"FINDINGS
OF FACT.
"Prior
and up to December 4,1877, one William Hall Mitchell was
engaged in the business of retailing drugs, and so forth, at
Larned, Kansas, and was largely in debt and wholly insolvent.
On the 18th day of October, 1887, Stiefel & Ney recovered
a judgment against Mitchell for $ 56, and costs of suit. On
December 4, 1877, John A. Moore commenced a civil action in
attachment against Mitchell for $ 105, before F. A. A. Neals
a justice of the peace of Larned township, Pawnee county
Kansas, and at the same time Weaver & Bill, plaintiffs
herein, commenced two actions before the same justice of the
peace, one for $ 235, and one for $ 205, and caused orders of
attachment in said actions to be issued; all of said
attachments in said three suits were placed in the hands of
L. P. Elliott, a constable of Larned township, in said county
and state, and were by said constable each and all levied
upon the stock of drugs and medicines of Mitchell. Said John
A. Moore and Weaver & Bill at said time were each and all
nonresidents of Pawnee county, Kansas, and were each and all
residents of Lyon county, Kansas, and each and all of them
failed to give a cost bond in said cases, except the bonds
given for attachments, until December 8, 1877, at which time
they filed a cost bond in each of said cases; each and all of
said attachments so issued were levied upon said stock of
drugs and medicines on December 4, 1877; each of said cases
was set for trial, and said attachments made returnable on
December 7, 1877, at which time Mitchell appeared before said
justice of the peace, and filed an affidavit in due form
under section --, chapter 81, Compiled Laws of Kansas, for a
change of venue, which application was by said justice of the
peace overruled; said causes were continued for trial until
December 8, 1877, at 10 A. M., at which time the same were on
the application of Mitchell continued for trial until January
10, 1878. On January 8, 1878, said Bill, one of plaintiffs
paid Mitchell about $ 25 to confess judgment in all said
cases for the amounts claimed therein, and waive all errors
and irregularities in said suits, which Mitchell did in
writing, having consented before said justice that the
continuance should be set aside and each of said cases called
for trial. Mitchell had no defense to the merits of either of
said causes of action, and was justly indebted to Weaver
& Bill and J. A. Moore the several amounts for which he
confessed judgment, and the said Bill paid said amount to
save the expenses the parties would necessarily be at if the
suits were tried. On the 8th day of December, 1877, Mitchell,
with George A. Eddy, Jerry Toles, T. H. Edwards, and Nelson
Adams, as sureties, entered into a forthcoming bond to John
A. Moore and Weaver & Bill in the sum of $ 2,400,
conditioned that the property so attached in said actions, or
the sum of $ 1,100, its appraised value thereof, should be
forthcoming to answer the judgments in said actions, which
bond was taken and approved by L. P. Elliott, constable, on
December 8, 1877, a true copy of which bond is attached to
the petition herein; and the constable made the following
return on each of said orders of attachment:
"'Surrendered
the property attached in this case on the execution and
delivery to me of bond, a copy of which is herein attached,
and marked 'Exhibit A,' February 8, 1878.--L. P.
ELLIOTT, Constable.'
"'Which
said bond was taken and approved by said constable on
December 8, 1878.--L. P. ELLIOTT, Constable.'
"Said
bond was procured to be issued by George A. Eddy, in order
that the execution issued in his favor, as hereinafter set
forth, might be levied upon said attached property, and that
while the bond purported to be made by Mitchell as principal
and the others as sureties, it was as a matter of fact
procured and executed by George A. Eddy for the purpose
aforesaid, of which the plaintiff at the time had no
information or knowledge; on December 4, 1877, an execution
was issued upon the judgment of Stiefel & Ney to the said
Elliott; on December 4, 1877, George A. Eddy commenced before
a justice of the peace at Larned three actions against
William Hall Mitchell, one to recover the sum of $ 81, one to
recover the sum of $ 219.50, and one to recover the sum of $
88.50; and on the same day Gillett & Co. commenced an
action against Mitchell for the sum of $ 163, and Gillett,
Armstrong & Kelly commenced an action against Mitchell
for the sum of $ 155, and Myers & Myers commenced an
action against Mitchell for the sum of $ 165; and also on the
same day Adam Brewer commenced an action for $ 77.50; and
also on the same day J. A. Blackman commenced an action
against Mitchell for the sum of $ 84.52. In each of said
actions an order of attachment was issued and delivered to
the constable, Elliott, who levied each of them upon a stock
of goods, wares and merchandise belonging to Mitchell, then
and at that time in his possession under the levies made upon
the orders of attachment issued in the cases of Weaver &
Bill and John A. Moore against Mitchell; and all orders of
attachment received by constable Elliott, other than those in
favor of Weaver & Bill and John A. Moore, were levied
upon such property subsequent to and subject to the orders of
attachment levied thereon in favor of Weaver & Bill and
John A. Moore; all of the orders of attachment above referred
to, other than those in favor of Weaver & Bill and John
A. Moore, were returnable and were returned on December 8,
1877, at which time each of the actions in which they were
issued was set for trial, and said orders of attachment were
then released and discharged. On the eighth day of December,
1877, judgments were rendered in each of the actions
commenced against Mitchell as herein stated for the amounts
claimed and costs, except in the two actions commenced by
Weaver & Bill and in the action commenced by John A.
Moore; and upon said day an ordinary execution was issued
upon each judgment so rendered, and placed in the hands of
constable Elliott, prior to the delivering to him the
forthcoming bond. After the execution and delivery and
approval of the forthcoming bonds and the return made by the
constable upon the orders of attachment in favor of Weaver
& Bill and John A. Moore as aforesaid, William Hall
Mitchell demanded of constable Elliott the delivery to him of
the property which had been attached and for the delivery of
which the forthcoming bond had been executed, which demand
the constable Elliott, at the instance and request of the
defendants Nelson Adams and George A. Eddy, refused and
failed to comply with, and he, the constable Elliott, at the
special instance and request of the defendants Nelson Adams
and George A. Eddy, as soon as he had approved the
forthcoming bond and made return on said orders of attachment
in favor of Weaver & Bill and John A. Moore, levied upon
the property of Mitchell which he had taken under the orders
of attachments last named, and to release which said
forthcoming bond had been given, an execution in favor of
George A. Eddy for the sum of $ 90, and also levied thereon,
subject to such first levy, an execution in favor of George
A. Eddy, for the sum of $ 91, and also levied thereon,
subject to said two first executions, another execution in
favor of the said George A. Eddy, for the sum of $ 225, and
also levied thereon, subject to said three other executions,
an execution in favor of Gillett & Co., for the sum of $
175, and also levied thereon, subject to said four
executions, an execution in favor of Armstrong & Kelly
for the sum of $ 165, and also levied thereon, subject to the
levies of said five executions mentioned, all other
executions in his hands, amounting to about the sum of $ 327.
"The
levies of said executions were made in the order stated
about one-half hour after the execution of said forthcoming
bond and after the return of said orders of attachment in
favor of Weaver & Bill; afterward, and on the 23d and
24th days of December, 1877, at the special instance and
request of the defendants George A. Eddy and Nelson Adams,
the constable Elliott, having duly advertised the same, sold
at public auction the goods so advertised for the sum of ten
hundred and fifty dollars, on the executions so levied
thereon as aforesaid, in the order in which they were levied
as aforesaid, and applied the proceeds at the special
instance and request of the defendants George A. Eddy and
Nelson Adams, as follows, to wit: He, the said constable
Elliott, paid of said proceeds to the defendant George A.
Eddy seven hundred and eight dollars on the claim that he,
the said George A. Eddy, claimed to represent, to wit, three
claims of his own, and the claim of Gillett & Co., and
the claim of Gillett, Armstrong & Kelly; and he paid to
the said Nelson Adams on the claims of Myers & Myers,
Adam Brewer and J. A. Blackman, one hundred and fifty
dollars, and the balance he kept for his own fees and the
fees of the justice of the peace; the defendant George A.
Eddy was present at said sale and assisted the constable as
his clerk, and received the money when paid in at said sale.
Nelson Adams paid of the proceeds received by him all he
received except forty dollars, to the parties for whom he
received it. Eddy, Toles, Edwards and Adams signed said
forthcoming bond under the belief that the attachments of
Weaver & Bill and John A. Moore were void on account of...
