
    Isaac Miller et al. v. Rodolph B. Rhoades.
    1. The bond of a judgment creditor, conditioned that he will indemnify an officer, in case the latter will sell property held by Mm under execution, at the suit of the creditor, but which is claimed by the debtor as being exempt, is not invalid as being against public policy.
    2. A judgment recovered by the debtor against the officer, in an action for the value of the property so sold, the creditor having due notice of the action, and an opportunity to defend against it, is conclusive evidence against the obligor, of the amount of damages sustained in a subsequent action on the bond.
    Motion for leave to file a petition in error to reverse the judgment of the district court of Logan county.
    This was an action by Rhoades, a constable, upon a bond of indemnity given him by Miller, a judgment creditor, contlitioned for the constable’s indemnification in case he would sell certain property held by him under execution, at the suit of the creditor, but which was claimed by Freeman, the debtor, to be exempt from execution. After sale of the property an action was brought against the officer by the debtor for the value of the property so sold. Of this action the creditor had due notice, and an opportunity to make defence was accorded him. In a subsequent action on the bond, the court held that the judgment so recovered against the officer was conclusive evidence of the amount of damages sustained by the officer, and judgment was entered accordingly.
    
      William Lawrence (with whom was Neman & Neman, E. J. Howenstine and Joseph H. Lawrence) for the motion:
    
      1. The bond is unauthorized by statute or common law, and therefore void. Civil Code, sec. 428; 12 Eng. C. L. Rep. 347; Curtis v. Patterson, 8 Cowen, 65; Bagley v. Bates, 8 Johns. 143; Gwynn on Sheriffs, 261, etc., notes; Swan’s Treatise, 266.
    2. As a common-law bond it is void as against public policy, because given to induce a constable to violate or omit to perforin his duty. 1 Parson’s Contr. 456.
    3. The judgment of Freeman against the constable is not conelusive of the right of the constable to recover on the indemnity bond, and the court below erred in holding otherwise. Starkie on Ev., pt. 2, p. 194; Broom’s Legal Maxims, 131, 135, 142; Kinnersley v. Orpe, Doug. 56; Outram v. Moorewood, 3 East, 356; The State v. Colerick, 3 Ohio, 487; Westerhaven v. Clive, 5 Ohio, 136; The State v. Jennings, 14 Ohio St. 73; Barkalow v. Emerick, 18 Ohio, 268.
    4. The cases cited in support of the action arc cases where bonds were authorized by statute, or cases where the property was claimed by third persons, and not cases of controversy as to whether the property was exempt from execution. In such case the parties should be left to their remedies by motion to set aside the levy, or action against the officer for omission or breach of duty, petition in chancery, etc. A. judgment creditor should not be permitted to take the law into his own hands.
    
      West, Walker & Kennedy, contra:
    The bond is not void on grounds of public policy. A party in interest asserted a right which was controverted, and the law furnished no mode of having it judicially determined except on an issue raised between the adverse party in interest and the officer. A contract to indemnify the officer for raising such issue and procuring a judicial determination of the controverted right is not against public policy, but is valid, as being in furtherance of justice. Bouv. Die. “ Indemnity ” ; 1 Bouv. Inst. § 78d.
    Where the promise of indemnity proceeds from the honest assertion of a supposed right, it will be enforced. Ciarle, v. 
      Foxcraft, 6 Greenl. 296; Coventry v. Barton, 17 Johns. 342; Hunter v. Agee, 5 Humph. 57; Wood v. Allen, 2 Met. 53.
    The right to, and doctrine of, indemnity against the consequences of an erroneous seizure in execution of personal property, is considered and recognized in the following cases: Boards v. Helm, 2 Met. (Ky.) 500; Shriver v. Harbaugh, 37 Penn. 399; State v. Sharp, 3 Sneed, 615; Patterson v. Anderson, 40 Penn. 359; Bond v. Ward, 7 Mass. 123.
    See also Parker v. Cole, 7 Clark (Iowa), 167; 2 Hilliard on Torts, 228, § 11.
   By the Court:

We see no error in the record. The bond was not against public policy. It seems to have been given and received in good faith, for the purpose of relieving the officer, and enabling the parties in interest to litigate and settle their own disputes at their own costs. The creditor having notice of the action against the constable, and an opportunity to make defence, is bound by the judgment, and it was conclusive against him in the action on the bond.

Motion overruled.  