would otherwise come to them under their contract with Clark, Hill, Thompson & Co., and that they declined to give the order, if one was demanded, because at the time it was demanded there was nothing due them from Clark, Hill Thompson & Co. But Hill's liability, under the findings, was independent of such fact. His liability rested solely upon his agreement to pay Rossiter & Mannel's orders, and it was his right to refuse to pay except upon their orders. Hill needed their orders in order to justify him in charging them with such payments as he should make, and he did not need the orders less because there was nothing due Rossiter & Mannel from Clark, Hill, Thompson & Co. If Hill was the means of loss to Rossiter & Mannel he might be liable to them for such loss, but we are unable to see how a wrong done by him to them could enable the plaintiff to recover of him otherwise than in accordance with the terms of their contract with him.

In our opinion the court erred in rendering judgment for plaintiff. On the plaintiff's appeal the judgment of the court below must be affirmed, and on the defendants' reversed.

TOWLE & ROPER, Appellants, rs. H. MANN, Appellee.

Filed December 17, 1879.

Section 3058 of the Code, in so far as it deprives the purchaser or claimant of property levied upon by an officer, under the contingency therein provided, from bringing an action against such officer for the specific recovery of such property, is unconstitutional and void. En.

Appeal from Harrison district court.

Action to recover specific personal property which it was stated in the petition the defendant, as constable, under and by virtue of an execution, had levied upon and taken from plaintiff's possession. The answer, among other things, stated that "defendant states that after the levy (mentioned in plaintiff's petition) on the property therein mentioned by this defendant, as constable, an indemnifying bond was given to him, with good and sufficient sureties, approved by said officer, as provided by law, which bond was duly returned to the court that issued the execution mentioned in plaintiffs' petition, and filed by said court with the execution in the case of Milburn Wagon Co. v. W. T. Nash and E. H. McBride, which is a bar to this action."

To this portion of the answer a demurrer was interposed, on the ground that the statute on which it is based is unconstitutional. The demurrer was overruled, and the plaintiff appeals.

Cochran & Bailey, for appellants.

F. M. Dance, for appellee.

SEEVERS, J. 1. The Code, § 3055, provides that an officer, if he has received the notice therein contemplated, may refuse to levy, or release the levy made, unless an indemnifying bond is given him; and section 3058 is as follows: "The claimant or purchaser of any property, for the seizure or sale of which an indemnifying bond has been taken and returned by the officer, shall be barred of any action against the officer levying on the property if the surety in the bond was good when it was taken. Any such claimant or purchaser may maintain an action upon the bond, and recover damages as he may be entitled to." Under this statute the defence was pleaded, and the effect of the decision below is to compel the plaintiff to accept the money value of the property, and damages for the unlawful taking in lieu of the property, and the question is whether this statute is constitutional.

The constitution of this state provides that "no person shall be deprived of life, liberty or property without due process of law," (article 1, § 9, Code, 770,) and the same provision is contained in the constitution of the United States.

The plaintiff claims to be the owner of a portion of the property in question, and for the purposes of this case such property must be regarded as belonging to him. As the defendant relied on the statute as a defense to the whole action, and the defense was so pleaded, the demurrer should have been sustained if the same constituted a partial defense only. "Due process of law "has been variously defined, but it "undoubtedly means in the due course of legal proceedings, according to those rules and forms which have been established for the protection of private rights," (Edwards, J., in Westervelt v. Gregg, 2 Kernan, 209,) and it was intended thereby "to secure the individual from the arbitrary exercise of the powers of government, unrestrained by the established principles of private rights and distributive justice." Bank of Columbia v. O'Kely, 4 Wheat, 235.

Under the pretence that the property in question belonged to the defendants in execution the officer levied upon and took possession of the property of the plaintiff. The latter is thereby deprived of such property without a trial, without

having had his day in court, without a pretence that the forms and proceedings known to the law of the land have been complied with; and in effect the plaintiff is compelled "to sell his property on the market whether he so desired or not. The process in the defendant's hands did not authorize him to take the plaintiff's property, and therefore, for the purposes of this case, it cannot be regarded as due process of law. "There is no rule or principle known to our system under which private property can be taken from one man and transferred to another, for the private use and benefit of such other person, whether by general laws or by special enactment. Cooley on Cons. Lim. 357.

If the plaintiff cannot recover the specific property taken he is deprived thereof without his consent under and by virtue of a general statute. If this had been done directly-that. is, if the statute had so provided in terms-no one would claim it was constitutional. In effect, this precise thing has been done, and the plaintiff's property has been transferred to another, unless they can have their day in court, and their right to the specific property adjudicated. The rule must be applicable to all property, and therefore such as may be valuable only for its associations may be taken as well as that which possesses an intrinsic value.

Heirlooms, pictures of deceased friends, family bibles, and many other articles of property that might be named, must share the fate of other property but for the statute exempting them or some of them from execution. It may be said the statute does not apply to actions to recover specific personal property, but only to actions brought against the officer to recover the value of the property taken. But it has been held otherwise in Kaster & Farwell v. Pease, 42 Iowa, 488; Finch v. Hollinger, 43 Iowa, 598; and it has been so ruled in Missouri under a similar statute. Bradley v. Holloway, 28 Mo. 150; St. Louis, Alton & Chicago R. Co. v. Castello, 30 Mo. 128. Besides this, Code, § 3241, provides, in actions to recover specific personal property, that the plaintiff if he so elects, if it is found he is entitled to the property, may take judgment for its value if the property is not obtained on the writ, and also for damages for the detention. The officer may, therefore, be made liable to pay the value of the property when the action is brought to recover it, as well as if the action were brought directly to recover such value. It may also be said that the owner may attend the sale, and notify all persons not to purchase, and that if any person does pur

chase he may, in an appropriate action, recover the property of such purchaser, and that therefore the owner will not be deprived permanently of his property, and that if he is so deprived for the short period existing between the levy and sale it will not render the statute unconstitutional. The objections to this view are at least twofold:

First. The constitution in emphatic terms declares that no person shall be deprived of his property without due process of law. No distinction is made between a long or short time. The constitutional provision is violated whenever a person is deprived of his property for any length of time, unless provision is made whereby he can maintain an action for its recovery.

Second. It does not follow, because the property is offered for sale, there will be bidders. The notice given would tend to prevent bidding. If there were no purchase the officer must return the property, and again offer it for sale, and this may be continued indefinitely. There is no provision of law whereby an officer may surrender the property to the owner after a levy and execution of the bond. It may be further said, that the officer is not fully indemnified if actions like the present may be maintained against him. But is this true? The statute provides, and it has been held, the officer may refuse to levy, or release the property after levy, if he receives a notice in writing that another than the execution debtor claims the property, and the plaintiff in execution refuses to give the officer an indemnifying bond. If such a bond is given the officer is sufficiently protected, if he takes such a bond as he is authorized to take, and therefore it follows that there is not even an apparent necessity for the violation of the constitution for his enefit.

2. The plaintiffs claim possession of a portion of the property under a mortgage executed to them by McBride. In such property the plaintiffs have no right or interest except to the extent of the debt due them. In a constitutional sense such property does not belong to them. We do not therefore see why the general assembly may not provide that an action for the preservation of their rights thereto should not be so brought that a recovery of their pecuniary interest therein should be the limit of the recovery instead of the specific property. The result is that so much of the statute as declares, in a certain contingency, that the owner cannot maintain an action against an officer who may levy thereon

under an execution against another, for the recovery of the specific property levied on, is unconstitutional and void. Reversed.

ADAMS, J., dissenting.

Filed December 17, 1879.

Petition in this case considered, and held suficient to entitle the plaintiff to have his claim against the estate of defendant's intestate examined. Extent of the suretyship, and the amount to which he was entitled, and his right to subrogation, determined.-[ED.

Appeal from Guthrie circuit court.

The facts are stated in the opinion.

J. L. Tait and Charles S. Fogg, for appellant.
C. Hadin and E. R. Fogg, for appellee.

SEEVERS, J. The facts, sufficiently stated, are that in October, 1876, the Citizens' National Bank recovered a judgment in the Polk district court against defendant's intestate and the plaintiff. The bank, in May, 1877, filed said judgment as a claim against the estate, and the same was allowed and placed among the catalogue of claims.

In April, 1878, the petition in the present action was filed, and the allowance of said judgment as a claim against the estate was alleged, and that the same had been assigned to the plaintiff, and was his property; that the personal estate was insufficient to pay the indebtedness, and that the intestate died seized of certain described real estate. The relief asked was that the defendant be required to make a report, and that the real estate be sold to satisfy said claim, and "for such other and further order in the premises as may be proper."

The answer admitted the recovery of the judgment. The assignment of the claim against the estate was admitted, and that said claim had been fully paid to the bank by the plaintiff. It should be stated that the latter alleged in the petition that he was surety to the bank for the intestate, and in the answer it was stated that the plaintiff and intestate were co-sureties for another person. The action was treated by the parties and tried as an equitable proceeding, and the petition was dismissed. The plaintiff having paid the claim of