20 Ind. 169 | Ind. | 1863
This is an action by the State, on the relation of Holmes McFatridge, against Butler, as constable, and Collins, as his surety, on his official bond. The bond is dated April 10th, 1858, is in the penalty of 1000 dollars, and is conditioned thus:
“ Whereas, George Butler has been, by the voters of Posey township, Rush■ county, elected constable, to serve as such from the 5th of April, 1858, for the term of one year, and until his successor shall be elected and qualified. Now if the said George Butler shall faithfully discharge the duties of his office, &c., then this bond shall be void,” &c. The complaint alleges that Butler was re-elected constable of said township on the first Monday of April, 1859, .but failed to qualify as such constable, by giving another bond and taking the oath prescribed by law; but continued to act as such constable under the bond and condition aforesaid to the present time. There are three breaches assigned. The first avers that on November 16th, 1859, Butler, then acting as constable, under the aforesaid bond and condition, had in his hands an execution, issued by one Willis Collins, a justice of the peace, upon a judgment in favor of one William Johnson and against said relator, for 97 dollars; and that on the day last aforesaid, the relator delivered to said constable, to hold as a pledge for the payment of the execution, a note of hand on one Cyrus Ball for 621 dollars, payable to the relator on the 25th of Decem
As no exception appears to have been taken to the admission of testimony, the second assigned cause is not available. The evidence is upon the record. Having examined it carefully, we are of opinion that it proves substantially the facts alleged in the complaint. Hence we are at once led to inquire whether the facts thus alleged and proved entitle the plaintiff to recover ?
The appellants contend that in view of the case made by the plaintiff' tbe relator is not injured; that tbe levy upon the note, having been made without bis consent, was illegal and void, and tbe sale of it transferred no title to tbe purchaser. His rights were not in any degree affected, because, notwithstanding tbe sale, be still bad bis right of action against tbe maker of tbe note. Tbe answer to this is, that tbe note belonged to tbe relator, was as a pledge delivered to tbe constable, who under color of office, and in virtue of an execution then in bis bands, levied upon and sold it, though it was not leviable property. In doing this, though tbe property was possessed by him as a pledge, be acted officially, and was plainly guilty of a misfeasance in office, for which be was liable on bis official bond. And having-thus sold tbe property, under an execution, it is not for him or bis surety to say that that sale conferred no title on bis vendee. It is true that Butler, in receiving tbe pledge of tbe note, was not acting within tbe scope of bis official duties, and bad be, in any way, converted it to bis own use, bis liability would have been merely personal; but in levying on and selling tbe property, be acted as constable, and that being tbe case, tbe purpose for which it was placed in bis possession was not material.
Again, tbe condition of tbe bond in suit, recites that on
The defendants, upon the trial, gave in evidence the execution, by virtue of which the note was levied on and sold, and also the constable’s return thereon, which return is as follows: “ December 2d, 1854, satisfied in full by the sale of a promissory note, given up by the defendant, on Cyrus Ball, to satisfy the within execution, and was sold to 'John Spencer for 420 dollars.” In argument it is said that this return is conclusive that the note was given up by the relator to satisfy the execution. We do not so understand the law. A return to an execution is always conclusive against the officer who makes it, but as a general rule it is, as to other cases,
Other questions are raised in the appellants brief; but they involve points which do not appear to have been presented in any form, to the consideration of the Court below, and will not therefore, be noticed in this Court. The finding is, in our opinion, right on the evidence, and , the judgment must be affirmed.
The judgment is affirmed, with costs, and 3 per cent, damages.