
    West and others vs. Tuttle.
    In an action on the case against a sheriff, for giving up the custody of a vessel taken on an attachment under the act authorizing the arrest of ships or vessels, without requiring the bond prescribed by the statute, it is not necessary to show a judgment against the vessel in rem—a judgment in personam against the owner of the vessel, in favor of the attaching creditors, is enough to render the sheriff liable.
    This was an action on the case, tried at the Greene circuit in October, 1831, before the Hon. James Vanderpoel, one of the circuit judges.
    The defendant was sued as sheriff of the county of Greene, and the injury charged was, that one of the deputies of the defendant, after attaching a sloop called the Hoaxer, upon due proof obtained by the plaintiffs under the act authorizing the arrest of ships or vessels, released the sloop, and contrary to law and in violation of his duty, permitted her to be taken out of his custody, and to proceed on her voyage. The plaintiffs averred in their declaration that the bond prescribed by the statute in such cases, upon the execution of which the attaching officer is authorized to discharge the vessel, was not entered into, and that their demands remain unpaid. The defendant pleaded non cul. On the trial of the cause, the plaintiffs proved the attachment, with the sheriff’s return endorsed, that he had seized and taken the sloop as direeled, and proved that the deputy, without having taken the bond required by the statute to be taken in such cases, had permitted the vessel to be taken out of his custody. The plaintiffs also proved (subject to objection) that their attorney was told *by the sheriff that a bond had been executed, and that the vessel was released and gone ; and that about the time of being so informed, their attorney received a notice from an attorney of this court that he was retained by Dudley Deming, the owner of the sloop Hoaxer, to defend against the claims of the plaintiffs, from whom, after filing a declaration in the case, a plea was received ; that the cause was heard by referees, upon which hearing Dudley Deming and his counsel appeared and contested the demands of the plaintiffs ; that the referees reported in favor of the plaintiffs, and a judgment was entered upon such report. After hearing the evidence thus taken, subject to objection, the judge decided it to be incompetent. The plaintiffs then offered in evidence the record of a judgment in favor of the plaintiffs against Dudley Deming, for the amount of the sum reported by the referees to be due to the plaintiffs, together with the costs of the suit, and also offered in evidence an execution upon such judgment, with a return of nulla bona endorsed thereon. The record contained a declaration, setting forth that the sloop Hoaxer was attached, to answer unto the plaintiffs, according to the form of the statute ; and it was then alleged that on, &c., at &c., at the request of Dudley Deming, owner and captain of the vessel, the plaintiffs did certain work and labor in and about the repairing of the vessel, and found materials, &c., to a large amount, to wit, &c., and that Deming had not paid, &c. To this declaration, Dudley Deming, owner of the sloop, &c., put in a plea, denying the allegations in the declaration; whereupon the cause was referred, and a report made by the referees that there was due to the plaintiffs from the defendant a certain sum ; upon which report judgment was entered that the plaintiffs do recover against the said owner, <§-c., Dudley Deming, the said sum of, &c., and also a certain other sum for the costs and charges, &c. amounting in the whole to, &e., and the said owner, Dudley Deming, in mercy, &c. To the admission of which record and execution in evidence the counsel for the sheriff objected, insisting that a judgment in personam against Dudley Deming was incompetent evidence in this action, and that the sheriff could be charged only by the production #of a judgment in rem against the vessel; and the objection was sustained by the judge. Whereupon the plaintiffs were nonsuited, who now ask for a new trial.
    J. Gaul, jun. for the plaintiffs.
    J. L. Wendell, for the defendant.
   By the Court,

Savage, Ch. J.

On the trial, the judge nonsuited the plaintiffs, on the ground that by taking judgment, against the Owner of the vessel, and not against the vessel itself, he had discharged the sheriff from his liability. In this the judge was clearly wrong. The record shows a proceeding commenced by attachment against a vessel; the owner appeared and pleaded, and judgment was entered against him, and not against the vessel. It was the duty of the sheriff to have kept the vessel, or to have taken a bond ; he has done neither. Had he kept the vessel the plaintiff would have levied his execution upon it. He should not have discharged the vessel without a sufficient bond. The record shows what the cause of action was, and the proof offered was sufficient to sustain the action.

Nonsuit set aside and new trial granted; costs to abide the event.  