
    Dabney v. Catlett.
    November, 1841,
    Richmond.
    (Absent Tucker, P„ and Brooke, J.)
    Indemnifying Bond — Provision for Protection of Purchasers Omitted- — Case at Bar. — Sheriff on seizure of chattels under a ii. fa. takes Indemnifying bond under statute 1 Rev. Code, ch. 134, § 25, with condition to save sheriff harmless, and to pay and satisfy any person claiming title to the property, all damages he may sustain by the seizure and sale; omitting to provide also, as required by the statute of 1828, Supp. to Rey. Code, ch. 215, § 1, that the obligors shall warrant the title of the property sold under the execution to the purchaser thereof at the sheriff’s sale: Heijo, the bond is defective and not good as a statutory bond; but it is good at common law, and the sheriff may maintain an action on it for indemnity against damages recovered against him by the owner of the property seized and sold.
    
      Debt by Dabney, late sheriff of Gloucester, against Catlett, in the circuit superior court of that county, for 300 dollars, the penalty of a bond with collateral condition. *The bond was dated in 1837, and was executed by Catlett and one Howlett since dead. The declaration counted on and made profert of the bond in the usual form, and set out the condition in hasc verba: “The condition of the above obligation is such, that Whereas J. Catlett assignee of J. Howlett hath sued out of the circuit superior court of Gloucester, two writs of fi. fa. against the goods &c. of’J.-Dutton upon judgments obtained in the said court, which writs with the legal costs attending the same amount to 191 dollars, and whereas T. Dabney, sheriff &c. hath levied the same on the following property, [specifying, among ■ sundry other chattels, one grey mare] and a doubt arising whether the right of the said property is in the said Dutton, the sheriff hath required of the said Catlett bond to indemnify him pursuant to the statute in such case made and provided; now, if the above bound Catlett and Howlett shall indemnify the said Dabney against all damages which he may sustain in consequence of the seizure and sale of the property on which the said execution has been levied, and moreover shall pay and satisfy to any person or persons claiming title to said property, all damages which such person or persons may sustain in consequence of such seizure or sale, then the said obligation to be void.” And the declaration assigned the following breach of the condition, that the right of the property in the grey mare was in one Booker, and the same was not liable to seizure or sale under the executions; and that Booker, in an action against Dabney the sheriff, recovered 62 dollars with interest &c. for damages by Booker sustained by reason of the seizure and sale of a grey mare part of the property so levied on and sold, and 32 dollars costs of suit, as would appear by the record of that suit; and that Dabney had paid Booker the full amount of the judgment so by him recovered, which neither the said Catlett nor the said Howlett, nor the representatives of the said Howlett, or either of them, have paid *to the said Dabney, though thereto often requested. By reason whereof action accrued to the said Dabney to demand and have of the said Catlett the said sum of 300 dollars (the penalty of the bond). Nevertheless &c.
    Catlett took oyer of the bond and condition, and demurred generally to the declaration.
    The court held that the law upon the demurrer was for the defendant Catlett, and gave him judgment: to which this court allowed Dabney a supersedeas.
    Stanard, for plaintiff in error.
    The circuit superior court erred in sustaining the demurrer. The bond was not a good statutory bond under the statute of 1819, 1 Rev. Code, ch. 134, § 25, p. 533-4, as amended by the statute of 1828, Supp. to Rev. Code, ch. 215, \ 1, p. 272, which requires, that the condition of every indemnifying bond that should afterwards be taken by a sheriff in virtue of the former statute, shall contain a further provision “that the obligors shall warrant and defend to the purchaser or purchasers of the property such estate or interest therein as shall be sold under the execution or other processand the condition of the bond in this case omitting the additional provision required by the last statute, the sheriff could not defend himself against the action of Booker the owner of the property, by pleading, under the 27th section of the statute of 1819, that he had taken and returned an indemnifying bond. But though the bond was not good as a statutory bond, it was a good common law bond, and bound the obligors to indemnify the sheriff, and therefore he was entitled to his action. Hewlett v. Chamberlayne, 1 Wash. 367; Johnstons v. Meriwether, 3 Call 523; Beale v. Downman, 1 Call 249; Crawford v. Jarrett’s adm’r, 2 Leigh 630.
    The attorney general, contra. The action against the sheriff for seizing and selling the property under Catlett’s executions, was brought by Booker, the owner *of the property so seized and sold. The indemnifying bond taken by the sheriff was a perfectly good statutory bond so far as Booker the owner was concerned, though it omitted the provision in favour of the purchaser at the sheriff’s sale required by the statute of 1828. Therefore, no action lay for Booker the owner against the sheriff for seizing and selling his property : an action lay for him, on the indemnifying bond, against Catlett and his surety, and it may yet be prosecuted, under the statute of 1819, 1 Rev. Code, ch. 134, § 26, 27, p. S34. In assigning the breach the declaration does not positively aver, that there was a seizure and sale of the property, but only that the property was not liable to seizure and sale under the executions.
    Stanard. The breach was assigned in the very words of the condition; and that was sufficient. Craighill & al. v. Page, governor &c., 2 Hen. & Munf. 446.
    
      
      Indemnifying Bond — Provision for Protection of Purchasers Omitted — Syllabus in Principal Case Disapproved. — The syllabus in the principal case, in so far as it states that an indemnifying bond which does not contain the additional statute: y requirement for the protection of the purchaser of the property
      
        is not a g-ood statutory bond for any purpose, and therefore could furnish no protection to the sheriff against the action of the claimant of the property, is wholly unauthorized by the action of the court, and is expressly repudiated by Judge Adi/en in Aylett v. Roane, 1 Gratt. 284, where he says: “It would seem from the abstract of the reporter, that it is supposed this court has decided in the case of Dabney v. Catlett, 12 Leigh 383, that a bond which does not contain this additional covenant, is not a good statutory bond for any purpose; and therefore could furnish no protection to the sheriff against the action of the claimant of the property. That was a proposition insisted on by the appellant’s counsel in that case, for the purpose of his argument; \>ut no such decision was made, or intended to be made by the court. That was a suit instituted by the sheriff, upon a bond of indemnity similar to the one under consideration- The declaration after setting out the condition, charged that the claimant of the property had sued the sheriff, and recovered damages from him; which he was seeking to recover from the obligors. There was a general demurrer to the declaration, which was sustained by the court below. This court reversed the judgment, overruled the demurrer, and remanded the case. Mo reasons were given, but it is apparent that, whether the bond was good as a statutory, or a common law bond, the demurrer should have been overruled.- If good as a statutory bond, as I think it was, so far as the -claimant of the property was concerned, that did not deprive the sheriff of his remedy on it. The law permitting the sheriff to require a bond of indemnity, was in ease of the sheriff; to relieve him from the responsibility which at common law rested on him. It is to be made payable to him, and is to contain a provision for his indemnity. Unless the act had contained a provision, authorizing a third person to put it in suit in the name of the sheriff, he alone could have sued upon it.
      “When he has taken a good bond, the law protects him from the action of the party claiming the property, unless the securities in the bond become insolvent. But this is matter of defence, which the sheriff may rely on or not, at his election; and his failure to set it up in a suit against him by the claimant of the property, does not change or diminish the liability of the obligors in the bond. They are bound to indemnify the sheriff, as well as to pay the claimant of the property any damages he may sustain. When the claimant recovers his damages from the. sheriff, they are damages sustained by the sheriff in consequence of the seizure and sale of the property, for which the obligors are bound to indemnify him. Any other construction would render the condition to indemnify the sheriff himself supererogatory. The court, therefore, without entering into the question whether the bond was a good statutory or common law bond, because it did not arise in the case, held that the action could be maintained.” This language is also quoted with approval in Morgan v. Hale, 12 W. Va. 719, 720, where the court, in addition, says: “In the bond in Aylett v. Roane, there was precisely the same omission as in the case of Dabney v. Catlett, and in the latter case, the court in its opinion, came unanimously to the conclusion that as to the claimant of the property the bond was good under the statute notwithstanding the omission. In neither of the cases did the court decide that the bond was good at common law.” The principal case is cited in Duval v. Malone, 14 Gratt. 27. See monographic note on “Statutory Bonds” appended to Goolsby v. Strother, 21 Gratt. 107.
    
   PER CURIAM.

The judgment is erroneous, and is reversed with costs. And this court proceeding to render such judgment as the circuit superior court ought to have given, is of opinion, that the matters of law arising on the defendant’s demurrer to the plaintiff’s declaration are for the plaintiff &c. Therefore, it is further considered that the demurrer be overruled. And ordered, that the cause be remanded to the circuit superior court, for an enquiry of damages, unless the defendant shall plead to issue.

Judgment reversed.  