delivered the opinion of the Court.
The statute of this State, Sec. 121 of Chap. 79, is as follows :
“ If any constable shall fail or neglect to return an execution within ten days after its proper return day, or if the demand, debt or claim be wholly or in part lost, or if any special damage shall arise to any party by reason of the neglect or refusal to act, or the misfeasance or nonfeasance of any constable in the discharge of any official duty, the party aggrieved may have his action in any court of competent jurisdiction against such constable and his sureties, on the official bond of such constable, and shall recover thereon the amount of said execution and costs, with interest from the date of the judgment upon which the original execution issued.”
The only question for the court to pass upon is: Should the trial court have found from the evidence that the constable did not return the execution to court within the time required by the law ?
Upon this question the burden of proof was upon the plaintiff, appellant here.
The execution was issued November 24, 1893.
At the time of the trial of this cause in the County Court this execution was, with the files of the cause in which it was issued, in court with the following return thereon :
“ No property found of the within named defendant to levy on. No part paid or satisfied.
A. H. Gully, Constable.”
There was nothing to show when this return was made, other than what the plaintiff claimed to be evidence that it had not been made May 19, 1894. This claim of the plaintiff was based upon the following transcript:
“ J. A. Gipsen ] vs. ' > J. F. Wilson, j
It is considered by the court that said plaintiff have and recover of the said defendant seventy-five dollars and costs of suit, and judgment ordered and entered therefor. Execution ordered and issued to Constable McCuddy, and returned by him September 9, 1893, no property found and no part satisfied. Alias execution ordered and issued to Constable McCuddy, September 21, 1893, and returned by him indorsed “ No property found and no part satisfied, on the 9th day of September, 1893; November 24, 1893, alias execution ordered and issued to constable. (Plaintiff’s attorney.)
(Last execution not returned to court.) Certificate dated the 19th day of May, 3894. [Seal] John C. Evebett, Justice of the Peace.”
While the statute required the justice to make a written memorandum of all process issued and returned, it did not require that' he make any record or certify or include in a transcript anything concerning a failure to return process; and there is no statute making a certificate or transcript by him evidence of what process has not been returned.
The extra-judicial certificate of the justice, in this regard, was not evidence, more especially, against persons who were not parties to the cause, of the proceedings in which the transcript was made.
The judgment of the County Court is affirmed.