Evans v. Collar

Campbell, J. This suit was brought on an indemnity [434] bond given to plaintiff to indemnify him for the service of a writ of execution on a judgment in favor of George E. Collar against Julia Hirschfield. Plaintiff levied on personal property which belonged to her, but which was exempt, and Bhe sued him, and recovered damages for its conversion. The bond recited the judgment, and that plaintiff had levied on property claimed by other persons than the defendant in the writ. The condition was to save harmless and indemnify plaintiff for taking and selling goods and chattels which he or his assistants “ shall judge to belong to the said adverse parties.” The property here belonged to the defendant in execution, and not to third parties. The sheriff could not demand indemnity for such property, and was bound to know what his duty was in regard to any claim of exemption. He did not procure indemnity against any such claim on behalf of Mrs. Hirschfield. The bond is in no way ambiguous, and cannot be applied to anything beyond its terms. The judgment below, holding to the contrary, was erroneous, and must be reversed, with costs, and a new trial granted, inasmuch as the bond is not so set out in the declaration as to show the variance. Sherwood, ü. J., Champlin and Long, JJ., concurred. Morse, J., did not sit.