Charles v. Haskins

Baldwin J. The first position assumed by appellees is, that the right of Hattenbach to recover' of the sureties of Haskins, being in the nature of a tort, is not assignable. The tort, in this case, was merged in the judgment, prior to the assignment. A judgment is assignable and the assignee thereof may sue thereon in his own name. Edwards v. Montgomery, 1 Iowa 143; Weave v. The City of Davenport, ante. The next question presented for our consideration is, whether the judgment against Haskins is a bar to the right of plaintiff- to. recover, as against the sureties, upon the official bond. The judgment against Haskins is merely a liquidation of (he damages Hattenbach sustained, and we can see no good reason why this act of the assignor of plaintiff, in s -eking to make the amount of his claim out of the principal would release the sureties. The relation existing between the sheriff and his bondsman is that of principal and sureties. And, although under our statute a party aggrieved by any breaches of the bond, may sue the princi [335] pal and sureties together, yet he is not compelled so to do. Nor by his election to sue the sheriff alone is he precluded his remedy against the sureties. The next and most important question for our consideration is, whether the sureties of a sheriff are liable for á trespass committed by their principal in attempting to discharge his duty as such officer. Upon this question the authorities are somewhat in conflict. In the case of The People v. Schuyler, 4 Com. 173, this question is fully discussed and a majority of the court held that the sureties were so liable. In the case of Strunk v. Ochiltree, decided at the the present term of this court, it was held that the sureties of a constable were liable for a trespass committed by him by virtue of his office. The conditions of a sheriff’s bond are the same as those of constable; each being given under and in conformity with the provisions of the same statute. We are of the opinion that the current of authorities indicates the correctness of the ruling of the court in that case, and without the further elaboration of this point so fully discussed in the case of The People v. Schuyler, supra, and the cases there cited, we hold that the sureties, in this case, are liable. It is further submitted that the bond being given to the “People of Woodbury county” is not such a bond as would make the defendants liable, there being no obligee oí the contract; no such person or corporation known to the law. A mistake of this character will not vitiate the security. See section 2506 of the Code. The court below erred in sustaining the defendant’s demurrer. Judgment reversed.