Harrison v. Hance

• Citation: 37 Mo. 185
• Parties: T. C. HARRISON, Plaintiff in Error, v. CROW HANCE, Defendant in Error.
• Decision Date: 31 January 1866
• Court: United States State Supreme Court of Missouri

37 Mo. 185

T. C. HARRISON, Plaintiff in Error,

v.CROW HANCE, Defendant in Error.

Supreme Court of Missouri.

January Term, 1866.

Error to Phelps Circuit Court.

Plaintiff asked the following instructions, to-wit: 1. The court instructs the jury, that a constable is liable on his bond if he fail to make return of execution according to the command thereof, and is also liable if he makes a false return. 2. The court further instructs the jury that if they believe from the evidence that at any time while defendant had the execution in controversy, Thomas Ray had property amounting to $150.00 in value, or upwards, they will find for the plaintiff the amount of his demand, with interest. 3. That any material allegation in the petition not specifically controverted by defendant's answer is taken in law as confessed, and evidence to disprove an allegation is irrelevant, incompetent, and should be disregarded by the jury. Which said instructions were by the court refused, to which ruling plaintiff excepted.

The court on its motion gave the following instructions, to-wit: 1. The court instructs the jury that if they believe from the evidence that Thomas Ray was the owner of property to an amount exceeding one hundred and fifty dollars, at the time Crow Hance, as constable, received the execution against him, they will find for the plaintiff to the amount of such excess. 2. Unless the jury believe from the evidence that said Thomas Ray owned property to the value of one hundred and fifty dollars, they should find the issues for the defendant. To the giving of which plaintiff objected and excepted.

Defendant's attorney, by permission of the court, read as instructions the twelfth section to the end of the second sub-division thereof, and the whole of the thirteenth section under the head of General Executions, (R. C. 1855,) and permitted the jury to carry out with them the said law book when the jury retired to consider of their verdict; to which the plaintiff objected.

Ewing & Smith, for plaintiff in error.

E. B. Ewing, for defendant in error.

WAGNER, Judge, delivered the opinion of the court.

This was a suit on a constable's bond. The petition, among other things, averred that Harrison obtained a judgment before a justice of the peace against one Ray, and that execution issued thereon, which was placed in the hands of Hance, as constable, and that he refused and neglected to levy the same upon the property of Ray, and that Ray had sufficient personal property out of which to satisfy the said execution.

The answer denied that Ray had sufficient property whereon to levy the execution and make the money to satisfy the same. Evidence was introduced by the plaintiff tending to show that, at the time the execution was delivered to Hance, Ray was possessor of personal property of the value of more than one hundred and fifty dollars. At the conclusion of the testimony, plaintiff asked three several instructions, which the court refused to give. In our opinion, the court committed no error in its refusal to give the instructions prayed for. The first asserts a mere abstract proposition of law, and refers it to the jury; the second instruction is in direct conflict with the law regulating executions, and which exempts from levy and sale property to the amount of one hundred and fifty dollars, when owned by the head of a family, and only makes the excess...