
    Patrick Cudahy et al., App’lts, v. Clarke D. Rhinehart, Sheriff, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed July 2, 1891.)
    
    1. Sheriffs—Attachment—Refusal to indemnify.
    The refusal of an attaching creditor to indemnify the sheriff, when called upon to do so, where the title to the attached property is in dispute, works an abandonment of the attachment as to such property in favor of a junior creditor who does so.
    2. Same—Indemnity bond.
    Where an attaching creditor, in writing, directs the sheriff to search for certain specified articles, and gives therewith a.bond general inform, such bond applies only to the property specified in the writing.
    3. Same—Estoppel.
    A sheriff is not estopped from objecting to the lack of proof that the goods which produced the fund in his hands were the property of the judgment debtor as against a judgment creditor who did not indemnify him.
    Appeal from part of a judgment rendered upon a trial by the court without a jury in favor of plaintiffs.
    Action to recover damages for a false return of execution in an action brought by plaintiffs against John H. Bani and Patrick H. Turner. The court rendered judgment in favor of plaintiffs for $520, and refused to allow judgment for the residue of plaintiffs' ■claim.
    The defendant, as sheriff, received three attachments against Bani and Turner, plaintiffs’ being the second in order. The title to certain property found by defendant being disputed, he demanded indemnity, which was given by the first and third attaching creditors, and he then levied under their attachments. Thereafter plaintiffs gave him a letter directing him to search for 100 tierces of tallow, and also a bond of indemnity general in form. The tallow was not found. The property levied upon was sold, and the proceeds of sale paid to the first and third creditors.
    The following opinion was delivered by the trial judge :
    Bartlett, J.—Chief Justice Brake, in his well known treatise on Attachments, laws down the law upon which the defendant relies in the present case, as follows:
    If there are several attaching creditors of the same property, and some give indemnity and others refuse to do so, the latter will be precluded from claiming the avails of the attached property, even though the attachments under the original writ were prior to those of the parties who gave indemnity. Drake on Attachment, 6th ed., § 189.
    The leading authority in support of this proposition is Smith v. Osgood, 46 N. H., 178.
    The opinion of the supreme court of New Hampshire in that case proceeds on the ground that the fruits of the litigation ought to go to those who have taken pains to secure them, rather than to those who stand by and make no effort to that end.
    I think the reason is applicable to the case at bar. The sheriff was justified in requiring indemnity from the several attaching creditors.
    The first and third indemnified him. He then levied on a portion of the goods. The evidence does not satisfy me that there was any earlier levy.
    It is true the deputy, Mr. Ringrose, speaks at first of having made a levy on August 16, 1889, but when all his testimony is read together it indicates that, although he saw some of the goods on that day, there was no actual levy until later, after the creditors, other than the plaintiffs, had given their indemnity bonds. As to the proceeds of the property thus taken I will follow the New Hampshire case of Smith v. Osgood, supra, and hold that the plaintiffs lost the priority of their attachment by failing , to indemnify the sheriff.
    But the plaintiffs subsequently did execute and deliver bonds of indemnity to the sheriff on the 17th and 23d of September, and on the 1st of October the sheriff made a further levy on five cases of goods. I cannot see why the plaintiffs were not entitled to their priority so far as these goods were concerned.
    After giving the bonds they were in the same position as the other attaching creditors in reference to goods subsequently levied upon, and could insist that the proceeds of such goods should be applied to their attachment in its order.
    The evidence does not show what amount was realized on this last .day, although it is stated in the brief of plaintiff’s counsel to have been about $500. Whatever it was, the plaintiffs are entitled to recover such proportion thereof as would have been applicable upon their attachment as the second in order of the three warrants in the hands of the sheriff. If the parties cannot agree as to the figures, further testimony will have to be taken on that point.
    Judgment accordingly.
    
      John J. Macklin, for app’lts; Hobbs & Gifford and Charles Putzel, for resp’t.
   Pratt, J.

—The court at special term correctly held that if there are several attaching creditors of the same property, the title to which is in dispute, and some give indemnity to the sheriff and others refuse to do so, the latter will be precluded from claiming the avails of the attached property, though their attachments may be prior in time to those who give indemnity. Smith v. Osgood, 46 N. H., 178; Parker v. Smith, 2 Liv. Law Mag., 770.

The case last cited seems exactly in point Here, as there, the title to the attached property being ambiguous, the sheriff refused to sell without indemnity, which the senior attaching creditor refused to give. There would be no propriety in giving the fund thus produced to the creditor who refused to act. The refusal to indemnify must be held to work an abandonment of the attachment as to the property in question in favor of the junior creditor, who was willing to take the risk.

We think, however, that the court below should have given a more extended application to the doctrine than was done.

It appears that the plaintiffs being informed that one hundred tierces of tallow might be found, instructed the sheriff to seek for them, and gave him indemnity to make the seizure. His instructions being in writing admit of no dispute; they were limited to the one hundred tierces, which were not found.

Later, certain other property was found, and on the indemnity of a creditor junior to the plaintiff was sold.

The sheriff having paid the proceeds to the indemnitor, the plaintiff now claims to recover from the sheriff $520, the amount thus paid, and in the court below prevailed.

We have carefully examined the testimony, and are not able to find that it affords any support to the claim now made that the indemnity given by the plaintiff could have been applied to any other property than the one hundred tierces.

The indemnity bond was general in its terms, and did not specify the particular property intended to be taken in reliance upon it. But the written instructions by which it was accompanied are explicit, and are limited to the one hundred tierces. It follows, that plaintiffs were erroneously allowed to recover the $520, proceeds of property attached upon the indemnity of the junior creditor.

Another point should not be overlooked. The plaintiffs introduced no proof that the goods which produced the $520 were the property of the judgment debtors.

The sheriff is not estopped from objecting to the lack of proof. As against the creditor for whom and by whose instructions he acted and whose indemnity he received, he could not raise that • question. The plaintiffs do not occupy that position.

The judgment appealed from must be reversed upon the facts and new trial ordered, with costs to appellant

Barnard, P. J., and Dykman, J., concur.  