M'Clelland v. Hubbard

2 Blackf. 361, 1830 Ind. LEXIS 33

• Court: Indiana Supreme Court
• Decided: November 30, 1830
• Status: Published

Opinion

Blackford, J.

Trespass on the case by Hubbard against McClelland. The declaration contains two counts in trover for certain writings obligatory and promissory notes. There is also a count in case against the defendant as a bailee, for a breach of duty relative to certain instruments of writing. The defendant pleaded not guilty. The evidence in the cause was as follows: The plaintiff deposited with the defendant a note, and took from him the following receipt: “Received of jYoak Hubbard one note on James Suit, calling for 80 dollars, for which I will account to the said Hubbard, when collected. June 20th, 1828.—John McClelland,(seal).” The plaintiffmade a demand on the defendant for this note before the commencement of the suit. The clerk of the Circuit Court-issued a fee-bill against the plaintiff and his sureties, on an appeal-bond, for costs,in the case of William Digby, appellee, v. Noah Hubbard, appellant, and Reuben Kelsey and John M Clelland, his sureties. The sheriff, by virtue of the fee-bill, demanded property of the defendant, M Clelland, one of the surctiesinthe appeal-bond. It wasproposed to the defendant to give up the note mentioned in the receipt, which he refused, hut asked of the sheriff time to consult on the subject. On the same day, the defendant handed over the note to the sheriff to he executed and sold on the fee-bill. Afterwards, and before the sale, the defendant gave notice to the plaintiff of these facts. A few days before the sale of the note, the plaintiff called on the defendant, and expressed a wish that the fee-hill might he paid off. He said that he preferred that Digby, the plaintiff in the fee-hill, should be made liable, and that he did not wish the defendant to suffer. He said also that the fee-bill was illegal, and that he would take some of the parties into chancery. There was proof of some other conversation of the plaintiff as to his request to Cox to pay off the fee-bill, rather than to have any more trouble. The note was sold at sheriff’s sale to Kelsey, the highest bidder, for 14 dollars and 50 cents, and' the money was paid by the sheriff into the clerk’s office. The case upon this evidence was submitted to the Circuit Court. The judgment is in favour of the plaintiff in that Court for the sum of 80 dollars in damages, together with costs. A motion was made for a new trial by the defendant below, which motion the Court overruled.

Fletcher and Merrill, for the plaintiff. White, for the defendant.

It is unnecessary to examine whether, in this case, there was such a conversion of the note to the defendant’s use, as would subject him to an action of trover. The case is clear on the count charging the defendant as a bailee. The note was not liable to execution. Bingham on Judgments, 111

(1). The note was deposited by the plaintiff with the defendant, for collection. The latter, in giving it up to the sheriff, committed a breach of his duty; and he is liable to an action on the case for his misconduct.

The motion for a new trial was correctly overruled. The judgment must he affirmed.

Per Curiam.

The judgment is affirmed, with 1 per cent, damages and costs.

By tho writ of fieri facias, authority is given for the seizure and sale of every thing that is a chattel, belonging to the defendant, except his necessary wearing apparel. Even of two gowns one may be taken. Leases or terms for years, confgrowing, and such «íructus industriales” as would go to the executor, fixtures which were erected and may be removed by the tenant, an annuity granted by the king for years, money in defendant’s possession, are liable to execution under this writ; but not apples on trees, those fixtures, furnaces, &c. which belong to the heir, and may not be removed by the tenant, bank notes, money in the sheriff’s hands, being the surplus of money levied under a former execution against the defendant’s goods, at the suit of the same plaintiff, or damages recovered by the defendant against the sheriff in another action, or money levied under an execution at the suit of the defendant • nor goods pawned, demised for years, distrained, or taken and in custody of tho sheriff, upon a former execution; nor things which cannot be sold, as deeds, writings, &c. But goods pawned may be taken upon satisfaction of the pledge, and goods demised subject to the right of the lessee. Bingh. on Judg. cited in the text.

The above is the English, law. For our statute on the subject, vide R. C. 1831, p. 284.