¶1*43The opinion of the court was delivered by
¶2The defendant, in his plea in abatement, claims, that the writ and declaration ought to be abated ; because he says, 1 that H. Ferris, by whom the writ was served, £ was not at the time of service a person duly authorized and ‘ qualified by law to sferve the same.’ The piea does not make the return of the officer a part of it by reference to it, or otherwise; and there is no averment that Ferris served the writ as high bailiff. If it had been so alleged, the plea should have gone still further and have negated the fact that the sheriff of the county could have served it. The highest degree of certainty is required in framing pleas of this description, and the pleader must anticipate what in other pleadings should come from the other side by way of replication. No fact is alleged showing that Ferris might not have served this writ. The saying ‘ that he was not duly authorized and £ qualified by law to serve it,’ is of no effect; it is but the opinion of the pleader upon a conclusion of law. In the precedent from Story, whence this plea is said, in the argument, to have been taken, it is expressly alleged that the person serving the writ was not at that time a deputy Coroner. The plea is clearly bad, and was properly overruled in the county court.
¶3The execution against Rood, it seems, was directed to the high bailiff and by him returned non est inventus. As. the defendant is sued for his neglect to take bail, it might well be inquired why it should be necessary for the creditor even to take out an execution, in a case where the facts’ show that it could be of no possible avail. But it has been done, and it is not for this defendant, who is a stranger to the process, to object that it was irregularly and improperly directed to, and executed-by the high bailiff. If however the question were open, I think the facts show that the direction was proper.
¶4It appears, prima facie, that the creditor lostihis whole debt through the neglect of the defendant, and as there is no showing to the contrary by any evidence, tending to prove the insolvency of the debtor, the rule of damages adopted by the county court was clearly correct.
¶5Judgment affirmed.