Armstrong vs. Burrell and others, 12 Wend. 302

By the Coart, Nelson, J. The bond in this case was taken by the sheriff under the 4th

section of the statute, 1 R. L. 92, which is a copy of the 13 Ed. 1, ch. 2, and is not assignable to the defendants in the replevin suit. Such bond is taken for the indemnity of the sheriff, and at his peril; for if he neglects to take it, or takes insufficient pledges or bail, he becomes personally responsible for a return of the goods replevied, in case a return is awarded by the court. 18 Viner, 399. Rouse v. Patterson, 2 Saund. 195, note 3, b.

Formerly, if there was judgment of return, and the sheriff could not find the goods or chattels upon the writ of retorno habendo, and a return of elongata was made, the defendant might have a scire facias to summon the persons who were pledges for the plaintiff at the execution of the replevin that he would make return if awarded; this writ brought them into court, which enabled them to show cause against the re- ' turn ; and if they failed, the defendant had a writ commanding the sheriff to take the beasts or goods of the pledges.

If none could be found belonging to them, upon such return to this last writ, the sheriff himself became responsible. Gilb. Replevin, 176, 7. 1 Saund. 195, n. 3. 2 Selw. 907. This remedy has latterly given way to an action on the case against the sheriff, immediately after the return of elongata upon the writ derotomo habendo, grounded upon'the insufficiency of the pledges taken by him.

Some evidence of such insufficiency must be given by the plaintiff; but if slight, it will be sufficient to tfjrow the burthen of proof upon the sheriff; for they .are known to him, and it was his business to see that they were sufficient. Bull. N. P. 60. This brief history of the law on this subject shows, that though the sheriff is responsible for the sufficiency of the pledges, they are taken and proceedings instituted against them if at all, chiefly for the ultimate benefit of the defendant.

The scire facias was a proceeding directly between him and the bail, and the action on the case against the sheriff is permitted under the idea that proceeding against-the bail, if-had, would be fruitless. If the sheriff sues upon the bond, it is no doubt for the benefit of the. defendant in the replevin, not as agent or trustee but in his official capacity, and as well to protect himself against the liabilities he is under, which may be enforced un, der one or the other of the above remedies, as to secure the rights of the party.

Having instituted such suit, which he had a right to do for his own protection, and without the advice or approbation of the defendants in the replevin, the question is, whether it is competent for them to interfere with its prosecution so as to defeat the action, by releasing the bond, without regarding the interest of the sheriff 1 apprehend not. A release of the bond before suit brought would extinguish the cause or ground of action, and prevent the suit. The sheriff, then, would have no further interest in the subject.

But till then, he would stand personally liable to the defendants, with this bond as the means of indemnity in his hands and under his control, and which he had a right at any time to prosecute and obtain a judgment upon, for greater caution. Having thus commenced proceedings, for the double benefit, as it were, of himself and the defendants, it is not for them to interfere and control the proceedings, as though they were the sole parties thereto.

It is true their release may cover the subject matter in litigation, but the sheriff has become interested in the .costs, to which he ought not to be subjected, nor ought he to be turned round to seek them from other parties by. a new litigation. Being interested, as well as the defendants in the replevin, when the suit ¡was commenced, and a party on the record responsible for the costs of the litigation, and having rightfuly commenced the suit, the latter ought not to be viewed as sole parties in interest in it, so as to defeat it by the release set up in the plea.

It was the suit of the sheriff, and under his control. If the plea had disclosed the fact that the defendants in replevin had commenced the suit on the bond in the name of the sheriff, for their benefit, then no doubt the release would constitute a perfect bar. It would then be their suit in judgment of law, and though the sheriff might nominally be liable to costs, and would be obliged to look to the defendants for re-imbursement, he voluntarily assumed that risk by permitting the institution of the suit at their instance.

I am aware that the plea in this case sets forth that the bond is prosecuted in trust for, and to the sole and only use of Knapp and Davis; but this is true as an inference of law, from the fact that it is a replevin bond, and amounts to no more than is conceded in the above view, and may be said of all suits on such bonds by the sheriff, and though the defendant in replevin has nothing to do with them. The defendants here are not without a remedy. The suit being in the name of an officer of the court, and upon an official bond, it is peculiarly under our direction, and upon a

summary application, the court would be disposed to regard the rights and interests of all parties ; and this, I .apprehend, is the only remedy. We cannot sanction a principle so unjust to this officer, and unreasonable in itself, as that which would put it in the power of the defendants in replevin, after standing by and holding the sheriff responsible for the return of the property until he had instituted a suit on the bond, for greater security to himself, and which at the same time operates for their behefit, to defeat such suit in any stage of it, without regard to and in defiance of his rights.

The security of the rights of the defendants in the replevin suit, and of all others concerned, does not require it. Judgment for plaintiff.