Latham v. Brown, 16 Iowa 118

Latham v. Brown

16 Iowa 118 | Iowa | 1864

Lowe, J.

In effect, the record raises but two questions for our determination: First, Whether the sureties on a magistrate’s bond are liable for the conversion of notes before collection placed in the principal’s hands for that purpose; if so, secondly, what should be the measure of damages, when the conversion is shown to have taken place.

In regard to the first question, the evidence in this case very clearly shows that the notes in question were received *120and receipted for by Brown, in his capacity, as justice of the peace, for the purpose of collecting the same; that soon thereafter his office expired, and he ceased to act as a magistrate. In delivering to his successor the books, papers, securities, and other property appertaining to his said office, he failed to pass over, as the law and the covenants of his bond required him to do, these notes. tWhen afterwards a demand was made of him for those securities, he accompanied his refusal with an expletive, intended to add flavor and emphasis to the same, but to repeat which would not be very ornamental to this opinion. Nevertheless, we have no hesitation in declaring, that his failure to deliver over these notes to his successor, or after-wards to the plaintiff on demand, is in law such a conversion of the same, as to render him and his sureties liable on the official bond. It is conceded that the sureties would be liable if their principal had failed to account for money which had gone into his hands, as a collecting magistrate. In principle, the difference between this and a failure to account for choses in action, placed in his hands for collection, in his capacity as justice of the peace, is not readily perceived. It is, in our opinion, as much the policy of the law to guard against the mischief of the one as the other. Certainly the nature of the wrong is the same in both cases, whilst the consequences may be the same to the injured party. With regard to the question of the measure of damages, or whether the judgment of the Court was not excessive, under the circumstances detailed in the evidence, we find that the same was about for the amount of the face of the notes (not reduced to judgments, or collected), in the hands of Brown, when the demand was made; and this is prima facie the measure of damages, where notes, or choses in action have been improperly converted. See Sedg. Meas. Dam., 488; 2 Pars. Cont., 471; 1 Cow., 240; Ingals v. Lord, 2, Rawle, 241; Raming v. Raming. It is *121true that, by these same authorities, it is competent for the defendant, in mitigation of damages, to show the insolvency of the makers of the notes, payment in whole or in part, or any other facts tending directly to reduce their value. And this was done, to some .extent, by the testimony of Brown himself; and if his was all the testimony introduced on trial upon this subject, it would be difficult to say that the judgment was not clearly against the weight of evidence. But the record entirely fails to show that this was all the evidence offered on this branch of the defense; and hence it is to be presumed, that there was sufficient to justify the judgment that was rendered; and the same will be

Affirmed.