It appears that, at the time of the service of the writ of garnishment on Highley, the latter was indebted to either John McBrien or the latter's wife, Mary McBrien, in the said sum of $352.91 for cattle which had been sold and delivered to said Highley by John McBrien. It was claimed by both John McBrien and Mary McBrien that the cattle so sold were the property of Mary McBrien; that they had been sold by John McBrien as her agent; and that the proceeds of the sale thereof were due to her.

It appears that on the afternoon of the day upon which the writ was executed, viz., September 10, 1910, an oral agreement was entered into at the office of the justice of the peace between counsel for the execution creditors, counsel for John McBrien and Mary McBrien, and Highley, the garnishee, to the effect that the money in the latter's possession would be turned over forthwith to the constable. Just what was the precise conversation had does not appear, though it does appear, and we think clearly, that the understanding and agreement was that the ownership of the cattle, and the right to the proceeds thereof in question, would be tried and determined in the garnishment proceeding before the justice; that an interplea on the part of Mary McBrien was contemplated; and that the constable would merely hold the fund pending a judgment of the justice in the premises. Pursuant to the agreement had, the fund was delivered to the constable; the latter executing to the garnishee the following receipt: "352.91. Sept. 10, 1910. Received of Harry Highley three hundred and fifty-two and 91/100 dollars. The same to be held by me until the garnishment suit pending in the case of Sleeth et al. v. John McBrien and Harry Highley, as garnishee, is determined. The sum herein paid being reposited by garnishee. Wm. Good, Constable." Thereafter, on September 16, 1910, the garnishee, Highley, filed his answers to the interrogatories as follows: "Answer to first interrogatory: I had no money of defendant except as stated in my answer to interrogatory No. 2. Answer to second interrogatory: At the time of the service of the writ of garnishment, I owed and was indebted to defendant John McBrien, for cattle purchased from him, the sum of approximately $1,454.07. Of this amount, by agreement between plaintiff's and defendant, I paid to the constable of this court the sum of $352.91 to abide the judgment of this court, which said sum was paid on the date of service of notice of garnishment; the balance of said debt I paid to John McBrien in pursuance of agreement between said plaintiffs and defendant. Therefore, having paid into court the amount aforesaid, and having fully answered in this behalf, garnishee asks to be discharged." | Thereafter, on September 19, 1910, the jus

tember, it appearing to the court that the answers of garnishee admit that he owed defendant John McBrien the sum of $352.91 and has paid said sum to the constable, it is therefore adjudged that plaintiffs are entitled to said sum of $352.91, and the constable is directed to turn said sum over to plaintiffs, less costs of suit. It is further ordered that the garnishee be discharged, with his costs."

It appears that on or about September 16, 1910, Mary McBrien delivered to the constable, plaintiff herein, a written notice, verified by affidavit, that she claimed the said fund of $352.91 paid into the hands of the constable by the garnishee as aforesaid; and that thereupon, on September 20, 1910, the constable made demand in writing upon Parkhurst Sleeth individually and as administrator of the estate of Merrifield W. Huff, deceased, to execute and deliver to him, as said constable, a bond; and that thereafter, on September 21, 1910, the appellants herein executed and delivered to the constable the bond here sued upon, whereupon the constable paid to Parkhurst Sleeth individually and as administrator as aforesaid the said fund in his hands.

The bond is conditioned as follows: "Now, if the said Parkhurst Sleeth, as administrator of the estate of M. W. Huff, deceased, and Parkhurst Sleeth individually shall indemnify the said William Good, constable as aforesaid, against all damages and costs which he may sustain in consequence of the seizure of said $352.91 and payment of same, or any part thereof, to said Parkhurst Sleeth, administrator as aforesaid, and Parkhurst Sleeth personally, and moreover shall pay and satisfy said Mary McBrien all damages which she may sustain in consequence of such seizure and payment of same, this bond to be void, otherwise to remain in full force and effect."

The relator, Mary McBrien, now prosecutes this suit in the name of the constable, William Good, averring that, at the time of the service of the writ of garnishment on Highley, the latter was indebted to her in the sum of $352.91 for cattle sold by her husband as her agent, and that she had sustained damages in the sum of $352.91 in consequence of the "seizure and payment of the said $352.91," alleging a breach of the obligation of the bond in that the principals and sureties thereon had not paid over and satisfied her for the "damage which she has sustained in consequence of the seizure of said $352.91 and the payment of the same by the said William Good, constable, to said Parkhurst Sleeth individually, Parkhurst Sleeth, administrator," etc. And the petition prays judgment for $700, the penalty of the bond, and costs, to be satisfied upon the payment of $352.91, with interest from September 10, 1910, and costs.

indebted to Mary McBrien, denied that the cattle sold were hers or that the proceeds thereof belonged to her, averred that the garnishee deposited the fund in question with the constable in pursuance of an agreement between John and Mary McBrien, and their attorney acting for them, and Parkhurst Sleeth, to the effect that the money so deposited should abide the result of the garnishment suit then pending. The answer then sets up the answer of the garnishee to the interrogatories propounded to him, the judgment of the justice of the peace in the garnishment proceeding, and avers that by reason of the agreement aforesaid, and the said judgment, the relator is estopped from further claiming said fund. The answer denies a breach of the bond or that the relator, Mary McBrien, was damaged in consequence of the seizure and payment over of the $352.91. And the answer further avers that Mary McBrien was not, at the time of the service of the writ of garnishment, in good faith the owner of the cattle or the proceeds of the sale of the same, but that her pretended ownership thereof was fictitious and fraudulent and made collusively with her husband for the purpose of aiding and abetting him in covering up his property to defeat his creditors and for the purpose of defrauding Parkhurst Sleeth and the estate of which he was administrator. The reply was a general denial of new matter in the answer.

At the close of plaintiff's evidence the defendants offered a peremptory instruction in the nature of a demurrer to the evidence, which was refused by the court. And a like instruction offered at the close of all the evidence in the case was likewise refused. The cause was submitted to the jury upon instructions which we deem it unnecessary to set out.

[1] The appellants urge that their demurrer should have been sustained. The authority of the constable for requiring the giving of a bond under the circumstances is predicated upon section 7551, Rev. Stat. 1909. This section, of which we italicize certain portions, is as follows: "If a constable levy an execution on any goods or chattels, and any person other than the defendant in the execution claim such property, and deliver to the constable a written notice of such claim, verified by the affidavit of the claimant or his agent, describing the property claimed, and stating his interest therein, whether it be in whole or in part thereof, and that he is, in good faith, the lawful owner of the interest claimed by him in said property, that the defendant in said execution has no right or title whatever in the interest claimed, and that said claim is not made in collusion with the defendant, for the purpose of vexing, hindering or delaying the plaintiff in obtaining his just rights, the constable, before proceeding to sell such property, shall take of

good security, and conditioned to indemnify him against all damages and costs which he may sustain in consequence of the seizure and sale of the property on which the execution shall have been levied; and, moreover, to pay and satisfy any person or persons claiming title to such property, all damages which such person or persons may sustain in consequence of such seizure and sale."

[2] In Smith ex rel. v. Rogers, 191 Mo. 334, 90 S. W. 1150, the court reviews its earlier decision in State ex rel. O'Bryan v. Koontz, 83 Mo. 323, saying that in the latter case: "After a learned and exhaustive discussion of the rights of an officer at common law to demand an indemnifying bond, in the absence of statutory authority so to do, the conclusion was reached that such rights as existed at common law did not obtain in this state as to a constable, for the reason that justices of the peace in this state have no common-law jurisdiction; that the right of a constable to demand an indemnifying bond exists only by virtue of the statutes of this state."

We are unable to see how the statute quoted above could confer upon the constable, the plaintiff herein, any right or authority to demand the giving of this bond. The statute, by its terms, permits and authorizes the constable to take a bond if he shall levy an execution on any goods or chattels and any person other than the defendant in the execution shall claim such property, etc. Upon compliance with the provisions of this section by the third person claiming the property, the constable, before proceeding to sell such property, is authorized to take a bond payable to himself, conditioned to indemnify him against all damages and costs which he may sustain in consequence of the seizure and sale of the property, and to pay and satisfy any person or persons claiming title to the property all damages which they may sustain in consequence of such seizure and sale. Here there was no execution levied upon any goods or chattels, but the proceeding was one in garnishment. Neither the plaintiff nor the relator suffered any damages in consequence of the seizure and sale of any property. There cannot be said to have been even a seizure of the money, for, while the garnishment writ was served, the fund in question came into the hands of the constable by and through an agreement with the relator and with her consent. The statute by its terms could not apply to the situation here presented, and the officer, under the circumstances, could not lawfully demand the giving of such bond. It will be observed that the bond does not follow the statute but is conditioned that Parkhurst Sleeth personally and as administrator shall indemnify the constable against damages and costs in consequence of the seizure of the fund in question, and the payment of the same, or any part thereof, etc., and shall