
    JOHN REILLY, et al., as Executors, etc., Appellants v. RUFUS DODGE, et al., Respondents.
    
      Indemnity bond to sheriff touching acts of deputy.
    
    This action was brought upon a bond of indemnity, executed by the defendants, in the penalty of $10,000, and conditioned to save harmless the plaintiffs’ testator as sheriff touching the acts of the defendant Dodge, as deputy sheriff. The plaintiffs’ case and the amount of defendant’s liability were substantially admitted by the pleadings and admissions of counsel, unless the affirmative defence set up was established, namely: That on November 28, 1877, the defendant McDermott notified plaintiffs’ testator that he declined being surety for defendant Dodge from that date. That thereafter Dodge procured a new bond to be executed bearing date December 1, 1877, which bond was delivered to plaintiff’s testator, and substituted for and in the place and stead of the bond sued upon, and thereupon defendants were Released, etc. Held, that there is no evidence in the case that the plaintiffs’ testator, Bernard Reilly, was notified, prior to the commission of the acts complained of, that defendant Mc-Dermott declined longer to be a surety for defendant Dodge. Service of a notice to that effect upon the under-sheriff November 28,1877, was not service upon the sheriff. Section 56, Art. 5, Tit. 2, Chap. 3, Part 3, Revised Statutes does not apply to a notice given by a surety. The notice of the surety is not required to be served on the sheriff as such. If valid for any purpose, it can only be made so by service upon the person indemnified individually, and not as an official, for in legal effect the bond was to Bernard Reilly and not to Bernard Reilly as sheriff. The acceptance of the new bond. February 5, 1878, certainly discharged the sureties of the former bond, but this discharge was operative only from the date of the acceptance of the new bond. The action of the under-sheriff in notifying Dodge to get another bondsman, and that he should receive no new business, did not operate to prevent Dodge from exercising the office of deputy sheriff by virtue of the process given to him and did not release the sureties from their obligation, and it was, in fact, while he was exercising the office that the acts complained of were committed and before the new bond was accepted. The sureties were liable generally upon the bond and the plaintiffs were entitled to judgment accordingly.
    Before Sedgwick, Ch. J., Truax and Dugro, JJ.
    
      Decided April 6, 1891.
    
      Appeal from a judgment entered upon the report of a referee dismissing the complaint, with costs.
    
      Frederick Hemming, attorney, and Henry Thompson of counsel, for appellants.
    
      Louis M. Doscher, attorney for respondents Dodge and Sauer.
    
      W. W. Westervelt, attorney for respondent McDermott.
   By the Court.—Dugro, J.

There is no evidence that the plaintiffs’ testator, Bernard Reilly, was notified prior to the commission of the acts complained of that McDermott declined longer to be a surety. Service of the notice upon the undér-sheriff was not service upon the sheriff. Section 56, Act 5, Title II, Chap. Ill, Part III, Revised Statutes, does not apply to a notice given by a surety. The notice of the surety is not required to be served on the sheriff as such. If valid for any purpose it can only be made so by service upon the indemnified individually, and not as an official, for in legal effect the bond was to Bernard Reilly not to Bernard Reilly, as sheriff.

The acceptance of the bond of February 5th certainly discharged the former sureties, but this discharge was only, operative from the date of the acceptance of the later bond.

The condition of the bond in suit is that if the defendants keep harmless Bernard Reilly, touching the execution of such orders, etc., as shall be delivered to the defendant, Rufus Dodge, during the time the said Dodge “ shall or may, by virtue of the warrant aforesaid, use or exercise the * * office of deputy sheriff,” the bond shall be void, otherwise not, etc.

The action of the under-sheriff in notifying Dodge that he should receive no new business, did not operate to prevent Dodge from using and exercising the office of deputy sheriff by virtue of the warrant, for it was in fact while he was exercising the office that the acts complained of were committed. The exercise of the office of deputy by Dodge, was always more or less controlled by the sheriff, and always properly limited by the business assigned him.

It was stipulated that if the sureties should be determined to be generally liable upon the bond, the amount of the recovery should be the sum of $985.02 with interest from June 6, 1885; the liability of the defendant Dodge to follow the stipulation as to amount.

The sureties were liable generally upon the bond, and the plaintiffs were entitled to judgment accordingly.

Judgment reversed, order of reference vacated and a new trial ordered, with costs to abide the event.

Sedgwick, Ch. J., and Truax, J., concurred.  