The state, on the relation of Brown, brought an action of debt against Boatright and others on a bond for the payment of money. Plea, that the bond was .conditioned for the performance, by Boatright, of his duties as constable, and that he had performed them. Replication, assigning the following breaches: 1. That Brown, on, &c., recovered a judgment against Stipp, before a justice of, the peace, for the sum of 22 dollars and 34 cents with interest and costs; that an execution issued on the judgment directed to any constable, &c., commanding him that of the goods, &c., and of said writ to make legal service and due return; that the writ was delivered to Boatright to be executed, &c.; and that'Boatright neglected and refused to return the writ, &c. 2. That said execution was issued on said judgment, <fcc., and came into the hands of Boatright, &c.; that after-wards, on, &c., Boatright levied the execution on certain goods, &c., subject to the execution; that he afterwards abandoned the levy and gave up the property to Stipp; and that he had not returned the writ, &c. Rejoinder to the first breach, that there was no such execution issued, indorsed, and delivered to Boatright, nor did he neglect or refuse to return the same, in manner and form, &c. Rejoinder to the second breach, that there was no such ‘execution issued, indorsed, and delivered to -Boatright in manner and form, &c.
Demurrer to the first rejoinder for duplicity, becausé it puts in issue, 1st, the issuing, &c., of the execution, and, 2dly, the failure to return'the same. The second rejoinder *9was also demurred to. The demurrers were sustained, and the cause was submitted to the Court without a jury.
H. Brown, for the appellants. W. TV. Wick and L. Barbour, for the appellee.The Court found for the plaintiff, and assessed the damages at 19 dollars. Judgment accordingly.
We think the first rejoinder is bad for the cause assigned. The defendants might have averred that there was no such execution as alleged, or they might have averred that the execution had been duly returned. But they could not make both averments. This case is similar to that of M‘Clintick v. Johnston et al. 1 M'Lean’s Rep. 414. There appears to be no objection to the second rejoinder, and the demurrer to it ought not to have been sustained.
Per Curiam.The judgment is reversed with costs. Cause remanded, &c.