
    CLAPP a. SCHUTT.
    
      Supreme Court, First District;
    
    
      General Term, May, 1865.
    Liability of Bail.
    The sheriff has no cause of action against bail who have failed to justify, until he has sustained damage from his own liability as bail consequent on such failure.
    Bail who have been excepted to by a party to an action, and have failed' to justify, are not liable to such party on the undertaking.
    
      
      It seems, that the sheriff may assign his rights against hail who have failed to justify, and that the assignee may recover thereon for damages actually accrued •to the sheriff.
    Appeal from a judgment on a demurrer.
    The complaint showed that, on the 23d May, 1862, the plaintiffs commenced an action in this court against Smith M. Coope and Fisher, and on that day Mr. Justice Barnard granted an order for the arrest of the defendants Coope and Fisher, holding them to bail in the sum of $500; that, on the 18th day of June, 1862, the sheriff, under such order, arrested the defendant Coope; that, on the 10th day of July, 1862, Coope, with the defendants in this action, became bail to the sheriff, by which they “ undertook that the said defendant Coope should, at all times, render himself amenable to the process of this court during the pending of the said action, and to such as might be issued to enforce the judgment thereinthat, on the 19th July, 1862, the plaintiff excepted to the bail, and the bail failed to justify; that, on the 6th of October, 1862, judgment was obtained in the action against Coope and Fisher for $518.74 damages and costs; that, on the 6th of November, 1862, an execution on the said judgment was issued to the sheriff of the city and county of New York against the defendants Coope and Fisher, and returned unsatisfied ; that, on the 9th day of January, 1863, an execution on the judgment was issued against the body of the said Coope, which execution was, by the sheriff, returned not found; and that, on the 16th day of March, 1863, the sheriff, for a good consideration, assigned the undertaking on the arrest to the plaintiffs, who demand judgment against the sureties on the undertaking.
    To this complaint the defendants demurred, on the ground that the complaint did not state facts sufficient to constitute a cause of action. '
    
    The demurrer came on trial at the October .Term, 1863, before. Mr. Justice Clerke, who gave judgment for defendants on the demurrer, from which judgment the plaintiffs appealed.
    
      R. M. Harrington, for the appellants.
    I. The allegation of the complaint is, that the defendants duly executed and delivered to the sheriff an undertaking, &c., in due form of law, by which they undertake, &c. This undertaking is in strict compliance with section 187 of the Code. There seems to be no doubt of the right of a plaintiff in an action, who has taken an exception to bail given on the part of a defendant, to sue on the undertaking, although the bail fail to justify; and more especially where he proceeds (as in this case) with an assignment of the rights of the sheriff. But the Code has changed the character of the bail. The bail now taken answers to the bail below and bail above under the old system. The Code adopted the Massachusetts, Maine, and New Hampshire system of bail. (Note A of Tidd’s Practice, 4th Am. ed., Vol. i., p. 248, and cases cited.)
    “ The bail thus given answers the purpose of bail below and bail above, at common law.”
    The undertaking has written in it the contract of the bail; there is no provision in it that it shall be void if excepted to by the plaintiffs. The contract is written out and subscribed by the party, and the courts cannot engraft upon it any new provisions.
    
      Samuel Jones and J. F. Malcolm, for respondents.
    I. The complaint alleges that the sheriff delivered .to the plaintiffs a copy of the undertaking, taken upon the arrest of the defendants ; that within the time allowed by law the plaintiffs served upon the sheriff a notice that they did not accept the bail taken upon the arrest, and that the bail did not justify. That discharged these defendants as bail in the action. (9 Wend., 477.)
    
    II. If the plaintiffs had served no notice upon the sheriff, or after service of notice the bail had justified, and there had been a breach of the conditions of the undertaking, their right of action would, have been perfect without any transfer from the sheriff. The plaintiffs were the parties for whose benefit this undertaking was taken, but the necessary steps to invest them with the title thereto never happened. It was an inchoate right, subject to be made perfect upon their justification.
    HI. By the 201st section of the Code, upon a state of facts as presented by the complaint, the sheriff is declared liable as bail to the party aggrieved; and the same section says how the sheriff may discharge himself from such liability. He cannot discharge that liability to the plaintiffs, or his official duty to these defendants, by assigning the undertaking, and shifting it upon parties who cannot relieve themselves.
    
      IV. The statute that charges the sheriff with liability as bail, also invests him with certain rights—that is, he can put in bail and surrender the principal: these defendants cannot1 do that. If the sheriff should surrender the principal, he would discharge himself of the debt, and he would be only liable for the costs of the action against himself as bail. (Buckman v. Carnley, 9 How. Pr., 180.)
    V. The sheriff had no assignable rights in this undertaking, he is not named as a party to it. If the bail justified and there was a breach of the conditions, it was then the property of the plaintiffs, and they had a right of action upon the instrument itself, without the intervention of the sheriff.. The statute, in that case, does not give the sheriff the custody of the instrument^.
    VI. If the bail on the arrest fail to justify, the sheriff is bail, and the sheriff has no cause of action upon it as an undertaking in the action. His cause of action is given him by statute upon the fact that the bail did not justify, and they are only liable to him for the damages he may sustain by reason of their omission to justify. (Code of Pro., § 203, 1 Hill, 59.)
    VII. The sheriff can have no cause of action until he has been damnified.
    VIH. By the 2d Revised Statutes, 3d edition, pages 441 and 443, section 11, the bond was to be given to the officer making the arrest, with the addition of his name of office; and by the 12th section, if default was made in the condition of the bond, it was to be assigned to the plaintiff, if he requested, by the sheriff. By the 19th section, the court would stay the proceedings against the sheriff until he had time to obtain judgment upon the bond taken upon the arrest; and by the former practice it was optional with the party whether he would take the assignment of the bond or prosecute the sheriff. The Code gives him no option. It has declared that, in a case as presented by this complaint, the sheriff is liable as bail. There is no provision in the Code that the sheriff may assign an undertaking, as was in the old statute about assigning bonds. (Sartor v. Merceques, 9 How. Pr., 188; Metcalf v. Stryker, 10 Abbotts' Pr., 12.
   By the Court.—Ingraham, P. J.

I do not deem it necessary to decide in this case whether the sheriff may or may not assign the right of action which he may have against the bail. I can see no reason why, after that right has become perfect, and he has a claim for damages on the undertaking, he may not assign that right to a third person. I think, however, other views of this case are decisive of the question raised on the demurrer.

The bail originally put in were excepted to, and did not justify. They did not therefore become responsible to the plaintiffs, and the sheriff became liable as bail in the action. (Section 201 of the Code.) From this liability he can he discharged by puttibg in other bail.

By the 203d section, the bail, in case they do not justify or other bail is not given, become liable to the sheriff, by action, for damages which he may sustain by reason of such omission. (Section 203.)

This section is intended to secure the sheriff against the consequences of a failure to justify, or to put in other bail. The liability he assumes is to be bail himself, and he has a right to recover from the original bail the damages which he sustains by reason of that liability.

It is apparent, therefore, that he has no action against the bail, until he has sustained damage from the liability as bail which the law imposes upon him. His right of action is not to recover for not putting in bail or surrendering the principal, but for damages which he may sustain by reason of such omission to justify, &e.; and until he has sustained such damage, he has no right of action against the bail. In this respect the liability of the bail is different from that under which the bail to the sheriff were liable under the old system. They were liable if they did not put in bail in the action. Under the present system, the liability is for the damages which the sheriff has sustained.

From what I have said, it is easy to define what the complaint should contain to make out a sufficient cause of action. It is not only the facts preliminary to giving the undertaking, the neglect to justify, or substitute other bail, and the recovery of judgment in the original action, with the execution and return ; but, also, that the sheriff has sustained damage in the action, and a statement of what that damage was.

This would be necessary to enable the sheriff to recover in his own name. It would, be just as necessary if the plaintiff as assignee could maintain an action.

In this respect the complaint demurred to is defective. There is no averment of any damage, nor is it even averred that the sheriff has in any respect been damaged, and without that there is no cause of action stated.

The demurrer in this respect is well taken, and the judgment should be affirmed.  