Henry Churchman v. Ira Stockton.

1. Officer—when not liable for selling property exempt from execidiem. Where an officer levies upon and sells the property of another, by the statute exempt from execution, with the full consent of such party, he, at the time, making no claim of exemption, although fully apprized of his rights, such officer does not subject himself to the penalty prescribed by the statute, of three times the value of the property so levied on and sold.

2. Allegations and proofs. In an action against the officer, the execution was described in the declaration as in favor of John H. Clark, for the use of Joseph A. J. Hostetter and George W. McMillon against Ira Stockton, and the execution offered in evidence was in favor of J. A. J. Hostetter and J. H. Clark, for the use of G. W. McMillan, against Stockton. The variance was fatal.

*411Writ of Error to the Circuit Court of Macon county; the Hon. Charles Emerson, Judge, presiding.

This was an action of trespass, brought by Stockton, against Churchman, an officer, who levied upon and sold the property of Stockton, which was exempt by law, from levy and sale on execution, to recover three times the value of the property so levied on and sold, under sec. 35, chap. 57, B. S. It appears that Stockton consented to the sale, and did not claim exemption. The jury returned a verdict for the plaintiff, and judgment was rendered for damages and costs. The defendant brings the cause to this court, by writ of error, and insists that he is not liable to the statutory penalty, as he sold the property with the consent of the debtor, and asks that the judgment be reversed.

Messrs. Malone & Erwin, for the plaintiff in error.

Mr. F. S. Murpht, for the defendant in error.

Mr. Chief Justice Breese

delivered the opinion of the Ooúrt:

This was an action of trespass, brought in the Macon Circuit Court, by Ira Stockton, against Henry Churchman, to recover three times the value of certain property alleged to have been exempt from execution, and which the defendant, as constable, took from the possession of plaintiff^ against his claim of exemption, at the time of the levy insisted upon.

A verdict passed for the plaintiff, for three times the value of the property taken, and judgment thereon, a motion for a new trial having been overruled.

The declaration contains two counts, in the first of which the execution is described as in favor of John H. Clark, for the use of Joseph A. J. Hostetler and George W. McMillon, against Ira Stockton.

*412The execution offered in evidence and objected to, was in favor of J. A. J. Hostetter and J. H. Clark, for the use of G-. W. McMillon, against Stockton. The variance is so palpable, the execution should not have gone to the jury, and for permitting it to go, the court erred.

The second count does not describe any execution in particular, and the one offered, would probably apply to this count and sustain it.

The point to which we have directed our attention, is to the evidence, and we are satisfied it wholly fails to sustain the verdict. The statute under which the claim is made, is of a highly penal character, and should not be enforced without reasonably strict proof.

. The weight of the evidence is, that the property was taken by the defendant, as a constable, with a valid execution, with the full consent of the plaintiff, he, at the time, making no claim of exemption. Under such circumstances, to mulct the officer into ■ damages to thrice the value of the property, would he monstrous.

"Without considering any other point in the case, we reverse the judgment, because the jury decided against the great preponderance of the evidence, and remand the cause.

Judgment reversed.