State ex rel. Wyatt v. Bagby

Gxllett, J. Appellant brought this action on the official bond of appellee Bagby to recover a penalty for an alleged act of extortion. It is stated in the brief of appellant that the action is instituted under the provisions of §8, Acts 1883, p. 48, §6549 Burns 1901. The act of March 31,1879 (Acts 1879, p. 130), which relates to the fees of constables for mileage in the service of process, was amended by the act of March 8, 1897, (Acts 1897, p. 217, §8060 Burns 1901), and therefore we assume that if the section of the act of 1879 relative to a civil penalty for extortion was not repealed by implication by said §8 of the act of 1883, it is nevertheless true that the latter section is the only statute which is bx’oad enough to authorize the recovery of a penalty for the act of extortion charged, if it amounts to an extortion. The section last mentioned creates only a personal liability on the part of the officer, and therefore an action on his bond will not lie. State, ex rel., v. Souder, 14 Ind. App. 472. See State v. Flynn, 157 Ind. 52. Judgment affirmed.