
    * James Rutledge and others v. Daniel W. Corbin and others.
    .In an action brought upon an attachment undertaking by the payees and subsequent attaching creditors, some of whom had attached onhf part of the property while constructively in the hands of the sheriff: Held—
    1. That the parties having an interest as attaching creditors in the proceeds of the goods so attached, might be joined as plaintiffs in an action upon such undertaking, although not named as payees therein.
    
      X That the undertaking given to the first attaching creditors being for the forthcoming of the goods or their value in money, all creditors attaching during the pendency of the actions of the payees of the undertaking, acquired an interest in the undertaking for the satisfaction of their judgments.
    3. That where part of the property mentioned in the undertaking had been surrendered to the sheriff, and from the proceeds thereof all judgments of the creditors attaching all the property had been fully paid, the same would be a satisfaction of the undertaking; and,
    -4. That in such case it is error to render judgment against the sureties for the value of the goods not surrendered, for the satisfaction of judgments of creditors who only attached the property surrendered to the sheriff.
    Error to the district court of Lucas county.
    On the 17th day of December, 1853, four actions were commenced ■against one Paul Edwards, in the court of common pleas of Lucas county; one in favar of J. L. Knapp & Sons; one in favor of Daniel Salmon and Dwight O. Salmon; one in favor of Josiah P. Wright, Stillman A. Clark, James Brackett, Horatio M. Averill, and James W. Averill; and the fourth in favor of Joseph and William Blakely. Attachments were issued in all these cases, to the sheriff of Lucas county, against the property of said Paul Edwards.
    On the 19th day of December, 1853, another suit was commenced against said Paul Edwards in favor of Daniel W. Corbin and an .attachment was issued on the same day as in the other cases.
    By virtue of these five attachments, the sheriff seized a ■*large amount of property, most of which James Rutledge, one of the plaintiffs in error, claimed to own. The remainder, being but a small part of the whole, was claimed by one William Gildea, who has since died.
    0'n the said 19th day of December, 1853, said Rutledge, Gildea, and the other parties plaintiff herein, executed, under section 199 •of the code, the undertaking upon which the action below was brought, and of which the following is a copy:
    
      “ J. L. Knapp & Sons, Plaintiffs,
    
      v.
    
    Paul Edwards, Defendant.
    Josiah P. Wright et al., Plaintiffs,
    
      v.
    
    Paul Edwards, Defendant.
    Joseph and William Blakely, Plaintiffs,
    
      v.
    
    Paul Edwards, Defendant.
    D. & D. 0. Salmon, Plaintiffs,
    
      v.
    
    Paul Edwards, Defendant.
    Daniel W. Corbin, Plaintiff,
    
      v.
    
    Paul Edwards, Defendant.
    
      In Lucas Common-Pleas.
    
    “The following property, described in the inventory and appraisement hereto attached, marked A, having been attached in said actions, in the hands of James Eutledge, on five several orders—four of the first above-named dated December 17, 1853, and the last named one, December 19, 1853—we bind ourselves to the plaintiffs, J. L. Knapp & Sons, Josiah P. Wright and others, Joseph and William Blakely, D. & D. Salmon, and Daniel W. Cor-bin, in the sum of eleven thousand seven hundred and ninety-six dollars and twenty-eight cents, that the property, or its appraised value in money, shall be ^forthcoming to answer the judgments of this court in said several actions.
    “James Eutledge,
    “ Isaac M. Eeed,
    “Barnard McMullen,.
    “William G-ildea,
    “Lewis Schindler,
    “ Maxim Eoter,
    “Timothy Mattimore,.
    “Patrick Carey.
    “ .Toledo, December 19, 1853.”
    Upon the execution of this undertaking on the same day, the-said property was delivered by the sheriff to said James Eutledge.
    On the 20th day of December, 1853, another action was commenced against said Paul Edwards, in favor of Samuel 0. Ives, and an order of attachment issued, on which the sheriff made return, 
      i hat he had attached the same property subject to said above-named attachments.
    Afterward suits were commenced and attachments issued as follows :
    December 24,1853, in favor of James E. S. Fuller and Jerome Myers.
    January 17, 1854, in favor of John P. Kellogg, H. L. Kellogg, and John N. Squires.
    January 19, 1854, in favor of Patrick Tregent, Sen., and Patrick Tregent, Jun.
    On all these attachments the same, return was made as in the case of Ives, but under none of them did the sheriff take any jjossession of the property or any part of it, nor was any new undertaking given.
    At the March term, 1854, of Lucas common pleas, the attachments in all the cases commenced December 17, 1853, were discharged, leaving the case of Daniel W. Corbin, commenced on the 19th December, the only one of the cases in which said undertaking was given in which *the attachment had not boon discharged. In this case an order was entered at the same term that the sheriff repossess himself of the attached property. Under this order the ■sheriff again took into his possession all the property by him orig-, in ally attached, except, as appears by his return, goods valued'in the original appraisement at $1,537.46. This order was dated April 10, 1854.
    On the 6th of April, 1854, new attachments were issued in the cases of Josiah P. Wright et al., Joseph and William Blakely, and D. and D. 0. Salmon, three of the cases whore attachments had been discharged; and the sheriff returned that he had attached all the goods originally attached, except those which had not been delivered back to him under said order of April 10, 1854.
    On the 27th day of April, 1854, James Rutledge, claiming to be the owner of the goods which had been surrendered to the sheriff under said order, replevied the same from the sheriff. This action was tried at the December term, 1854, of Lucas common pleas, and judgment rendered in favor of Rutledge for a portion of the property, and in favor of the sheriff for the remainder, and damages were assessed in favor of the sheriff and against Rutledge, for the sum of $3,366-36., which judgment was afterward paid in full by Rutledge.
    
      After the commencement of this replevin suit, and the passing, of the property thereunder into the hands of James Rutledge, on the 23d of May, 1854, a suit was commenced against Edwards, and an attachment issued, in favor of Sperry & Hire; and on the 23d of June, 1854, J. L. Knapp & Sons, whose attachment of December 17,1853, had been discharged iu March, issued another attachment; and on both of these the sheriff returned that he had attached the same property originally attached, except that portion which had not been returned to the sheriff under said order of April 10, 1854. The sheriff did not take possession of any part of said property under either of these writs, but it remained in the undisturbed possession of Rutledge.
    *On the 5th day of October, 1854, the action on said undertaking of December 19, 1853, was brought in the common pleas-in the names, as joint plaintiffs, of all the above-named attaching creditors, against the plaintiffs in error, as makers of said undertaking.
    At the December term, 1854, a default was taken, which was-afterward set aside, and the defendant (plaintiffs in error) answered-
    At the December term, 1855, judgment was rendered in favor of the said defendants, from which the plaintiffs (defendants in error) appealed to the district court, where the case was tried at the April term, 1858, and judgment rendered in favor of the plaintiffs, and against the defendants, for $1,902.42. This judgment was for the appraised value of the goods not returned to the sheriff under the order of April 10, 1854 ($.1,537.40), and the interest thereon, being the same goods excepted, in the levies of April 6, May 23, and June 23, 1854.
    The bill of exceptions shows that on the trial to the court, the-defendants moved the court to dismiss the.case, for the reason that there was a misjoinder of parties plaintiff appealing on the face of the ¡^leadings. The court overruled the motion, and defendants excepted.
    The plaintiff's then proved the issuing and service of their several attachments, the recovery of judgments against Edwards in said-actions, and introduced in evidence the order of April 10,1854, and the return of the sheriff thereon, showing the non-delivery to him of the $1,537.46 in value, of the goods originally attached.
    Defendants then proved the replevy by Rutledge, the judgment in favor of the sheriff, and the payment of said judgment, and that the sheriff in said action recovered and collected an amount more than sufficient to pay the judgment in favor of said Corbin against Edwards.
    “ Thereupon the court held that an action was properly brought in the names of all the plaintiffs in the action, as having, by their attachments therein, an interest in the ^proceeds, and that the defendants were bound to said plaintiffs for the appraised value of all the property not delivered to the sheriff under said order, oi otherwise, in discharge of all the judgments in said actions, in the order in which the attachments were issued and served upon the property. To which ruling of the court the defendants excepted.”
    The court gave judgment; defendants moved for a new trial, which was overruled, and the defendants excepted, and now seek to reverse the judgment.
    The errors assigned are that the district court erred:
    1. In refusing to grant the motion of the defendants (plaintiffs in error) to dismiss said action, for the reason that there was a misjoinder of parties plaintiff appearing on the face of the pleadings,
    2. In proceeding to try said cause upon the pleadings as they stood, without amendment.
    3. In holding that said action was properly brought in the name of all the plaintiffs in said action.
    4. In holding that all the parties plaintiff in said action had, by their attachments, an interest in the proceeds of said property, and that the defendants were bound to all said plaintiffs for the appraised value of all the property not delivered to the sheriff, in discharge of the judgments in favor of all the plaintiffs.
    5. In holding that those parties who issued their attachments, after the giving the undertaking sued upon in said actions, and those whose attachments, although served before that time, were afterward discharged, had any right to sue the defendants upon said undertaking, or recover anything against them in said action.
    6. In not holding that the claim of said plaintiff, Corbin, had been fully paid and discharged.
    7. In giving judgment for plaintiffs.
    8. In not giving judgment for the defendants.
    9. In refusing to grant a new trial.
    
      *Hill & Pratt, for plaintiffs in error:
    
      Bassett & Kent, for defendants in error.
   Sutliee, J.

The1 first question presented for our consideration is the right of joinder of the plaintiffs in the action.

The provisions of the code are as follows:

“Seo. 34. All persons having an interest in the subject of the action, and in obtaining the relief demanded, may be joined as plaintiffs.”

In order to'correctly determine this question it is only necessary to ascertain what was the subject of the action, and how the parties stood related to it.

The subject of the action is the attachment undertaking, given under section 199 of the code. That section provides that “the sheriff shall deliver the property attached to the person in whose possession it was found, upon the execution by such person, in the presence of the sheriff, of an undertaking to the plaintiff, with one or more sufficient sureties resident in the county, to the effect that the parties to the same are bound in double the appraised value thereof, that the property, or its appraised value in money, shall be forthcoming to answer the judgment of the court in the action; but if it shall appear to the court that any part of said property has been lost, or destroyed by unavoidable accident, the value thereof shall bo remitted to the person so bound.”

The undertaking so required and given is not for the delivery of the property, or in default to pay the judgment merely, but, in default of delivering the property, to pay the value thereof. The party to whom the sheriff so redelivers it thereby receives and holds it as the bailee of the sheriff; and the property is still, in contemplation of law, in the possession of the sheriff, so far as subsequent attaching creditors are concerned. Hence, it is provided *by section 202, that “ whore the property is under attachment, it shall be attached under subsequent orders as follows: . . . . If it be personal property, it shall be attached as in the hands of the'officer, and subject to any previous attachment.”

And again, under section 222: “The court may compel the delivery to the sheriff for sale of any of the attached property for which an undertaking may have been given, and may proceed summarily, on such undertaking, to enforce the delivery of the property, or the payment of such sum as may be due upon the undertaking by rules and attachments, as in cases of contempt.”

And under section 223: “ The court may order the sheriff to repossess himself, for the purpose of selling it, of any of the at-tacked property which may have passed out of his hands without having been sold or converted into money; and the sheriff shall, ■under such order, have the same power to take the property as he would have under an order of attachment.”

It thus appears that the object of the undertaking is to secure the property, or its value, to satisfy any judgment that the court may render in favor of the creditors who may have attached the .same, either at the time the undertaking was so given, or after the redelivery of the property by the sheriff, and while the property remained constructively in his possession. And the undertaking being to the first attaching creditors for the forthcoming of the property or its value, the undertaking inured to the benefit of subsequent attaching creditors upon the same property, which was •constructively in the hands of the sheriff; and such subsequent attaching creditors, although not named parties in the undertaking .as payees, had a beneficial interest in the undertaking; being, in their order, respectively entitled to the fruits of the undertaking, the proceeds of the property on its salé, or of its value so secured by the undertaking.

*It follows, therefore, that the subsequent attaching creditors had an interest in the subject of the action, and in obtaining the relief demanded by the action upon the undertaking, and might properly be joined as plaintiffs.

But while this view of the case disposes of the objection for misjoinder, expressed in different forms by assignments one, two, and three, there remains to be considered the other objection to the holding of the district court, in relation to the amount recoverable in such action.

From what has already been said, it appears that the right of action upon the undertaking extends'to all subsequent attaching «creditors, attaching the property while so constructively in the possession of the sheriff. The right of action upon the undertaking ■does not, however, extend to any other attaching creditors than those who either actually or constructively attach, the property, and only as to such property so attached. .

The record discloses the fact, that on the 10th of April, 1854, all the goods redelivered by the sheriff, except $1,537.46, were returned to the sheriff Such return was in compliance with the terms of the undertaking, pro tanto, as to the amount of goods returned; .and if all the goods had been then returned, the same would have been a fall satisfaction of the undertaking, and no action could ever thereafter have been maintained upon the undertaking. But inasmuch as $1,537.46 in value of the goods had not been returned, the undertaking remained in force for that amount, if the same-sh<¡ uld be found necessary for the satisfaction of the judgments of any creditors having attachments thereon ; and that, too, whether the attachments had been actually made, or should thereafter be made during the pendency of said actions, and while the same was so constructively in the possession of the sheriff. But the parties to the undertaking being sureties, their undertaking can not be held to extend, by implication, beyond the terms of the contract. And the terms of their contract, as expressed, is, that the property or its appraised value-*in money, should be forthcoming to answer the judgments-of the court in said several actions. But the judgment of the court in those actions could only be affected by other judgment creditors who should attach the same property, as stated, during the pendency of the actions so before commenced. But the record discloses,, in this case, the fact that the goods were, to the amount of $3,366.66,. returned to the sheriff, and that he has recovered in an action of replevin that sum for the goods so returned to him. To that fund, and no other, have the creditors who only attached those goods-represented by that fund, a right, according to their respective priorities, to look for the satisfaction of their judgments. Now, while it appears from the record that the amount realized by the sheriff, from the goods so returned to him, was more than sufficient to pay the judgment of Corbin and that of Ives, two of the creditors attaching all the goods prior to their delivery to the sheriff, as to the other creditors so attaching, there is nothing in the record showing the amount of their judgments. It does not, therefore, appear whether the amount realized by the sheriff from the goods delivered to him April 10, 1854, was in fact sufficient to satisfy all subsisting attachments at that time upon all the goods. It does, however, appear, as to all the attaching creditors who attached after the return of the, goods on April 10, 1854, that their attachments were respectively only made upon the goods so returned, and not upon the $1,537.46 worth of goods which had not been returned. And it further appears from the record, that the district court rendered judgment in favor of the plaintiffs, against the defendants in that court, for the value of the goods not delivered to the sheriff, without proof of any deficiency in the proceeds of the goods delivered; ($3,366.66) to satisfy all the judgments of creditors, whose attachments were actually upon all the goods.

Eor this cause, the judgment of the district court must *be reversed, with costs, and the case remanded to that court for further proceedings.

Judgment accordingly.

Brinkerhoee, O. J., and Scott, Peck, and G-holson, JJ., concurred.  