OPINION of the Court.

The plaintiff in this cause, makes his demand upon a bond in the penalty of 9 dollars cents, conditioned that if the said John D. Fanshor, shall deliver himself up to the said Thomas B. Stout, constable, &c. (on a certain day therein expressed) then the bond to be void ; and alleges that the said Fanshor, did not deliver himself up, &c.; stating also, that this bond was the amount of a certain execution which he had against the said Fanshor.

The command of these executions from the justice’s courts, is to levy the debt and costs of the goods of the defendant, if goods are to be found, and if not, to take his body, &c. Now upon neither of these can the constable take bond. If goods are found sufficient to satisfy the debt, the constable is bound to take them, if not, and the body be once in his power or custody, he cannot discharge him on such a bond. The bond is void.

Therefore judgment, I think must be reversed.