Huzzard v. Nagle

The opinion of the court was delivered, by Lowrie, C. J. This contract of suretyship is, that Potteiger and Rice will save the sheriff harmless, in case he should levy on certain goods alleged to belong to the defendant in the execur tion, but claimed by another. .Did they do so? If not, what damage did the sheriff suffer by the default ? These are the true questions of the case. The answers are, that they appeared and made the best defence they could in the suit against the sheriff, and failed, and by compromise fixed the amount of the recovery. Then they did not save him harmless, but allowed him to be sufferer to the amount of that judgment; and therefore the bond [182] of the surety is broken, and a certain amount of loss sustained; and this is just what the surety engaged should not take place, or that he would pay for it if it did. The record of the suit against the sheriff was proper evidence to show that the very thing had happened which the surety contracted that his principals should not allow to happen. Of course it was not conclusive of the amount, for the surety might have shown that the amount was increased by reason of some fault of the sheriff, for which the bond was not intended to secure him. Judgment affirmed. Manderbach v. Nasle. For same reasons, Judgment affirmed.