¶1The only .-question presented by this record is, whether replevin bail who is compelled by alias execution to pay the judgment, can maintain an action on a constable’s bond for the failure of that officer to levy the original execution issued upon the judgment upon the property of the judgment debtor, such property subject to execution sufficient to satisfy the writ being within his reach.
¶2Though the original execution must issue against the principal debtor and the bail jointly (2 G. & H. 602, sec. 84), the effect of the command of the writ, when issued from the higher courts, is, that the property of the principal be first-exhausted. Id. 236, see. 428. This is not, however, the express form of the writ prescribed by the statute (id. 385), which the justice is to follow (id. 616, sec. 128), and as there is not in the present justice’s act any provision like section 428 of the code, which requires a sheriff to exhaust the property of the principal before resorting to that of the bail, as there was in the previous act of 1848 (R. S. 1843, p. 901), it is argued that there is no such duty incumbent upon a constable; and, consequently, that his failure to do it is not a- breach of the condition of his official bond.
¶3It is difficult to-suppose that the legislature really intended to make one rule for the government of sheriffs and a different one for constables in cases exactly similar. No *393reason can be imagined which’ could have induced a purpose to create such a distinction, and we would only be justified in holding that it exists if we find the law so plainly written that no other conclusion can be reached. But we do not find it so. Section 82 of the justice’s act is as follows : “ Whenever it shall appear from the docket, the justice shall note on the execution whether any of the defendants are sureties; and. if so noted, it shall be the duty of the officer executing the same, first to levy on the goods of the principal; and if enough such goods can be found to satisfy the execution, no levy shall be made on the goods of the surety.” Bail for the stay of execution is a surety of a particular class, and the fact appeared upon the docket and was stated in the body of the execution in .this case. • It seems to us, therefore,.that McCullough v. Druly, 3 Ind. 431, is directly in point against the judgment of the court below.
¶4Reversed, with costs; cause remanded, with directions to overrule the demurrer.