Northern v. State ex rel. Lathrop

Perkins, J. — Debt on the official bond of a constable, against Mm and Ms sureties. Two breaches were assigned in the declaration.' 1. Failure to return an execution; 2. Failure to collect the money on the execution. Pleas. 1. To the declaration, no such execution. Replication that there was such execution; issue thereon. 2. A plea to the first breach, as follows : “The defendants say that, after the issuing of said execution, and before the return day thereof, and before the 10th day of May, 1845, the said Joshua Northern ceased.to be a constable of Lawrenceburgh township aforesaid; and that one Peter PL. Ewing, having been duly elected a constable of said township, and having duly qualified as such, to-wit, on the 10th day of May, 1845, and before said writ had been executed, the said Joshua Northern did, on the said last named day, the said Ewing then being a constable as aforesaid, deliver the said execution to him, the said Ewing, to be executed, and the said Ewing, as such constable, then and there accepted and received the same, and this,” &c. Demurrer sustained to this plea. 3. A plea to the second breach, that, wlfile the execution was in the hands of Northern, the defendants therein had no property subjeetto it. Replication, thatthey had such property; issue thereon. 4. A plea to the first breach, that Northern did return the execution within a year. Replication in denial; issue thereon. There was a fifth plea to wMch a demurrer was sustained, but we need not notice it. The issues of fact were decided summarily by [114] the Court for the plaintiff, and a new trial was denied. The evidence is upon the record. The ¿emm.rer to the second plea should have been overruled. . Section 422, p. 750, of the R. S., enacts that: “If any officer to whom an execution shall have been delivered, shall die, or shall go out of office before such writ shall have been executed, his successor, or any officer authorized by law to discharge the duties of such office in such case, shall proceed thereon in the same manner that the officer to whom such writ was originally delivered might have done.” We think this section authorizes a constable, going out of office, to deliver to his successor unexpired executions ; and, of course, excuses such constable from returning those so delivered. The finding of the Court upon the issue on the replication to the third plea was wrong. The defendants had no property subject to execution. It is admitted they had not unless the corn mentioned below was so. A witness, “ James H. Goff, testified that, about the last of May or first of June, 1844, after the corn which David Griffin had planted on the farm of George Cheek, was two or three inches high, said Griffin called and told him the weeds were about taking his corn; that he was poor and sick, and should not be able to raise his crop unless,” &c. Goff then bought the corn of Griffin, paid a part of the consideration in hand, &e. The execution against Griffin, for failing to make the money on which, the defendants are sued, did not issue till the August succeeding this sale, and it is not pretended there was any fraud; but it is insisted that the corn was not so in esse at the time as to be the subject of sale, and that the contract was for an interest in land and within the statute requiring a memorandum in writing. The cases of Whipple v. Foot, 2 John. 418; Austin v. Sawyer, 9 Cow. 39; Craddock v. Riddlesbarger, 2 Dana 205; and Jones v. Flint, 10 Ad. & Ell. 753, among others, decide that growing crops, raised annually, by labor, are the subject of sale as personal property, before maturity, and that their sale does not [115] necessarily involve an interest in the realty requiring a written agreement. See also Chit, on Con. 301; 1 Hill. Ab. 58. We think this case comes within those cited. No other point requires an opinion. J. T. Brown and E. Dumont, for the plaintiffs. P. L. Spooner, for the defendant. It is only necessary to add, that we are not satisfied, upon a full examination of this case, that the plaintiff in error was not injured by the erroneous decisions of the Court below, and shall, therefore, reverse the final judgment there rendered. Per Curiam. — The judgment is reversed with costs. Cause remanded, &c.