Bartlett v. Hunt

By the Court, Cole, J. The counsel for the appellants assumes in his argument that it was necessary, by the law as it existed under the revised statutes of 1849, that there should be a direct recovery against the sheriff for his default or misconduct in office, before a suit could be maintained on his official bond. The sureties, it is claimed, were only liable after the remedy against the sheriff had been exhausted. It ap [217] pears to us tbat tbis assumption is unfounded. Sec. 77, chap. 10, R. S., 1849, prescribes the conditions of tbe bond wbicb the sheriff was required to give. It was conditioned, among other things, that the sheriff should well and faithfully perform- and execute the duties of his office. And there was a breach of the bond whenever he failed to do this, for whi<?h he and his sureties were liable. There is nothing in the statute which requires a party first to recover judgment against the sheriff for any default, before resorting to an action on the bond. In this respect our statute is unlike that which existed in New York when the case of The People vs. Spraker et al., 18 Johns., 389, was decided; see also Ex parte Chester, 5 Hill, 555. If our statute had required a party to exhaust his reme • dy against the sheriff before resorting to the bond, then it might be said that the legislature could not change this liability of the sureties, and make it direct and primary where before it was contingent. But such was not the case. By chapter 196, Laws of 1860, a party aggrieved by the misconduct of the sheriff, whether before or after the passage of that law, was required to apply to the circuit court of the county where the bond was filed, or to the judge thereof in vacation, for leave to prosecute the bond. It is conceded that such leave was obtained in this case. It is claimed that the motion for nonsuit should have been granted because there was no proof that a valid execution had ever been issued in the case of Bartlett vs. Larrabee, and placed in the hands of the sheriff to be executed. This objection is not sustained by the record. There was certainly clear and direct testimony upon that point, namely that of Mr. Edmonds. He swears that an execution was issued and a levy made undejr it. It was competent, we suppose, to show these facts by this witness after it appeared that the execution was burnt up. The other grounds for the nonsuit are equally untenable. It is further insisted that the verdict is irregular. The jury found, in substance, that "the condition of the bond was broken, and as [218] sessed tbe plaintiff’s damages for tbe breach. We do not see any valid objection to this form of tbe verdict. It is also claimed that tbe evidence showed that the sheriff acted in every respect in obedience to the orders of the attorneys of the plaintiffs in the execution. . If it had been established to the satisfaction of the jury that the sheriff omitted to make sale of the property levied upon in consequence of directions which he received to that effect from the attorneys of the plaintiffs, the verdict would probably have been otherwise. No instruction was asked upon that point, and the question whether the sheriff acted in obedience to the orders of the attorneys or not, with other matters, was left to the determination of the jury upon the evidence. As we discover no error in the record, the judgment of the circuit court is affirmed.