32 Mo. 387 | Mo. | 1862
delivered the opinion of the court.
This was an'action brought by Beazley, in the name of the State, against Blundin and his securities on his official bond as constable of a township in Saline county. Blundin, as constable, had in his hands an execution issued by a justice of the peace against one Snyder. At the time Blundin received the execution, Snyder owned and was in possession of a horse, which, in a day or two afterwards, he swapped to Beazley for Beazley’s mule. The next day, Beazley, learning there were executions in the hands of the constable against Snyder, went to Snyder to effect a rescission of the contract of the previous day; but, in the mean time, Snyder had parted with the mule in exchange for the horse of one Aikman, and thereupon Beazley exchanged with Snyder the horse he had got from the latter in the first instance for the horse which Snyder had got from Aikman. Afterwards, and while the execution was still in force, Blundin levied the same on the horse in the hands of Beazley which he last received from Snyder, and sold the same under the execution. To recover damages for levying upon and selling said horse, this suit was brought. The plaintiff recovered judgment in the Circuit Court, which the defendants are seeking to re
The court instructed the jury to the effect that the horse was not subject to the execution, and refused those of the defendants taking the opposite ground. We think the property was subject to the lien of the execution, and was properly seized and sold.
“ The officer receiving such execution shall endorse thereon the time of the receipt of the same; and the execution, from the time of the delivery to the constable, shall be a lion on the slaves, goods, chattels, and shares in stocks of the defendant, found within the limits within which the constable, or other public officer, can execute the process.” (R. C. 1855, p. 964, § 5; Brown v. Burrus, 8 Mo. 26; Orchard v. Williamson, 6 J. J. Marshall, 558.)
The court erred in the matter of the instructions, and its judgment is therefore reversed;
