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make the offer more generally known, but it is no more binding than a public offer, orally made.

It is also urged that the complaint was bad, because it did not show that at the time of the demand, or at the time of the commencement of the action, the defendant had any notice that the plaintiffs had arrested Hewey and delivered him to the sheriff, or that they had done so on account of the offered reward. The complaint shows that the plaintiffs, after hearing of the offer of the defendant, and relying upon it, arrested Hewey, etc. It shows that the plaintiffs fully complied with the terms of the offered reward. They accepted the offer and performed the terms thereof. This gave them a complete and perfect right of action against the defendant, for the reward, whether the defendant had notice that the plaintiffs had accepted and performed the proposed contract or not. Notice to the defendant of the arrest of Hewey was not one of the conditions on which the alleged reward was to be paid. Harson v. Pike, 16 Ind. 140.

[Omitting a minor point.]

What we have said disposes of all the errors properly assigned, except that upon the overruling of the motion for a new trial.

We cannot reverse the judgment on the evidence. There was evidence tending to establish all the material allegations of the complaint. From the evidence, we think the jury may well have found that the defendant, by his oral statements, offered the reward in question for the arrest of Hewey, and that the statements were intended by him to be public, and to be accepted and acted upon by any one who might choose to accept and act upon the proposition; and that the plaintiffs, in pursuance of the offer, followed Hewey to another county, and arrested and returned him. [Omitting a statement of other facts given above.]

The appellant insists that it was the duty of McDavidson to arrest Hewey, as such special constable, and, therefore, that he could not legally claim the reward offered, or any part thereof, and hence that the joint action cannot be maintained.

It may be conceded that if McDavidson had been a regular constable, with a warrant in his hands for the arrest of said Hewey, it would have been his duty to make the arrest without reward; and that he could not have recovered the reward, though he followed Hewey into another county and there arrested him,

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which he might have done under the provisions of section 8, 2 R S. 1876, p. 651. Sturm v. Potter, 41 Ind. 181.

It may be, also, that if McDavidson had accepted an appointment as special constable, to serve a valid warrant properly directed to him, before he had any knowledge that any reward was offered for the apprehension of the accused person, the appointment being accepted without any view to the reward offered, he would be bound to serve the warrant without reward. The evidence in the case does not show clearly whether McDavidson accepted the appointment as special constable before he had notice that a reward was offered, and without any view to the reward; or whether he accepted it with a view to obtain the reward.

If he accepted the appointment after he had notice that the reward was offered, and with a view to obtain it, we are by no means prepared to say that his appointment as special constable, for the purpose of serving the warrant, would deprive him of the right to the reward. He was under no obligation to accept the appointment or make the arrest. If a private person is desirous of making an arrest, in order to obtain a reward, it seems to us much better that he should do it under a proper warrant and appointment as special constable than that he should do it without any warrant at all.

But the warrant in this case was directed to any constable of Fountain county, and not to McDavidson. It, therefore, conferred no right, and devolved no duty, upon him to make the arrest.

The statute provides that, "Whenever there shall be no constable convenient, and in the opinion of the justice an emergency exists for the immediate services of one, such justice may appoint a special constable to act in a particular cause, and shall note such appointment in such cause on the docket, and shall direct process to him by his name; and such constable so appointed shall discharge the duties, receive the fees, and have the powers in such cause appertaining to the office." 2 R. S. 1876, p. 638, § 110. See, also, id., p. 673, § 16.

The warrant, not being directed to McDavidson, conferred no authority upon him to make the arrest. Dietrichs v. Schaw, 43 Ind. 175. As it conferred no authority, it devolved no duty upon him, and he occupied the same relation to the case as if no warrant had been issued.

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The objection urged to the first charge is that it is too broad in its terms. The counsel in their brief say: "The phrase, 'any person, not only includes citizens generally, but officers of the law, constables, sheriffs and other officers. Now, if a sheriff or constable should make the arrest, on a proper writ, would he be entitled to the reward? Clearly not. But the court makes no distinction; it includes everybody; and, under the instruction of the court, everybody would be entitled to the reward, whether the arrest was made on a writ by an officer or not."

We have seen that there was no warrant in the case that authorized any of the plaintiffs to make the arrest, or devolved upon either of them any duty to make it. The charge, as applied to the case made, was not erroneous.

The third and fifth charges may not have been entirely correct in all respects, but if not, in view of the case made by the evidence, they could have done the defendant no possible harm. It was entirely immaterial for the purposes of the case, whether Hewey was arrested in or out of Fountain county. There was no duty devolving upon the plaintiffs, or either of them, to make the arrest either in or out of that county; and they had as much right to make the arrest in one county as in another.

There is no error in the record.

The judgment below is affirmed with costs.

Judgment affirmed.

NOTE BY THE REPORTER.-Public Officers. It is generally held, on grounds of public policy, that a reward cannot be claimed where the arrest has been made by a public officer whose duty it was to make it. Stamper v. Temple, 6 Humph. 113. So, where a watchman, on his beat, discovers a person setting fire to a building. Pool v. City of Boston, 5 Cush. 219. See, also, Gilmore v. Lewis, 12 Ohio, 281; Kick v. Merry, 23 Mo. 72; Day v. Putnam Ins. Co., 16 Minn. 408; Warner v. Grace, 14 id. 487; Marking v. Needy, 8 Bush, 22; Thatcher . England, 3 C. B. 263.

No action will lie at the suit of a sailor on a promise of the captain to pay him extra wages in consideration of his doing more than his ordinary share of duty in navigating the ship. Per Lord KENYON (Harris v. Watson, Peake, 72), who put it on the ground of public policy. So, where some seamen deserting, the captain, not being able to supply their places, promised to divide their overdue wages among the rest of the crew. Stilk v. Myrick, 2 Camp. 317, per Lord ELLENBOROUGH, who put it on the ground of defect of consideration.

Promise of a bribe to a bailiff to take bail is illegal, and will not maintain an action of assumpsit. Stotesbury v. Smith, 2 Burr. 924.

Public officers, whose duty it is to make an arrest, cannot recover a reward offered for the arrest, unless they are clearly included within the terms of the offer. Means v. Hendershott, 24 Iowa, 78.

Where a constable had a warrant in his hands, and was promised by the plaintiff & reward if he would use extraordinary efforts beyond what the strict discharge of his official duty called for in the arrest of the defendant, he was held not entitled to such

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reward on using such efforts which proved successful. Hatch v. Mann, 15 Wend. 44, reversing s. c., 9 Wend, 262.

A bank having been robbed, a reward was offered for the recovery of the property, and a proportionate amount for the recovery of a part. A boarding-house keeper, from information of his wife, suspected one of his boarders, and going to a police officer, stated his suspicions, and wished the latter to go with him; he did so, with other offcers, none having warrants, and searching the boarder's trunks, pointed out by the keeper of the house, found the stolen money. Held, that the keeper was entitled to the whole reward; the officers were not entitled to participate, acting merely in their duty. City Bank v. Banks, 2 Edw. Ch. 95.

In the most recent case (Bent v. Wakefield Bank, L. R., 4 C. P. 6), although the decision was put on another ground, it was said: "There are strong arguments of expediency touching the administration of justice and the interests of the State, why constables should not be allowed to receive rewards. The expectation of rewards would offer great temptations to delay an active search, by which delay the criminal might escape, or in a case like the present, to delay taking into custody a criminal who gives himself up, so that the constable might appear to use exertions to procure complete information, and for that to claim the reward. There would also be a temptation, particularly to those constables in the detective service, to look to bribes or to seek promises of reward from persons anxious to recover their property, and unless such were offered, to be inert in their efforts."

But to defeat the action it must appear that the claimant acted in his official capacity.

Where a common council offered a reward to all persons indiscriminately, for information of the location and description of real estate belonging to the city, and the city surveyor claimed such reward, held, that in the absence of proof that his discoveries and report formed part of his official duties, he was entitled to recover. Pilie v. City of New Orleans, 19 La. Ann. 274.

To an action for reward for information leading to conviction, it was pleaded that the plaintiff was a policeman, and it was his duty to give the information; held, that it might have been given under such circumstances as that he had done more than his ordinary duty and was therefore entitled to recover; and so the plea was held bad. England v. Davidson, 3 P. & D. 594. And where a police constable arrested a boy on suspicion that he had a stolen horse, and notified the superintendent, who notified the owner, and before the notice the owner had offered a reward for information leading to apprehension and recovery, in an action by the constable to recover the reward, held that a plea that he was guilty of breach of duty in not notifying the owner until after the issuing of the advertisement was bad. Neville v. Kelly, 12 C. B. (N. S.) 740.

A temporarily suspended police constable, apprehending an offender for whose detection a reward is offered, is entitled to recover it. Smith v. Moore, 1 C. B. 438.

Where a sheriff, under the governor's requisition, follows cne who, being at large on bail for felony, has left the State, and arrests him outside the State and brings him into the State, held that the fact of his official character will not prevent his recovering on an offer of reward. Gregg v. Pierce, 53 Barb. 387.

A sheriff acting upon an offer of reward for the capture of a criminal, is entitled to the reward in case of capture by him, if he makes the capture without any process in his hands, he not being under any duty to make the capture. Davis v. Munson, 43 Vt. 676; s. c, 5 Am. Rep. 315; Russell v. Bartlett, 44 Vt. 170.

Knowledge of Offer.-Generally a knowledge of the offer of the reward before the service was rendered is not essential to recovery. The liability to pay a reward offered seems to rest in some cases upon an anomalous doctrine constituting an exception to the general rule. "There are some considerations of morality and public policy which strongly tend to support this doctrine. If the offer was made in good faith, why should the defendant inquire whether the plaintiff knew that it had been made? Would the benefit to him be diminished by the discovery that the plaintiff, instead of acting from mercenary motives, had been impelled solely by a desire to prevent the larceny from being profitable to the person who had committed it? Is it not well that any one who has an opportunity to

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prevent the success of a crime, may know that by doing so he not only performs a virtuous service, but also entitles himself to whatever reward has been offered therefor to the public ?" Dawkins v. Sappington, 26 Ind. 199. See, also, Russell v. Stewart, 44 Vt. 170; Auditor v. Ballard, 9 Bush, 572; s. c., 15 Am. Rep. 728; Eagle v. Smith, Houst. (Del.) 293. On the other hand it has been held that under certain circumstances a previous knowledge of the offer of the reward is necessary to a recovery. For example, where trustees of a town offered a reward for the apprehension of a felon, although they may perhaps not bind the corporate funds, yet they may be personally liable on implied contract, but to render them so liable previous knowledge on the part of the claimant that the reward had been offered would be essential. Lee v. Trustees of Flemingsburgh, 7 Dana, 28. It was said in Stamper v. Temple, 6 Humph. 114, although perhaps, obiter, that to make such an offer binding, there must be an aggregatio mentium, which could not be if the claimant was ignorant of the offer. But this was in the case of a sheriff, and the court added, "The arrest would have been made not for the reward, but in discharge of the public duty." In Fitch v. Snedaker, 38 N. Y. 248, it was said that there can be no assent or agreement to an offer of which the party has not heard; but that was where a reward had been offered for apprehension and conviction, and the claimant, after apprehension by another in consequence of information imparted by him before the offer of the reward, gave further information leading to a conviction. It was held that the offer was prospective, and applied only to information thereafter given and leading both to apprehension and conviction. But in a recent New York case it was held that in order to entitle a party to recover a sum of money, offered as a reward for the recovery or information leading to the recovery of property lost, he must establish between himself and the person offering the reward, not only the offer and his acceptance of it, but his performance of the service for which the reward was offered. Finding the property and advertising it, by one who did not know of the offer, and could not have acted in reference to it, does not entitle him to recover. 1873. Howland v. Lounds, 51 N. Y. 604; s. c., 10 Am. Rep. 654. This case, however, is based upon Fitch v. Snedakar, supra, in which, as we have seen, the point was not necessarily involved.

The plaintiff having recovered and returned to the owner a stolen horse and wagon, the latter handed him some money, saying, "here is something toward what you have done, and if you catch the thief I will give you $25." The plaintiff replied that he would do all he could, but did not look at the money until defendant was gone, when he found it was $2. The defendant had in fact on the morning of the same day posted an offer of a reward of $50 for the return of the horse and wagon, and $25 for the arrest of the thief, but the plaintiff did not know of this until after the defendant had left. In an action to recover the $50, held that the plaintiff had accepted the $2 in satisfaction. Marvin v. Treat, 37 Conn. 96; s. c., 9 Am. Rep. 307.

Performance.-A substantial performance will entitle the claimant to the reward. Thus, where A, having been robbed of [money, promised B $100 if he would tell him who got it, and B tells him that C got it, and it turns out that C had an accomplice D, with whom he shared the money, held that B was entitled to recover. Gilkey v. Bailey, 2 Harrington, 359.

Proof of mere information to the police officers who recover stolen property will not alone establish a right to recover reward; there must also be proof that the property was recovered through the information. Franklin v. Heiser, 6 Blatchf. 426.

When a reward was offered for information leading to the discovery of an offender, and the plaintiff told defendant that C knew something of the affair, and if treated" would confess; and the defendant treated" him accordingly, and he did confess and was con victed, held, that the plaintiff was entitled to recover the reward. Smith v. Moore, 1 C. B. 438.

Where the owner of a stolen horse offered a reward for the detection of the thief, and the plaintiff informed the owner that one D was the thief, and gave him some information tending to support the charge, and the owner had D arrested therefor, held prima facie evidence to sustain a recovery for the amount of the reward, without showing conviction. Brennan v. Haff, 1 Hill, 151.

A telegram, directed to a sheriff as such, describing a stolen horse, and saying “a re ward of $50 will be paid for her recovery," held, a general offer to whomsoever should re