This was an action against the deft. as surety in a constable's bond for the negligence of the constable. The plff. had obtained a judgment *Page 127 against J. F. Clement for $50, and he issued an execution on the 9th October 1829, and delivered it to J. C. Allen constable, who neglected to levy it until the 3rd of November. On the 2nd Nov. an execution issued against Clement at the suit of John Gordon which took all his property, and Jewell lost his debt.
The only question was, whether the constable had used due diligence in levying this execution.
The Court charged the jury,
That it was the duty of the constable to levy on execution process placed in his hands as speedily as he reasonably can do so: and if from his neglect the debt is lost, he and he sureties are liable. What would constitute reasonable diligence must depend on the circumstances of each case. That the jury must apply the proof to this rule, and say if the constable in this case did "well and diligently" execute this process.
The jury found a verdict for the defendant; but the court, without hesitation, set it aside and granted a new trial.