Bohon and Others v. The State, on the Relation of Vance and Another

Bohon and Others v. The State, on the Relation of Vance and Another. In a suit by the state, on the relation of Samuel D. Vance and David Clarice, trading under the name of Vance and Clarice, on a constable’s bond, the declaration alleged that the relators, by the name of Vance and Clarke, recovered judgment, &c.; that an' execution issued on the judgment in said name, &e., which execution the constable failed to return, &e. Plea, nul tiel record. Held, that said judgment and execution were admissible evidence for the plaintiff. The declaration in this suit also alleged, that the constable had returned the execution indorsed “returned by Samuel D. Vance's order,” and that the return was false. Held, that under a plea that the return was not false, &e., the said return, which was admissible evidence for the defendants, with proof that it was made by the direction, &c., would excuse the constable for not executing the writ. Monday, January 4, 1841. ERROR to the Montgomery Circuit Court. This suit was brought by the state of Indiana, on the relation of Samuel D. Vance and David Clarice, trading under the name and style of Vance and Clarice, against the plaintiffs in error. [MAJORITY — Sullivan, J. Per Curiam.] Sullivan, J. Debt on a constable’s bond. In the declaration two breaches were assigned; 1. That Samuel D. Vance and David Clarice, by the name of “ Vance and Clarice,” on, &c., obtained a judgment before F. B. Pullum, a justice of the peace of Montgomery county, against A. Stewart for the sum of 29 dollars and 87 cents; that afterwards an execution was issued on said judgment, in the name of “ Vance and Clarice,” against the goods and chattels of Stewart directed to said Bohon as constable, &c.; that it was duly delivered to him, and that he failed to return it; 2. The second breach recited a judgment and execution as in the first, and alleged that Bohon returned the execution indorsed “ returned by Samuel D. Vance's order,” which the plaintiff averred was a false return. The defendants pleaded, 1st, nul tiel record; 2dly, to the first breach, ihat Bohon did return said execution; 3dly, to the second breach, that the return made by said Bohon was not false, but that it was made by order of said Vance. Issues on the pleas. Verdict and judgment for the plaintiff. The plaintiffs in error contend, that the Circuit Court erred in permitting the judgment and execution in the name of “ Vance and O/ar/ce” to be read to the jury in proof of the existence of the record denied by the first plea. In this the Court committed no error according to the case of Jones et al. v. Marlin, decided at the last term of this Court. II. S. Lane and S. C. Willson, for the plaintiffs. R. C. Gregory, for the defendant. The defendants then offered to read the constable’s return to the writ, but the plaintiff objected and the Court sustained the objection. This was erroneous. The return indorsed on the writ was not of itself sufficient to answer the purpose intended by the defendants, but connected with proof that it was made by direction of the person having the control of it, it would have been sufficient to excuse the officer for not obeying the command of the writ. It was a link in the chain of the defendants’ proof, and the Court should have permitted them to introduce it . Per Curiam. The judgment is reversed, and the verdict set aside, at the costs of the relators. Cause remanded, &c. Vide Andrew et al. v. Parker, May term, 1843.