”
    Plaintiff in error insists, that it is the duty of the justice issuing an execution on a judgment founded on a contract entered into since the year 1820, to endorse thereon the date of the contract. Where he fails to do this, the presumption is that the contract was prior thereto, and it is the duty of the officer to satisfy his execution out oí any or all the defendants property, and in the event, articles of property exempted by law be sold, the justice, for such omission of duty, and not the officer, is the responsible person, and the one to whom the defendant in the execution must look for reparation for any injury he may thereby sustain. See act of 1820, ch. 11, sec. 1: Haywood and Cobbs, 94.
    
      S. Turney and Marchbanks, for defendant in error,
    cited and relied upon the act of 1820, ch. 11, sec. 1.
   Peck, J.

delivered the opinion of the court.

This was a complaint brought by warrant before two justices of the peace for selling a cow of the plaintiff. The defendant below justified under an execution which came into his hands as a constable, but is met in his de-> fence by the plea of the plaintiff, that, being the only one he owned, she was exempt by the act of 1820, ch. 11, from'levy and sale. Thequestion debated and forthis court to decide on, is: 1st. Whether, inasmuch as the execution had not endorsed upon it, as the act requires, the time when the contract was made, the constable was not justified. The act is directory, and though the justice ought to have made the endorsement, still the plaintiff should not lose his right by the act of one over whom he had no control. The constable, it is presumed, was put upon his inquiry and warned of the plaintiff’s right in the exemption of this article of property, and then proceeded at his peril. 2d. The original executions were produced in evidence and proved by the justices issuing them. One of the justices had resigned and his papers (one of the executions excepted to,) had been returned into the clerk’s office according to the directions of the act of assembly. It was insisted that the execution, which properly belonged to the clerk’s office, should have accompanied a transcript and have been certified by the clerk, but there was no evidence that the execution had ever been returned by the constable. The evidence was well received.

Judgment affirmed.  