
    Cook vs. Boyd.
    APFEAL FROM MONTGOMERY CIRCUIT.
    Boyd sued out an attachment against Bruce, and pi aced it in the hands of the sheriff. Bruce tendered to the sheriff his bond, to abide and perform the judgment of the court, with Hanley as surety.— The sheriff not being willing to take the surety, Bruce procured Cook to sign the bond, also. Hanley was released on -non est factum: held that though the attachment had not been levied, the bond was binding on Cook as a common law bond.
    The facts of the case are stated in the opinion of the court. — Rep.
    
      R. Apperson for appellant—
    The bond sued on was presented to Cook, with the name of Bruce as principal, and Hanley as surety. The sheriff having the attachment in his hands, was not willing to accept Hanley alone, as surety; Cook then signed as a joipt surety for Bruce. Hanley was released on the plea of non est factum. It is insisted that Cook is not bound; to bind him, will be imposing upon him a greater liability than he intended to incur, when he signed the bond. In Chitty on Contracts■, last edition, page 528, it is said: “If a person sign a promisory note as surety, upon the representation that another person would also become a party to it as surety, no liability would be incurred by the former to the payee, if the other proposed surety refused to join in the instrument; unless the objections were expressly waived by the former, who signed it.” (See also, Leif. vs. Gibbs, 4 C. and P. (166.) The case put by Chitty is not so strong as this case; here the name of Hanley was to the obligation, when it was presented to Cook by the sheriff, whose duty it was to take the bond. He signed, supposing he was co-surety with Hanley. In this transaction, the^heriff acted as the agent of the plaintiff. Whether the sheriff knew whether or not Hanley had signed the bond is not material.
    
      H. Daniel on the same side—
    It does not appear that the sheriff ever levied the attachment of Boyd vs. Bruce. If he did not, he had no right to take the bond. (Code of Practice, 235,6,7,8.)
    By sec. 232, Code^ of Pi actice, the sheriff is directed to “ return on every order of attachment what he has done under it.’.’ The return must show the property attached, the time it was attached; and the disposition made of it. The return of the sheriff on the attachment is in these words: “ Executed on W. S. Bruce, and Lindsey & J)orsey, by giving each a true copy o'” the within writ of attachment. See bond enclosed.”
    Suppose me sheriff had returned that he could find no property on which to levy the attachment, and had taken and returned the bond sued on? Would it have been binding? Had the sheriff any right to take it, would it not have been without consideration and void? It is supposed it would. Cook never intended to be bound alone, but jointly with Hanley; and it will be hard to compel him to meet a responsibility he did not intend to incur.
    
      Chiles for appellee—
    It is said by counsel for appellant, that the bond taken by the sheriff was unauthorized, and therefore not obligatory on Cook, the surety; and the Code of 
      
      Practice, sec. 235, 6, 7, 8, are cited. Bat by a refer» ence to sec. 242, this language will be found: “ If the defendant at any time before judgment, causes a bond to be executed to the plaintiff, by one or more sufficient sureties, to be approved by the court, to the effect that the defendant shall perform the judgment of the court, the attachment shall be discharged, &c.” The subsequent section, 243, reads as follows : “ The bond mentioned in the last section, may in vacation be executed in the presence of the sheriff, having the order of attachment in his hands; or after the return of the order, before the clerk, with the same effect upon the attachment, as if executed in court. The sureties in either case to be approved by the officer. ”
    The bond in this case was taken by the sheriff “ in vacation;” he held the order of attachment; Bruce caused the bond to be executed to the plaintiff, with surety, in the penalty of $400, with the condition that “Bruce shall perform the judgment of the court. ”
    It could not be necessary to levy the attachment. The papers show that bond was given, attachment issued, and the bond of Bruce and Cook given, all the same day. Bruce chose to give the bond without the form of a levy, to abide the judgment of the court. The execution of the bond rendered a levy unnecessary. It cannot be essential to the obligatory force of the bond, that a formal levy should have been made.
    Cook is estopped to deny a consideration, unless he show fraud or force in its obtention. {Jones fyc., vs. Prewitt, fyc., 3 Marsh. 302; Stevenson vs. Miller, 2 Lit. 310; Fitzhugh vs. Lyle, 9 B. Monroe, 561; Me Chord vs. Fisher’s heirs, 13, B. Monroe, 195.)
    The sheriff was not the agent of plaintiff in procuring the surety to sign; Bruce tendered the bonds and surety; the sheriff did not procure Cook to sign; it was Bruce. No reason is perceived why the case should not be affirmed.
    
      Boyd sued out an attachment against Bruce, and placed it in the hands of the sheriff; Bruce tendered to the sheriff his bond, to abide & perforin the judgment of the court with Hanley as surety; the sheriff not being willing to take the surety, Bruce procured Cook to sign the bond also; Hanley was released on non est factum: Held, that though the attachment had not been levied, the bond was binding on Cook as a common law bond.
    January 11.
   Judge Crenshaw

delivered the opinion of the Court.

Whether the attachment, under which the bond in this case was taken, had been levied or not, it was in the hands of the sheriff, and the obligors in the bond had a'right to regard it as levied, orto dispense with its levy, and to execute abond to the plaintiff to pay the debt, in order to prevent alevy. A bond thus to be executed, does not seem to be withiu the contemplation of the constructors of the Code of Practice. But, although it was not executed in pursuance, and in accordance with the provisions of the Code, there not appearing to have been any levy of the attachment, the obligors, Cook and Bruce at least, saw proper to execute it, and thereby prevent a levy; and it is a good common law bond, and obligatory upon the defendant, Cook, unless he can be exonerated by the matter set up in his defence.

His defence, we think, cannot avail him. The names of Bruce and Hanley had been signed to the bond, when it -was presented to him for his signature; and he may have supposed that the sheriff had discharged his duty, in being present, and in seeing that the name of Hanley had been properly placed to the bond ; but, if deceived in this respect, it was not at the instance, nor was it the fault of the plaintiff. Nor should the sheriff, in our opinion, be regarded as the agent of the plaintiff in taking the bond, so as to render the plaintiff responsible for the neglect of duty on the part of the sheriff. The sheriff was the officer of the law, to whom the plaintiff was bound to entrust the execution of his attachment, and, after the delivery of the attachment into his hands to be levied, the plaintiff concerned himself no further with it, trusting to the officer whom the law had appointed for the purpose, to discharge his duties, and to execute his attachment. The sheriff, instead of making a levy in obedience to the command of the writ, suffered the defendant therein to execute a bond with surety to pay the debt. This bond was not executed at the instance of the plaintiff but at the instance of Bruce, the defendant in the attachment, with whom Cook united as surety. The sheriff in this intance, was rather the agent of the obligors in the bond, than the agent of the plaintiff. The bond was executed at the instance of Bruce, and for his relief from the attachment; and it was at his instance that Cook became an obligor therein.— Under such circumstances, we do not think it right that the plaintiff should be prevented from looking to the bond for indemnity, and be turned round to an action against the sheriff, for any supposed breach of duty on his part; but rather, that the defendant, Cook, if deceived and injured by a neglect of duty by the sheriff, should seek redress from him. Besides, although Cook alleges that he signed the bond because the name of Hanley was to it, and states that he would not have done so, but upon the supposition that Hanley’s name was rightfully subscribed, he offers no proof whatever that the name of Hanley was worth anything. Hauley may have been worth little or nothing; at any rate, the sheriff esteemed him insufficient surety for $400.

The principle mentioned in Chitty on Contracts, to which we have been referred by counsel, is not very definitely stated, and does not, we apprehend, apply to the facts of this case. If any assurances are held out by the obligor in a bond or note, to one whose signature he is about to procure, that others are also to sign the same; or, if the obligor present to him a note or bond with the signature of others, upon the faith of which he also signs the same, and these assurances are violated, or, the signatures already to the instrument are not genuine, the principle mentioned might be applied with some propriety.— But, in a case like this, where the obligor has done nothing to deceive the party, we do not think the principle ought to be applied.

Wherefore the judgment is affirmed.  