Meherin

This is an action by the assignee of the California Steamship Company, an insolvent corporation, against defendant Saunders, as constable of judicial township No. 5 of Santa Barbara county, and the sureties upon his official bond. Defendants appealed from a judgment rendered against them, and also from an order denying their motion for a new trial.

Saunders, as constable, held certain executions running against the California Steamship Company, prior to insolvency proceedings. One of these executions he levied upon its real estate, and proceeded to sell the same. At the sale one Ambrose bid $10,000 for the property, and it was knocked down to him as the highest bidder. Thereupon, in payment of the purchase price, he gave the constable $855 in money and his personal check for the balance, amounting to $9,145, Ambrose was well known to the officer, and of sound financial standing. The constable issued to him a cer *465 tifieate of sale in proper form, and satisfied the executions, including accruing costs, with the money received. At this stage of the proceedings Ambrose stopped payment upon the check, and the money therefor has never come into the hands of the constable. This…