Isbell et al. vs. Epps et al. civil process throughout the county. But these cases are exceptional in their nature, and while acting officially out of the township in which they were elected, are virtually, under our statutes, but constables of the township in which for the time being they are acting. The general tenor of our statutes creating the office of justices of the peace and constables, and defining their jurisdiction, clearly demonstrates the fact that they are but township officers, and any lien created by judg ments rendered or executions issued by justices of the peace, cannot be held to extend beyond the limits of the township in which they were rendered or issued. This view is aided by the fact that sec. 152, ch. 99 of Gould's Dig., requires the justice, when the defendant resides out of the township where the judgment was rendered, or that he has not sufficient goods and chattels therein to satisfy such judgment, the justice shall issue the execution to the constable of the township, where the defendant or his goods and chattels may be. In the examination of questions as presented by the declarations of law made by the court below, we have been unable to find but two authorities in point; one in New York (Wylie v. Hyde, 13 J. R.), the other in Missouri (Brown v. Burns, 8 Mo.). In the New York case, Judge YATES says: "The time of making the levy only can control the right to the property, and that alone can create the lien; it then, and not before, is properly in custody of the law." Justice SCOTT, in the Missouri case says, in commenting on the Wylie v. Hyde case: "The court did not deny the existence of the lien prior to the levy, on general principles, but inferred its nonexistence from its incompatibility with other statutory provisions." We have been unable to find what the statute of New York says directly as to the commencement of the lien. Justice SCOTT further says: "The extent of the jurisdiction of justice's courts would disincline us to the opinion that the legislature intended Isbell et al. vs. Epps et al. taking away the lien of the execution. Why should the suitors of some courts have so great an advantage over others? The practical construction of the law has been, that the lien existed from the delivery of the writ to the constable." The statute of Missouri on executions is similar to our own, and while the time is not fixed by statute for the beginning of the execution lien in the hands of a constable, the decision in the above case has declared the law of Missouri to be, that an execution lien issued on a judgment rendered in a justice's court begins when the execution is placed in the hands of the constable, and extends to the goods and chattels of the defendant in the execution within the limits of the township to which it was directed. We have very few, if any, decisions as to what the common law in this country is, because the subject is, in most of the states, regulated by express statute. Thus, in New York, the statute of the 29 Charles is reenacted expressly. Ray v. Burdridge, 15 Denio, 624; 12 Johns., 403. So in Indiana, 7 Blackf., 501; 4 id., 496; 4 Ind., 255. So in Illinois, 13 Ill., 20; 22 id., 93. So in Kentucky, 1 Litt. St., 540; 4 Bibb., 31; 2 J. J. Marsh., 421. So in Florida, 4 Fla., 126; and Maryland, 3 Md., 99; and Alabama, 12 Ala., 71; id 247; 18 id., 387. In Missouri, as between two officers, the first levy holds, though the writ was delivered last. 9 Mo., 492. In California, Ohio and Iowa, by statutes, the lien is from levy only. In North Carolina, where the common law as a body is adopted, the lien is from the teste. 8 Ired., 63, and cases supra. And Tennessee follows North Carolina. 9 Humph., 91; 1 New Hampshire, he whose execution was in the hands of the officer first, was entitled to the proceeds. 6 N. H., 70. In New Jersey, the priority according to circumstances is regulated by statute. In Connecticut, no title to lands is acquired until levy and record of levy made in clerk's office. 5 Day, Swan, 304. In Isbell et al. vs. Epps et al. 160; 8 Conn., 538. In Georgia, the statute creating the lien is that the property of the defendant is bound from the signing of the first judgment. 26 Ga., 287. In Wisconsin, a sheriff, having two executions in his hands against the same party, is bound to levy and satisfy them according to seniority in his hands. 18 Wis., 406. All of the above decisions relate to executions in the hands of the sheriff, and issued from a court of record, and only by analogy would be applicable to constables with executions in their hands from justices of the peace courts. We are then left to conclude that a justice of the peace execution in the hands of a constable is a lien from its teste as at common law or only from delivery to the officer. We do not feel bound to adopt the unreasonable and unjust rule of the ancient common law-so unjust, indeed, that it had to be remedied by statute, and in fact we think it would be more in accord with the policy of our laws, and would harmonize with decisions on kindred subjects, were we to hold that the lien did not begin until actual levy. The whole current of judicial decisions has been most wisely against secret constructive liens, especially when these are set up against purchasers. Yet we are unable so to declare the law as it was in Gould's Digest, and under which the decision is rendered, as this cause of action accrued before the adoption of the code; but we are of opinion that the execution was a lien on all goods and chattels of the defendant in the execution, within the limits of the township to which the execution was directed from the time of its delivery to the constable. Judgment reversed, and the cause remanded for a new trial. Coffee vs. Gates & Bro. COFFEE VS. GATES & BRo. PRACTICE: Service of summons by unofficial person, etc. Under section 65, Code of Practice, an unofficial person may be authorized to serve process; but, to make such service binding, the correctness of the return must be verified by the oath of the party making the same. The mere recital, in the formal part of a judg ment or decree, that the defendant was legally served with notice, is not a necessary part thereof; the record made by the official indorsement of return upon the writ is the proper evidence of due service, and, when it appears from such return that no sufficient service has been had, the court acquires no jurisdiction of the person of the defendant. APPEAL from Prairie Circuit Court. Hon. JOHN WHYTOCK, Circuit Judge. A. H. Garland, for appellees. GREGG, J. On the 29th of February, 1872, the appellees filed their complaint in equity to enforce a trust deed upon certain personal property, alleging the indebtedness of the appellant; the due execution of the trust deed; the lapse of time, and the failure to pay; and that the trustee had refused to execute the trust, etc. At the return term, the record states that the complainants came by attorney and the defendant came not, but made default, and the cause came on for hearing, upon the bill and exhibits on file, etc. And it further appearing that said defendant has been legally served with notice of the pendency of this action, but has wholly failed to appear and answer, and the court being well advised what judgment to render, etc., decreeing against appellant. After which, the appellant appeared and filed his motion to set aside the decree by default, as he alleged, because the plaintiffs did not show a cause Coffee vs. Gates & Bro. of action; second, that the decree was not according to law; and, third, that the court had no jurisdiction of the cause or of the person of the defendant, and that he was not properly before the court. It appears from the return upon the summons, that McClintock, the sheriff of the county, by written indorsement, authorized Kirby F. Penfield to execute the writ. Then follows a formal indorsement of an ordinary return, signed II. F. Penfield, but not verified by affidavit or otherwise authenticated. Section sixty-five, of the Code of Practice, provides that a summons may be served "by any person appointed by the officer to whom the same is directed, by an indorsement on the summons, whose affidavit indorsed thereon shall be proof of the time and manner of the service." This law is a departure from the former practice acts, wherein it confers upon the sheriff authority to cause an unofficial citizen to execute process of the court, and it cannot be presumed that the legislature ever intended that the service of a summons should be binding if the party who made such service was bound by neither oath nor bond for the correctness of his return. McMillan and Wife v. Reynolds, 11 Cal., 378; 6 How. (Miss.), 664; 1 S. & M., 595; 1 Scam. (Ill.), 127. The formal part of the decree, as entered up by the clerk, recites that the defendant was legally served with notice, etc., but a recital of service was not a necessary part of the decree ; the record made by the official indorsement of return upon the writ was the proper evidence of due service, and where it appears from such return, as in this case, that no sufficient service has been had, the court does not acquire jurisdiction of the person of the defendant. If counsel had directed the attention of the court to this fact, the return could have been |