
    Swezey v. Lott.
    
      Duty of Sheriff where property is replevied.
    
    A sheriff levied upon sufficient property to satisfy his execution; an adverse claim being made, the plaintiff indemnified him; the claimant then replevied the goods, giving the undertaking required by law, but failed to establish title to them; in a suit against the sheriff for not returning the execution, it appeared, that the goods had been eloigned: held, that it was the duty of the sheriff to have prosecuted the sureties in the claimant’s undertaking, without an indemnity from the plaintiff in the execution; and that he could not set off the costs of the replevin suit against his prima facie liability to such plaintiff.
    Appeal from the general term of the Supreme Court, in the second district, where a judgment of the City Court of Brooklyn in favor of the plaintiff, had been reversed.
    This was an action by Swezey, who survived his cóplaintiff, against Lott, late sheriff of King’s county, for not returning an execution for $161.23 against one Jenkins.
    Under his writ, the defendant levied upon sufficient ^property to satisfy the execution; but the goods were claimed by one Mary Turner. The plaintiff gave the sheriff a bond of indemnity in $500 to save him harmless in proceeding upon his writ. The claimant, thereupon, replevied the goods, and gave the undertaking required by the code; but, on the trial, failed to establish her title, and there was a verdict and judgment for the defendant. The jury found the value of the goods to be $500, and the defendant’s costs were taxed at $136.32. An execution having been issued on this judgment, the coroner returned that the property had been eloigned, and that Mary Turner had “ no goods ” out of which the execution could be made. It did not appear that any suit, had been brought upon the claimant’s undertaking.
    The defendant’s counsel contended, that the suit of Mary Turner was a sufficient excuse for the non-return of the execution; and that the defendant had a right to set off the costs of the replevin suit, by way of counterclaim. The court declined so to instruct the jury, -but charged them that the return of the executian against Mary Turner, unsatisfied, was not per se an excuse to the sheriff for not returning his writ, as he had failed to show an enforcement of the undertaking, which took the place of the property levied on. The defendant’s counsel took an exception; and a judgment entered upon the verdict in favor of the plaintiff having been reversed, on appeal to the supreme court, and a new trial awarded, the plaintiff appealed to this court, stipulating for judgment absolute in case of affirmance.
    
      Ackley, for the appellant.
    Campbell, for the respondent.
   Denio, J.

The supreme court was of opinion that, as the bond of indemnity which the plaintiff had given to the defendant, as sheriff, did not extend to an action on the undertaking, and would not have afforded an indemnity against costs in such, an action, the defendant was justified in omitting to do anything further, after the return of the execution against Mary Turner, unsatisfied. In this, I think, the court fell into an error. The bond was given in consequence of the claim of Mary Turner that the property1" levied on belonged to her. By executing the bond, the plaintiffs assumed the whole risk which the sheriff would incur in consequence of that claim, and the defendant then proceeded to execute thvfi.fa. The result of the replevin.suit showed conclusively that her claim was unfounded, and that the property really belonged to the judgment-debtor. The undertaking given by the plaintiff in the replevin had then become the equivalent for the property; and though, in form, it ran to the coroner, the defendant was entitled to maintain an ac^on uPon it, and could claim to have it assigned to him. *(2 R. S. 533, § 64; Acker v. Finn, 5 Hill 293.)

I do not find any provision of law which would entitle the plaintiffs, who had no property, general or special, in the goods, to an assignment of the undertaking. By an arrangement between them and the defendant, they might, no doubt, have taken upon themselves the burden of prosecuting the undertaking, and it would not have been unreasonable in them to have done so. But, in point of law, the further duty of pursuing the remedy on the undertaking belonged to the defendant, as sheriff, and this duty he neglected for more than a year after the return of the execution against Mary Turner. There is nothing in the case to show that the sureties were not abundantly responsible, or that the money could not have been collected, if the defendant had enforced the undertaking.

It seems, that, at common law, an action on the case would not lie against the sheriff, for an omission of duty in the execution of process of this kind; but the statute has given an action-to the creditor against him for not returning the execution, and the settled doctrine of the courts is, that where it has not been returned, he is, primd facie, liable for debt, but may mitigate the damages, by showing that the defendant had no property of which the judgment could be levied. Where, as in this case, there ivas sufficient property, and he has not made the money, nor returned the execution, nor shown any sufficient reason why he has not done so, he is chargeable ivitli the debt. (Bank of Rome v. Curtis, 1 Hill 275; Pardee v. Robertson, 6 Id. 550; Ledyard v. Jones, 4 Sandf. S. C. 67; s. c. 7 N. Y. 550.)

It has been urged, that it might happen, that an action by the defendant against the sureties would be fruitless, as they may have become insolvent, or may have justified fraudulently, and that the sheriff might thereby incur the expense of an action for which he would have no indemnity. This might, no doubt, so turn out; but it is one of the burdens of the office which the defendant assumed, and for which he can only be compensated by the other advantages which the office confers. The duty of proscuting the undertaking to judgment and execution was as obligatory as the levying upon *the defendant’s property in the first instance. Upon the proof in this case, there was nothing to raise a doubt as to the result of such a prosecution, nor any reason for calling upon the plaintiffs, to furnish an indemnity against any possible loss which might be sustained.

There was no ground upon which the counter-claim could be allowed. Upon the comprehensive terms of the bond, it is true, that the obligors might be liable for the expenses of the suit, though the judgment was against Mrs. Turner; but until the remedy on the undertaking shall be shown to be fruitless, it cannot be said, that the defendant has suffered any loss or damage in consequence of her claim to the property, or her action for its recovery. I am in favor of reversing the judgment of the supreme court, and affirming that of the city court.

Judgment accordingly.  