Whether the bond in the case was taken under an attachment issued in lieu of the warrant as formerly allowed against non-residents, (2 R. L. p. 381, § 118,) or under the provisions of the 32d section of 2 R. S. p. 231, as made applicable by the act to abolish imprisonment ; we think it was properly taken in the name of the constable, and that it may be assigned by him to the party for whose benefit the bond was taken. There is nothing in the statute preventing the assignment, and the authority to assign belongs to the general powers and duties which the officer is called upon to exercise and discharge.
It is not necessary that an execution should remain in the hands of the officer sixty days. The return cannot be sooner compelled, but the officer may, of course, at his own risk, return it sooner, if he is prepared to say there is no property. An assignment of a bond is good, though not under seal. Sheriffs’ bonds were always so assigned.
Proof that the attachment was lost, was sufficient to dispense with its production, if such production was necessary.
*416It is too late to object to the amount of the recovery on the original judgment. The remedy was on the appeal upon the original judgment, and not on the trial upon the bond.
The foregoing disposes of all the questions which arise on this appeal, excepting one respecting the validity of the bond. The condition of this bond is not to provide for the appearance of the defendant, or for the forthcoming of the goods to answer the execution, but to provide for the payment of the amount of the judgment rendered in the original action. We can find no authority for taking such a bond. The goods may not have been equal in value to the amount recovered, and yet the obligors under this bond would be held liable to pay the whole judgment without reference to the goods surrendered.
Nor can it be said that this was a voluntary bond. It was taken colore officii, and the debtor was compelled to give it, or have his property taken from him. We have been referred to no provision of any statute authorizing such a bond, and unless so provided for, the objection made to it by the defendant must be sustained.
Judgment reversed.