
    CASE 45 — PETITION ORDINARY —
    FEBRUARY 25.
    Green vs. Hackley, &c.
    APPEAL PROM GARRARD CIRCUIT COURT.
    To entitle an officer to the protection which the indemnifying bond of tbe plaintiff in the execution affords him, against the consequences of any violation of the rights of others which he may eommitin levying upon, or in the sale of, person-
    • al property.under such execution, he must show a strict compliance on his part with the several conditions on which alone such protection is allowed. Those conditions are, that ho shall have taken and returned the indemnifying bond, and that the surety therein was good when it was taken. Each is indispensable to the sufficiency of his defense. {Civil Code, secs. 709, 711.)
    An execution was levied on the 13th of April upon personal property. The claim•ant, on the 22d of the same month, commenced an action against the officer and others‘to recover the value of the property, and damages for an alleged assault upon the claimant, and the forcible seizure of the property, and on the next day (the 23d,) a bond of indemnity was executed to the officer by tbe plaintiff in the execution, and the sale of the property thereupon made by the officer. It did not appear that the bond bad been returned. Held — that the bond does not present a bar to the action against the officer for the property taken.
    Squire Turner, for appellant,
    cited Civil Code, secs. 709, 711, 44, 42, 43, 710; 15 B. Mon., 449.
    A. A. Burton, for appellees,
    cited 15 B. Mon., 449.
   JUDGE .DUVALL

delivered the opinion of the court:

Lydia Green filed this petition on the 22d April, 1858, in • which, and in an amendment subsequently filed, she charges that she was the owner and entitled to the possession of a horse and bridle, and that the defendants, Hackley, Bruner, Comely, and Murphy, made a violent assault upon her person, doing her considerable injury, and at the same time forcibly and wrongfully took out of her possession and carried off the horse and bridle mentioned, and converted the same to their own use, for which several injuries she claims damages.

Hackley answered, alleging, that as deputy of the sheriff of Garrard county, he had in his hands an execution in favor of his co-defendant Bruner, against A. Green, for $155, and that on the 13th of April, 1858, he levied this execution on the horse and bridle claimed by the plaintiff, as the property of A. Green, and sold the same on the 23d April, 1858, but that on the same day, and before making the sale, he required Bruner to execute a bond of indemnity, which was given, with H. Evans as surety, who was then and still remained good for the amount of the bond ; that the execution and bond had been returned to the clerk’s office, and he therefore asks that as to him the action be dismissed.

The other defendants answered jointly, setting up substantially the same matter of defense; and state that when the levy was made by Hackley, they, at his command, assisted in carrying away the property levied on, using no more force than was necessary, and doing the plaintiff no injury.

Upon the trial the plaintiff introduced several witnesses, who proved that she was the owner of the horse and bridle levied on by the officer, and that the same were then in her possession, and who also proved the personal violence and injury complained of.

The defendants gave in evidence the record of the suit and judgment in favor of Burner against A. Green, the execution which issued thereon, and which was levied on the horse and bridle claimed by the plaintiff, and also the bond of indemnity executed by Bruner and Evans. To the reading of this bond the plaintiff objected, but the objection was overruled, and she excepted.

Various instructions were asked by the plaintiff, and refused by the court, and at the instance of the defendants the following instruction was given :

“The sheriff having taken and returned to the proper office a bond as required by law, if the jury shall believe, from the evidence,-that the surety was good and solvent at the time of ■taking the -bond, the .plaintiff cannot recover, in this action, damages for the property taken, but must look to the bond for indemnity for th,e-property.” Other instructions were given by the court, which it is not necessary to notice.

There was a-verdict and judgment in favor of plaintiff against Bruner for one cent in damages, and in favor of the other defendants for their costs. From that judgment the plain- . tiff has appealed.

The prineipal'question in the case, and the only one we shall consider is, whether the court, in the instruction given, correctly stated the legal effect and operation of the bond of indemnity executed by Bruner and his surety.

As has already,-been shown, the levy of the execution upon the property claimed by the appellant was made the 13th April, 1858; this action to recover the value of the property, and damages for the alleged assault, was commenced on the 22d of the same month, and on the next-day the bond of indemnity was executed,-and the sale of the, property thereupon made by the.officer. When the bond was returned does not appear, nor does it appear, indeed, except from the answers of the defendants,that it was ever returned at all.

It is insisted, on the part of the. appellees, that under the.provisions of the Civil Code, regulating, the proceedings upon executions and distress warrants, the indemnifying bond, although executed after the action had. been commenced, did, nevertheless, constitute a bar-to the further prosecution of the action, so far, at least, as the claim for the value of the property seized was involved.

The section'of the Code mainly relied on as sustaining this proposition is as follows :

“The -claimant'or purchaser of any-property, for the seizure or sale of which an indemnifying bond has been taken and returned by-the officer, shall be barred of any action against the officer levying on the property, if the surety in the bond -was good when it was taken. And such claimant or purchaser may maintain an action upon the bond, and recover such damages as he may be entitled to.” (Sec. 711.)

By a previous section, (709,) if an officer who levies, or is required to levy, an execution upon personal property, doubts whether it is subject to the execution, he may give to the plaintiff therein, or his agent or attorney, notice that an indemnifying bond is required, and bond may thereuppn be given by or for the plaintiff, with sufficient sureties, to the effect that the obligors will indemnify him against the damages he may sustain in consequence of the seizure or sale of the property, and will pay to any claimant thereof the damages which he may sustain in consequence of the seizure or sale* &c.

Thé object of these provisions was two-fold : First. To protect the officer against the consequences of any violation of the rights of others, which he might commit in the levy of, or sale under, an execution; and secondly. To prevent multiplicity and cii’cuity of action, by requiring the injured party to seek redress, not against the officer, but against the party immediately liable to the officer on the bond, and upoii whom the ultimate responsibility for the injury is thus made to rest.

But to entitle the officer to‘ this protection he must show a strict compliance, on his part, with the several coziditions on which, alone, it is allowed. Those conditions are, that he shall have taken and returned the indemnifying bond, and that the surety therein was good when it was taken. Each is indispensable to the sufficiency of the defense authozúzed by section 711.

The reason for requiring a return of the bond to the proper office is manifest. The party whose propei’ty has been wiongfully seized under an execution against another, has an inane- * diate right of action to recover damages commensurate with the injury. But against whom may he proceed ? The law affords him the means of determining this question with the utmost cértainty. He has only to ascertain, by inquiring at the proper office, whether the indemnifying bond has been taken and retuzmed or not. If it has been, he is thereby, in the lánguage of the statute, “bari’ed of any action against the officer,” and must resort to an action upon the bond. If not, he may proceed at once against the officer, and all others aiding in the commission of the trespass, without incurring the hazard of being thereafter “barred of his action” by the subsequent taking and return of the bond.

That this is the only fair, just, and- reasonable construction oí the statutes in question is strikingly illustrated by the case before us. The plaintiff was, as she avers, and as the proof tends to show, forcibly deprived of the possession of her property. After the lapse of more than a week she brought her action against the parties who committed the trespass, including the officer and the plaintiff in the execution. Her cause of action was then complete as to all the defendants. No indemnifying bond had been taken or returned, and there existed, therefore, no bar or obstruction to the assertion of her right to redress. But after her suit is brought, the bond is taken, is set up and relied upon in the answer of the officer, and of the plaintiff in the execution, and upon this defense the claimant is turned out of court, subjected to the costs of the suit, and remitted to her action on the bond.

This is certainly extending the principle of official protection beyond any of the objects intended to be accomplished by the enactment. The mischiefs resulting from the interpretation contended for are seen in the uncertainties and delays to which it would, in most Scases, subject the claimant of the-property, and the undue advantages it would confer on the officer and the plaintiff in the execution.

We have not deemed it necessary to consider or determine the effect of those sections of the Code which, in substance, provide for substituting the plaintiff in an execution as defendant, in place of the officer w'ho levies it, in an action brought against the officer for the property taken in execution. (Sections 42 to 44, inclusive.) The defense authorized by those sections was not relied upon, none of their principal requirements were complied with, and they therefore have no application to the case as presented.

It results from the view we have taken, that the instruction given by the court was erroneous, and the judgment is therefore reversed, and the cause remanded for a new trial and further proceedings not inconsistent with the principles of this opinion. ‘  