Preston v. Yates

Learned, P. J.: The learned justice who tried the action properly held that the contract between the parties was embodied in the writing, executed by the defendants and delivered to the plaintiff. They must recover, if at all, on the bond. And the parties to the bond had a right to put into it such lawful conditions as they chose. They chose to make it one of the conditions that the present defendants [94] should be permitted to defend any action brought against the sheriff for his acts touching the levy, etc. Those words must have been intended to have some meaning. I think the meaning is well known. To defend a suit brought against another is to control the defence. And the first and important part of such control is the designation of the attorney. The person who does not designate and appoint the attorney cannot control his acts. And if he cannot control the attorney’s acts he cannot control the defence. The privilege of employing special counsel, which was offered to the defendants, was valueless. The sheriff’s attorney would not have been obliged to follow the advice of such counsel. If the language of the bond had been that, in case of a suit against the sheriff, the indemnitors might employ counsel and give advice, the plaintiff’s position would be more tenable than it now is. I think, therefore, that the sheriff refused to permit these defendants to defend the action. He, therefore, broke the condition and cannot recover’ on the boud. The case of Peck v. Acker (20 Wend., 605), cited by the plaintiff, does not apply. It does not appear that the bond in that case contained any such condition as that above set forth. The only point decided was that on special motion the court could not substitute for the attorney selected by the sheriff one named by the indemnitors. The bond in the present case may have been intended, by this express condition, to secure a right, which the indemnitors would not otherwise have had. It may have been injudicious for the sheriff to accept a bond with such a condition, especially if there were .other bonds of indemnity given. But with this we have nothing to do. There are some other questions of importance which it is not necessary to examine. The judgment must be reversed, and a new trial granted, costs to abide the event. Present — LeakNed, P. J., BoakdMAN and Bocees, JJ. Judgment reversed, and new trial granted, costs to abide event.