
    [No. 583.
    Decided January 29, 1889.]
    John B. Standley v. David Marsh.
    SHERIFFS AND CONSTABLES — 'WRONGFUL LEVY — INDEMNITY FROM EXECUTION CREDITOR.
    A sheriff who, under express directions of a creditor, attaches property pointed out to him by the latter, and does not know or have notice that it is the property of another than the debtor, may recover indemnity of the attaching creditor after judgment against the sheriff for the wrongful levy.
    
      Appeal from District Court, Whitman County.
    
    Action by David Marsh against John B. Standley to recover indemnity for a judgment obtained against plaintiff as sheriff. Judgment for plaintiff, and defendant appeals.
    
      Allen & Crowley, for appellant.
    
      Doolittle, Pritchard & Lehman, for appellee.
   The opinion of the court was delivered by

Allyn, J.

David Marsh, as sheriff of Whitman county, September 15,1884, attached 270 sacks of wheat at the instance of John B. Standley, plaintiff in the suit of Standley v. George W. Landes. October, 1885, one Seat began an action for the unlawful detention of, and damage to, the wheat while thus attached and held by the sheriff, and on December 20,1886, secured a judgment for $25 and costs; the whole amounting to $383.25. This amount the sheriff now seeks to recover from Standley, the attaching creditor. Judgment was had for the sheriff, Marsh, and the defendant appeals.

The pleadings are not all in the record; and while the argument of appellant is largely upon the theory that the sheriff, was guilty of negligence, and was therefore alone liable, from what is before us of the record, and the amount of the judgment, etc., we are fairly satisfied that the judgment against the sheriff was a nominal one, and was not given for any negligence proven. Looking at the case in this view, there is but one question we need consider; and that is, whether a sheriff taking property under a writ of attachment at the direction of a creditor, and guilty of no negligence or want of care himself, may call upon the attaching creditor for indemnity after a judgment has been given against him for such wrongful levy; i. e., whether or not a promise of indemnity will be implied from the direction of the creditor to levy upon certain property pointed out by him. It is undeniably true that if the sheriff knows the property he is directed to levy upon belongs to another, or if notice is given him of such claim, it is his duty to secure indemnity before levying, or he should refuse to act. He would be held to voluntarily assume the risk if, under such circum - stances, he neglects to call for indemnity, and equally would he be alone liable for willful neglect in caring for property after he had taken it. But from the record before us we do not consider this case to have embraced in it any of these essentials. On the contrary, as we view it, the sheriff under express directions of the creditor, attached property pointed out to him by the creditor, and did not himself know or have notice that it was the property of another than the debtor. Having been guilty of no willful neglect or wrong, should he alone suffer, and not be allowed relief against the creditor, whose directions to him caused the damage, and which directions he is bound to follow in the absence of knowledge of their wrongfulness?

Freem. Ex’ns (2d ed.), 894, says: “If the sheriff follows plaintiff’s directions in doing an act, not known to him to be unlawful, and is thereafter compelled to respond in damages because of the act, he may recover from the plaintiff the amount so recovered from him;” citing a number of authorities, as Humphrys v. Pratt, 2 Dow & C. 288, 5 Bligh (N. S.), 154; Sanders v. Hamilton, 3 Dana, 550; Stoyel v. Cady, 4 Day, 222, 226. There can be no doubt but that, a writ being given a sheriff with special directions, be is bound to serve it, and follow such directions. See Ranlett v. Blodgett, 17 N. H. 298 (43 Am. Dec. 603). And equally, that from the directions given to serve it in a particular manner, a promise will be implied in law from the creditor to the sheriff to hold the latter harmless of the natural results of obeying such directions. Bond v. Ward, 7 Mass. 123, 5 Am. Dec. 28, and note, with cases cited; Gower v. Emery, 18 Me. 79. Also, Ball v. Badger, 6 N. H. 405, and Marshall v. Hosmer, 4 Mass. 60, 63.

We are agreed that in this case the sheriff acted carefully and properly, and from the specific directions given him a promise of indemnity is implied sufficient to sustain the action brought by him in this case. We may further add that the evidence satisfies us that the defense made by the sheriff to the suit for damages by Seat was made through attorneys whom he did not employ, but who were self-evidently employed by and acting for Marsh. In fact Marsh made all the contest that was made; and the judgment of $25 and costs referred to was entered by consent of Marsh (and his attorneys), who, though not known to the record, was the actual party in interest throughout. The judgment below is correct, under the principle above announced, and is clearly just.

Let the judgment be affirmed.

Burke, C. J., and Nash, J., concur.  