
    Joseph J. O’Donohue, Resp’t, v. Zachariah E. Simmons, App’lt.
    
      (Supreme Court, General Term, First Department,
    
    
      Filed December 29, 1890.)
    
    1. Indemnity—Sheriffs—Charge.
    In an action on a bond of indemnity, the court, after charging that the sheriff would lose his indemnity in case of misconduct of the auctioneer employed by him, charged that the jury “ought to be thoroughly satisfied that the conduct of the auctioneer was not merely negligent or careless, not a mere oversight. Before concluding that the sheriff should lose his indemnity because of the auctioneer’s acts, you should be quite satisfied that the latter was acting in bad faith and was guilty of misconduct tending to affect the sale seriously. In other words, the element of fraud here comes in, and the misconduct on the part of the auctioneer which would destroy the indemnity should be carefully distinguished from mere carelessness or oversight.” Held, error.
    3. Same.
    In protecting the rights of his indemnitors the sheriff is bound to use reasonable diligence and care, and fraud need not be shown to release the indemnitors.
    3. Trial—Charge.
    In a civil case the jury need not be thoroughly satisfied of any fact claimed to be proved, and it is error to charge that they must be so satisfied.
    Appeal from judgment entered on verdict after trial at circuit.
    
      A. Kling, for app’lt; J. M. Smith, for resp’t.
   Per Curiam.

This action was brought to recover upon an indemnity bond given to the sheriff, indemnifying him against seizing, under execution, property which he judged to belong to the defendant.

The two important questions which were presented upon the trial were, first, whether the defendant had ever executed and delivered the bond set forth in the complaint; and, secondly, whether the negligent and illegal acts of the sheriff had not discharged the defendant from the terms and conditions of the hand.

This action has been tried three times. The record presents only one question which requires notice.

The bond of indemnity to the sheriff upon which the suit is brought was designed to protect that officer against the consequences of his official acts, particularly his act in taking the goods which he judged to belong to the defendant in the execution.

It was not intended to afford protection in case of any misconduct or violation of duty by the sheriff or his agents, and the court so held on the previous appeal.

The appellant now insists that the learned judge who presided at the trial committed an error which calls for a reversal of the judgment because of the following charge:

“If a sheriff takes a bond of indemnity and employs a competent and proper auctioneer to sell the property it may seem to you to be a hardship that the sheriff should lose his indemnity because that auctioneer misbehaves himself. Now, while I do lay that down as a rule of law, yet I think it fair to say to you that you ought to be thoroughly satisfied that the conduct of the auctioneer was not merely negligent or careless, not a mere oversight. Before concluding that the sheriff should lose his indemnity because of the auctioneer’s acts, you should be quite satisfied that the latter was acting in bad faith and was guilty of misconduct tending to affect the sale seriously. In other words, the element of fraud here comes in, and the misconduct on the part of the auctioneer which would, destroy the indemnity should be carefully distinguished from mere carelessness or oversight.”

The learned counsel for the appellant excepted to the portion of the charge just quoted, in which it was stated that something more than negligence on the part of the auctioneer must be shown, to make the sheriff liable in discharging the bond of indemnity.

We think that this portion of the charge was in conflict with the opinion of the court upon the previous appeal.

The court, also, in stating to the jury that they should be thoroughly satisfied that the conduct of the auctioneer was not merely negligent or careless, was giving them an incorrect standard as to the conclusiveness of proof. In a civil case the jury need not be thoroughly satisfied of any fact claimed to be proven. If there is a preponderance of evidence in favor of the fact they are bound so to find whether they are thoroughly satisfied or the proof is conclusive to their minds or not

And, furthermore, the charge was incorrect instating that fraud must be shown in order that the indemnity should be lost.

There might be negligence and carelessness of the grossest kind without its amounting to fraud, and in fact such negligence pr carelessness may amount to misconduct without the element of fraud entering therein. And the rule laid down upon the previous appeal was that if any property was lost by the misconduct of the officer the sureties would not be liable. It was not laid, down that fraud must be shown, but simply that unless the officer executed his process with fidelity and with reasonable diligence he could not claim his indemnity. In attempting to import the element of fraud into the consideration of this question, the fact seems to be lost sight of that the indemnity is given to the sheriff for his protection in the execution of the process; and in protecting the rights of his indemnitors he is bound to use reasonable diligence and care. If he is careless or negligent in the execution of the process he cannot claim indemnity against those persons who have agreed to stand between him and loss provided he executes the process with due care and diligence.

By the instruction referred to the jury were necessarily misled, and for this error the judgment must be reversed and a new trial ordered, with costs to appellant to abide event.

Van Brunt, P. J., and Bartlett, J., concur.  