tract of January 13, 1887, and that those representations so made by defendant were knowingly false, or made by him when he did not know them to be true, plaintiff was not bound by the engagement of March 14 or 16, 1887; and if you so find, your verdict should be for the plaintiff for the amount at least of the difference between the value of plaintiff's property on the 9th of July, 1887, and of the value of the six lots described in the complaint as belonging to defendant, and designated in the alleged contract of January 13, 1887."

It informed the jury

This instruction was erroneous. in effect that the plaintiff might rescind the second contract, and recover for a breach of the first on the sole ground that the former was induced by fraudulent representations. It leaves out the material element of damage or injury which must be shown to authorize the rescission of a contract. For aught that appears by the complaint or the evidence, the plaintiff may have been benefited rather than injured by this second contract. If so, he has no cause of complaint or ground of action. The error in ruling upon the demurrer to the complaint is carried into this instruction.

9. For the reasons above stated, the court erred in denying defendant's motion for a nonsuit. The plaintiff had no cause of action on paper, and none was shown by the evidence. For these reasons, the nonsuit should have been granted. For the same reasons, the motion for a new trial was improperly overruled.

Judgment and order refusing a new trial reversed, with instructions to the court below to allow the parties to amend their pleadings.

MCFARLAND, J., PATERSON, J., THORNTON, J., SHARPSTEIN, J., and BEATTY, C. J., concurred.

[No. 11534. Department One.-January 30, 1889.] DANIEL BEST ET AL., APPELLANTS, v. W. C. JOHNSON ET AL., RESPONDENTS.

OFFICIAL BOND ASSIGNEE IN INSOLVENCY-SHERIFF.-The liability of the sureties on the bond of an assignee in insolvency for converting to the use of the estate the property of another than the insolvent is not the same as that of the sureties on a sheriff's bond, when the sheriff seizes, under process, the property of another than the debtor. The duties of the assignee are wholly private, and the creditors and debtor are alone interested in the amount and sufficiency of his bond, But neither the sureties of such assignee nor of a sheriff are liable for the wrongful seizure or detention of property or money of another not taken under process.

APPEAL from a judgment of the Superior Court of Monterey County.

The facts are stated in the opinion.

Geil & Morehouse, for Appellants.

Dorn & Parker, for Respondents.

BELCHER, C. C.-This is an action against the principal and sureties on a bond, made to insure the faithful performance by the principal of the duties devolving upon him as assignee of the estate of an insolvent debtor. The complaint alleges the appointment of the defendant Johnson, as assignee of the estate, the execution, approval, and filing of the bond, the plaintiffs' ownership of certain described personal property, and that Johnson, while acting as such assignee, wrongfully and unlawfully, and against the will of plaintiffs, took the property from them and converted it to the use and benefit of the estate, and afterward, on demand many times made, refused to deliver to them the possession thereof. The prayer is for a judgment for the value of the property, with damages and costs.

A general demurrer was interposed to the complaint,

and sustained as to the sureties Dorn and Hoffman, with leave to plaintiffs to amend. Plaintiffs declined to amend, and thereupon judgment was entered that they take nothing as against the sureties.

The statute requires the assignee of an insolvent's estate to give a bond, with sureties, conditioned for the faithful performance of the duties devolving upon him, and it provides that "the bond shall not be void upon the first recovery, but may be sued upon from time to time by any creditor aggrieved, in his own name, until the whole penalty is exhausted." (Insolvent Act of 1880, sec. 15.) The duties of an assignee, as declared by the act, are to take into his possession all the estate of the insolvent debtor, except property exempt by law from execution, if need be, to sue in his own name, and recover all the estate, debts, and things in action, belonging or due to such debtor, to sell the property and convert the same into money as speedily as possible on the order of the court, and to keep correct accounts of all moneys received by him, and to pay them out on the order of the court. (Sections 18, 21, 25, 29, and 34.)

It is argued for appellants that Johnson, as assignee, had a right to take into his possession only such property as belonged to the insolvent; that he had no right to take the plaintiff's property, and that when he did so and converted it to the use of the estate, he violated the conditions of his bond, and he and his sureties became liable thereon. And in support of this theory, counsel cite numerous cases, and among others, People v. Schuyler, 4 N. Y. 173; Van Pelt v. Littler, 14 Cal. 194; Lammon v. Feusier, 111 U. S. 17.

All the cases cited are to the effect that if a sheriff or constable, having in his hands for service a writ of attachment or execution, seizes thereunder the property of a stranger to the writ, he becomes a trespasser, and is guilty of such official misconduct as makes him and his sureties liable on his official bond.

In People v. Schuyler, supra, the court, after stating that the defendant was a sheriff, and that the writ was delivered to and received by him as a public officer, said: "His sureties undertook that he should faithfully execute' the process. If he had, in all things,' performed his duty, he would have seized the goods of Fay, or returned the writ, instead of which he levied upon the goods of Bachellor, as the property of the defendant in the attachment. Upon principle and upon grounds of public policy, it seems to me that the responsibility of his sureties should be different from those they would incur, if the sheriff had entered upon the premises of the relator, and removed his goods without any process whatever. In the last case supposed, the sheriff would act in his own right, and might be resisted as any other wrong-doer. In the one before us, he was put in motion by legal authority, invoked in behalf of others, and could command the power of the county to aid him in its execution." And in Van Pelt v. Littler, supra, the court said: "The weight of authority, and, as we think, a fair construction of the statute, and the condition of the bond, are in favor of the maintenance of the action. The legislature intended that the officer and his sureties should be responsible for every abuse of his official powers, and we think there could not well be a more flagrant abuse of such powers than the seizing and selling of the property of one person under and by virtue of an execution against another. He does not act in such a case in a private and individual capacity, but as an officer, clothed with official authority, and protected by the judgment of a court and the process which he pretends to execute. No resistance can lawfully be made. by any person whose property is thus taken. The property itself may be detained, whether legally taken or not, and a summary mode is provided for the protection of the officer, to determine disputes in regard to the title. To hold that such an act is not official, at least so

far as to charge the sureties, it appears to us would be in contravention of the spirit and intention of the statute."

There is a broad and obvious distinction between the cases cited and the case in hand. In those cases the officer, when he took the property, claimed to be executing process issued from a competent court, and was apparently acting under lawful authority. No one could rightfully have interfered with or resisted his seizure of the property; and, if needed, he could have called to his assistance the posse comitatus.

Not so with the assignee. He had no writ or process to serve. He was not put in motion by legal authority, but was acting at his own instance, and upon his own authority. He could not have invoked the aid of a posse to assist him, but might have been resisted like any other wrong-doer.

The duties of the assignee of an insolvent's estate are wholly private. He is to take charge of and manage the estate for the benefit of the creditors, and they are the only persons named in the act who can sue on the bond. (Section 15.) The creditors and debtor are alone interested in the amount and sufficiency of the bond. (Luhrs v. Kelly, 67 Cal. 291.) It follows that the liabil ity of the sureties on the assignee's bond is different from the liability of the sureties on a sheriff's bond.

But if it be assumed that this is not so, and that the same rule is to be applied in each case, there would, nevertheless, be no liability upon the sureties here. For it is clear that the liability of the assignee's sureties can be no greater than the liability of a sheriff's sureties. And the rule is, that a sheriff's sureties are not liable for the wrongful seizure or detention of property or money when not made by him under process. (State v. Mann, 21 Wis. 684; Turner v. Collier, 4 Heisk. 89; Governor v. Perrim, 23 Ala. 807; Schloss v. White, 16 Cal. 66; and see Commonwealth v. Cole, 7 B. Mon. 250; 46 Am. Dec. 506, and notes.)