
    Stevens, late sheriff, &c. against Boyce and Daley.
    NEW YORK,
    Oct. 1812.
    In an action bL'cTgivii to the sheriff to and indemni“foV,touching fig thTexecuti°n cesses, writs,” pvty^hc. the replication assigned as a the defendant a“d 'suffered him to go at sufficient1 bail.; pkintiff‘"had.6 been attached ing in tlie hail7’ been^o-a'llTtainsum7 and was dam-defendant re-lo'ok sufficient cT'd ecuted the A?B.°nforhis an^wasT’at the time,good hie, ixc. On rejSer1’was insufficient T and the bond, ’assumed every _ _ risk which the law attached to the execution of process, one of which was the continued responsibility of the bail to the arrest.
    THIS was an action of debt, on a bond given to the plaintiff, as sheriff of W'ishington county, dated 7th March, 1810; conditioned that Boyce, his heirs, &c. should, at all times, &c. save and keep harmless, and indemnify the plaintiff) sheriff &c. for touching and concerning the return and execution of all such processes> writs, and warrants, of what nature soever the same might kS; as should be directed to the sheriff of the county of Washing-Ion, and executed by the said Boyce, as his deputy, and of and from.all issues, fines, Sec. and for and concerning the not executing, or wrongfully executing, or detaining in his hands, any such writ, &c. as shall be delivered to him to be'executed as deputy-sheriff, &c. and from all damages for the escape of any person, &c. and that the said Boyce should truly account for and pay to the ab sucb sum and sums of money as he, the said Boyce, should, as deputy-sheriff, levy and receive,” &c.
    The defendants pleaded, that the defendant Boyce did save and been harmless the plaintiff, &c. and did account and pay over, &c. according to the condition of the bond, and did truly perform the condition, &c.
    The plaintiff replied, that the defendant did not save and keep harmless the plaintiff, &c. and did not account and pay, Sec, and did not keep and perform the condition of the said bond, Sec. but failed to do so, in this, that after the execution of the -said bond, and while the said Boyce remained the deputy of the plaintiff, Sec . on the Hth June, 1810, at, Sec- a writ of capias ad respondendum was sued out of this court, in behalf of F. Purdy against D. Richardson, tested, Sec. and directed to the sheriff of Washington commanding him, Sec. which writ came to the hands of the sarfl Boyce, as deputy-sheriff, who, before the return day, executed it, and arrested Richardson, but, then and there, suffered him, without sufficient bail, to go at large, Sec. and the plaintiff was, b7 a rule of lbe court ordered to bring in the body of the said Richardson, Sec. of which the said Boyce was duly apprized and had notice: and the body of the- said Richardson not being ” brought in, &c. an attachment was issued against the plaintiff, of which the defendant, Boyce, had due notice, &c. that the plaintiff was taken on the attachment, and was under the necessity of paying, in order to obtain his discharge, the sum of 293 dollars and 39 cents, &c. &c.
    
      Rejoinder, that Boyce arrested Richardson, on the cep íes, 8?c. and, according to the statute, took bail for his appearance, at the return of the writ; and that, on that occasion, one George Ackley, of, &e. became bail, &c. and executed a bail-bond with the said Richardson, for his appearance, &c. and which bail-bond was in ihe possession of the plaintiff; and the defendants averred, that the said Ackley, at the time he executed the bail-bond, had sufficient to answer, &c. and was good and responsible, of all which flic sheriff had notice, &c.
    To this rejoinder, there was a demurrer, and joinder in de=iaarrer.
    
      Z. R. Shepherd, in support of the demurrer.
    
      J. Russel, contra.
   Per Curiam.

The rejoinder is no answer to the breach assigned in the replication. The sheriff under the statute, may require two sureties in the bail-bond, though the bond is good with one only. He, however, takes the securities (whether one or more) at his peril, and in this- case the defendants had assumed that peril by their bond, for they engaged to save the plaintiff harmless “ for, touching and concerning the return and execution of all processes, writs,’'" &c. And the harm which the plaintiff states in this case, arose touching or concerning the execution o£ a writ. These words were intended to throw the whole peril attending the execution and return of process, by the deputy, upon the deputy. They were not to be confined to eases where the deputy liad failed in good faith and due discretion, but to all the risks which the law attached to the execution of process, and one risk is the permanent and continued-responsibility of the bail tc the arrest. The sheriff runs that risk, and the bond throws that risk upon the deputy, as to acts performed by Mm. The plaintiff is, consequently, entitled to judgment.

Judgment for the plaintiff.  