Richard M. Moore, use, &c. vs. Allen and Thrasher, 25 Miss. 363

Mr. Justice Fisher delivered the opinion of the court. This was an action of debt in the circuit court of Claiborne county, in the name of Richard M. Moore, for the use of Sylvester C. Keyes, founded upon a certain bond of indemnity executed by the defendants on the 18th day of March, 1846, to the said plaintiff, as sheriff of said county. The defendants below demurred to the declaration, and the demurrer was sustained by the court. From which judgment the case is brought into this court by writ of error.

The facts averred in the declaration are as follows: On the 4th day of June, 1841, Lawrence, Neese, & Co. recovered a judgment in Claiborne circuit court against the said Sylvester C. Keyes and one Josiah Kundell, for the sum of if1,532.24. On the 12th day of December, 1842, Keyes having filed his petition in the United States district court at Jackson, praying to be declared a bankrupt, received his certificate as a bankrupt.

On the 3d of February, 1844, he purchased certain personal property which was seized by the sheriff of said county, by virtue of an execution issued upon said judgment in the early part of the year 1846. Upon this state of facts, John B. Thrasher, one of the defendants herein, and the attorney of Lawrence, Reese, & Co., executed the bond in question, with Allen as his security, to the plaintiff as sheriff of said county.

The bond, after reciting the levy of the execution, and stating that “ a doubt had arisen, whether the right of said property was in the defendants Keyes and Kundell, or not, sets forth the following condition : Now, if the said Allen and Thrasher shall indemnify the said Richard M.

Moore, sheriff as aforesaid, against all damages which he may sustain in consequence of the seizure or sale of said property; and moreover shall pay and satisfy to any person or persons, claiming title to said property, all damages which such person or persons may sustain in consequence of such seizure or sale, then this obligation to be void.” The declaration, after setting out the levy of the execution upon the property of Keyes, acquired on the 3d of February, 1844, after his bankruptcy, contains the following-breach, to wit: “ And so the said plaintiff in fact says, that the said stock of jewelry and other articles, so levied on as aforesaid, are not subject to the said execution of the said Lawrence, Neese, & Co.; nor liable to be seized and taken by virtue thereof; and the said Keyes, by reason of the seizure thereof, as aforesaid, hath suffered and been subjected to great loss and .damages.” The breach then proceeds to state definitely the damages sustained.

Under this statement of the case, the question arises, whether the action can be maintained upon this bond against the defendants. The object of the statute in allowing the plaintiff in execution, his attorney, or agent, to execute a bond of indemnity to the sheriff in any case, is to transfer the liability,. to which he subjected himself by the seizure and sale of the property under the execution,"-to the persons executing the bond. The obligors in the bond only make themselves liable for such damages as the injured party without it could have, recovered from the sheriff.

Suppose, then, that the sheriff had proceeded to sell the property under the execution, without taking this bond, and Keyes had brought his action against the sheriff, could he, under the state of facts averred in the declaration, have recovered damages ? This question appears almost too clear to require an answer. The sheriff, by his plea, j usti-fies his action under process, emanating upon a judgment which does not appear of record to have been satisfied or discharged. The execution contains no evidence of payment or satisfaction.

The certificate in bankruptcy would have afforded no defence whatever to this plea, for the very plain reason, that it contained- matter going in discharge of the judgment since its recovery, and not appearing of record, or upon the execution, it was the duty of the defendant to have availed himself of this defence against the judgment by audita querela and supersedeas to the execution. The sheriff may have been wholly ignorant of proceedings in -bankruptcy; but even if he had been fully informed on the subject, it was not a question to be adjudicated by a mere ministerial officer, but by a judicial tribunal.

It is to our minds clear, that no action could have been sustained against the sheriff. Whatever would be a good defence to him, if no bond had been taken, will also be a good defence to those who, by the bond, assume his liability. The sheriff, under the facts chárged, was bound at his peril to proceed in executing the writ. He levied upon the property of the parties to the judgment; in this he committed no trespass, and was, therefore, liable to no damages.

It may be true, that Keyes would have a remedy in a different form of action against the plaintiffs in the execution to recover back the money, or the value of the property; but this question is not involved, and we, therefore, give no opinion. Judgment affirmed.