Bohon v. State ex rel. Vance

Indiana Supreme Court

Bohon v. State ex rel. Vance

5 Blackf. 467, 1841 Ind. LEXIS 1

DecidedJanuary 4, 1841

StatusPublished

This text of 5 Blackf. 467 (Bohon v. State ex rel. Vance) is published on Counsel Stack Legal Research, covering Indiana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bohon v. State ex rel. Vance, 5 Blackf. 467, 1841 Ind. LEXIS 1 (Ind. 1841).

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Opinion

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 [468]*468“ 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

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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 [468]*468“ 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

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Bluebook (online)

5 Blackf. 467, 1841 Ind. LEXIS 1, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bohon-v-state-ex-rel-vance-ind-1841.