
    Martin v. Bolenbaugh.
    1. Where a sheriff has in his hands for service an order of replevin for goods which are claimed by persons other than the defendant in replevin, the taking of a bond of indemnity by such sherifE conditioned that the plaintiff in replevin shall pay any judgment which may be recovered against the sherifE by any person or persons for damages sustained by reason of the seizure and detention of such goods, is not against public policy, but creates a legal and valid obligation.
    2. The obligors in such a bond are estopped to deny the recital therein that the goods sought to be replevied are claimed by persons other than the defendant in replevin.
    3. Where the goods replevied have been, delivered to the plaintiff, and the defendant in replevin has recovered judgment against the plaintiff for the value of the goods taken and his costs, and has subsequently recovered judgment against the sherifE on his official bond, based upon his failure to take a replevin bond as required by statute, and thereafter the sherifE proceeds against the plaintiff in replevin and his sureties, upon their bond, of indemnity conditioned to pay any judgment rendered against the sheriff for the seizure and detention of the goods, the sheriff’s failure to take such replevin bond is (in the absence of bad faith or culpable neglect), no defense to such action.
    4. In'an action upon a bond of indemnity conditioned that the principal obligor shall pay any judgment which may be recovered against the obligee, the measure of recovery is the amount of the judgment, and it is not necessary either to aver orprove payment of the judgment by the obligee prior to bringing the action.
    EeROe to the District Court of Hardin county.
    On the 3d day of March 1817, L. A. Gormley, one of the plaintiffs in error, commenced an action in the court of common pleas of Hardin county, against J. H. Poore, for the recovery of the possession of certain chattels, of which he alleged he was the owner and entitled to the immediate possession, and which he alleged were wrongfully detained by the defendant, Poore. An order of replevin was duly issued and placed in the hands of Isaac Bolenbaugh, sheriff of the county, for service, by virtue of which he took the goods into his possession.
    Thereupon, Gormley as principal, and his co-obligors as sureties, executed and delivered- to Bolenbaugh their writing obligatory, of the following tenor:
    [INDEMNIFYING BOND.]
    ' “Enow all men by these presents, that we, L. A. Gormley, I. "W. Martin, J. R. Wilson, J. J. Myers and George Longa-baugh, are held and firmly bound unto I. Bolenbaugh, Sheriff of Hardin County, and State of Ohio, in the sum of twelve hundred dollars, the payment of which well and truly to be made, we do hereby jointly and severally bind ourselves. Sealed with our seals and dated the 3rd day of March, A. D. 1877.
    .“The condition of this obligation is such, that whereas the said I. Bolenbaugh, Sheriff of Hardin County, Ohio, by virtue, of a writ of replevin, issued out of the court of common pleas of said county, dated March 3,1877, at the suit of L. A. Gorm-ley against J. H. Poore, did seize and levy on, as the.property of the said J. H. Poore, certain goods and chattels, fully described in the return of said writ of replevin, to which reference is hereby made, and whereas said goods and chattels are claimed by persons other than the said J. H. Poore, now if the said L. A. Gormley .shall pay, or cause to be paid, to the said I. Bolenbaugh, sheriff, the full amount of any judgment, or judgment and costs, which may hereafter be recovered against the said I. Bolenbaugh, sheriff, by 'any person or persons, in any court having jurisdiction thereof, for damages sustained by reason of the seizure and detention of said goods and chattels, or by reason of the detention thereof, and shall pay the said I. Bolenbaugh, sheriff, all costs, charges and expenses of every description, to which he may be subject in consequence, or growing out of the seizure and detention of the goods and chattels aforesaid, and shall also pay all reasonable attorneys’ fees, or other charges and expenses which the said I. Bolen-baugh, sheriff, shall or may be compelled to pay, or become liable to pay, in order to collect the amount which may be due on this bond from the obligations thereof, to the said L. A. Gormley then the obligation to be void, otherwise to be in full force and virtue in law.
    “ L. A. Gormley, [Seal.]
    “ I. W. MaiítiN, [Seal.]
    “ J. R. WilsoN, [Seal.]
    
      “ J. J. Myers, [Seal.]
    “ George LoNGabaugh, [Seal.] ”
    At the time of the delivery of this writing to him, and of his delivery of the goods to Gormley, Bolenbaugh supposed it to be in effect a replevin bond.
    The obligors (so far as anything appears in the record to the contrary), supposed and intended it to be of the effect imported by its language.
    No other bond or undertaking was taken by the sheriff. Upon the delivery to him of this writing, Bolenbaugh delivered the goods to Gormley. Upon the trial of the action at the October term of 1877, Poore recovered judgment against Gormley for the sum of $279.17, damages and $74.24, costs, and that Poore had at the commencement of the action, both the right of property and of possession in the goods.
    Poore afterwards transferred this judgment to long & Rath, partners, who, in October, 1878, in an action in Hardin county court of common pleas, recovered the amount of such judgment, with interest and costs, against Bolenbaugh and his sureties upon his bond, as sheriff, amounting to $365.55, with costs taxed to $14.21. The papers in the latter case had become lost at the time of the trial of the present ease, but from the pleadings, evidence, and stipulations of the parties below, it sufficiently appears that the ground of recovery, in the case of Long & Rath against Bolenbaugh was the seizure, of the goods and their delivery to Gormley without taking an undertaking in replevin as required by law.
    Bolenbaugh paid $234 upon this judgment. He and his sureties are liable for the unpaid balance of such judgment and are solvent.
    On May 3, 1881, Bolenbaugh commenced the action below upon the writing above set forth, for the recovery of the amount of the judgment so recovered against him by Long & Rath.
    The foregoing facts are summarized from the record in the case which embraces the pleadings and bill of exceptions.
    Judgment was recovered against the defendants below for the sum of $451.50 and costs, which was affirmed by the district court. To reverse this judgment the present proceeding is prosecuted.
    
      James Wait and Stillings da Allen, for plaintiff in error.
    
      F. O. da J. W. Dougherty, for defendant in error.
   Owen, J.

1. The first alleged error relied upon as ground of reversal of the judgment below, is that the writing sued upon was unauthorized ; that it was the duty of the sheriff to require an undertaking in replevin payable .to Poore, the defendant in the replevin suit, before delivering the property to Gormley, and that public policy did not sanction his demanding or taking indemnity against the consequences of acts not authorized by law.

The ease of Purple v. Purple, 5 Pick. 226, where it was held that: “A replevin bond made to the replevying officer instead of the defendant in replevin is void,” is relied upon to support the position contended for. In that case, the replevin was of goods in the hands of an attaching officer. The decision is put upon the ground that: “ It stands as a bond given to one who has no lawful authority to take it, and the ■purpose and effect of it was to aid and abet a trespass upon the attaching officer; it is therefore illegal and void.” Without discussing the soundness of that decision, or inquiring how far it is sustained by subsequent holdings, it is sufficient for our purpose to say it is apparent that it is not decisive of the case at bar.

In the present case the writing sued upon is, neither in form nor effect, a replevin bond. It is a bond of indemnity intended by its.terms to hold the sheriff harmless from the consequences of the “seizure and detention” of the goods of Poore, the defendant in replevin.

Was such a bond authorized ?

One of the recitals of it is. that: “ said goods and chattels are claimed by persons other than the said J. H. Poore.” As against the obligors of this bond, this recital will be taken as true. Shoyer v. Richmond, 16 Ohio St. 455; Cutler v. Dickinson, 8 Pick. 386; Cox v. Thomas, 9 Grattan, 312; Bursley v. Hamilton, 15 Pick. 40; Bigelow on Estoppel, 308. ■

While the sheriff supposed this writing to be in effect a replevin bond* yet as no ground was laid in the court below for its reformation, we must regard the 'parties as standing upon its terms, and the only importance to be ascribed to,the sheriff’s supposition regarding the bond is, that he stands excused of all bad faith or culpable conduct or neglect in the discharge of his duties.

As the title to the property affected by the replevin was in question, and as the officer’s writ did not protect him from liability as a trespasser in seizing and delivering to Gormley the property of a third person not named in his writ, the taking of indemnity by him was not only in accord with public policy but was a proceeding upon which the law looked with favor. State v. Jennings, 14 Ohio St. 78; Moulton v. Jose, 25 Maine, 76-81; Colt v. Eves, 12 Conn. 261; Caldwell v. Arnold, 8 Minn. 265; Wells on Replevin, § 294. The sheriff, in taking this bond, was guilty of no act of malfeasance or misfeasance, nor was it taken to indemnify him for doing any unlawful act, but was taken under an honest mistake, supposing it was a replevin bond; therefore no principle of public policy was infringed.

The seizure of the goods by the sheriff was lawful.

Upon the faith of this bond they were delivered to Gormley, the principal obligor. It is difficult to see upon what principle of public policy or of fair dealing Gormley or his sureties may now question the integrity of the transaction or the validity of the bond.

Whatever ground of complaint Poore, the defendant in replevin, may urge against the delivery of the goods .to Gormley without a replevin bond, the latter ought not (nor ought his sureties) to be heard to say that the goods were improvidently or unlawfully delivered to him.

The court below did not err in treating this bond as a valid and legal obligation.

2. The second alleged error relied upon is, that there was no breach of the conditions of the bond. That there was no condition in the bond against turning over the property to Gormley, and that whatever the latter’s liability may be, his sureties cannot be held beyond the very terms of their bond.

It was stipulated by the parties below in the present case, that the papers in the case of Long & Rath against the sheriff and his official sureties had become lost, “ and that the sole ground upon which said action was founded was the failure of the plaintiff in this action, as sheriff, to take a replevin bond in the said case of Gormley v. Poore."

By this we are to understand that the neglect to take such replevin bond was the one breach of the sheriff’s official bond relied upon.

But we are to consider this stipulation in the light of the facts of the whole case. The rights of Poore were fixed. in the replevin suit. The property taken was adjudged to have been his. His damages were fixed and adjudged to him in the value of the property and his costs of suit.

The loss which Poore sustained resulted from the seizure of his goods, their delivery to Gormley, and the failure of the remedy he would otherwise have had by an action upon a re-plevin bond payable to himself, in lieu of which this bond of indemnity was taken.

Looking to this instrument we find it conditional that:— “ if the said L. A. Gormley shall pay, or cause to be paid, to the said I. Bolenbaugh, sheriff, the full amount of any judgment, or judgment and costs, which may hereafter be recovered against the said I. Bolenbaugh sheriff, ly any person or persons, in any court having jurisdiction thereof, for damages sustained by reason of the seizure and detention of said goods and chattels, or by reason of the detention thereof . . . then the obligation to be void, otherwise to be in full force and virtue in law.”

This condition is certainly broad enough to protect the sheriff against the loss sustained by him in the recovery of the judgment by Poore’s assignees.

Neither bad faith nor culpable neglect of duty, can be imputed to him. The bond, as we have seen, was a valid obligation. As one of the fruits of it, Gormley, by the act of the sheriff, became possessed of Poore’s property. The sheriff has been called upon to answer for the loss which Poore thereby sustained. It would be palpably inequitable to permit Gormley to enjoy the fruits of this transaction without a resulting liability upon the instrument, whereby he plainly undertook to answer for the very loss which has resulted to his obligee.

3. The third alleged error is that the court rendered judgment for the full amount of the recovery against the sheriff in the action upon his bond, whereas, ho had paid upon it but the sum of $234.

The condition of the bond is that Gormley “shall pay or cause to be paid, to the said I. Bolenbaugh, sheriff,-the full amount of any judgment or judgment and costs, which may hereafter be recovered against the said I. Bolenbaugh, sheriff,” etc.

The agreement was not simply to indemnify the sheriff against 'loss, by reason of the judgment, but to pay it. The measure of recovery is not, in such case, the amount paid upon the judgment recovered, but the amount of the judgment, and actual payment by tbe party indemnified is not necessary to a recovery by him of the amount of the judgment.

The failure to pay the judgment according to the undertaking of the indemnity bond, fixes and determines the measure of the liability of the obligor. Wilson v. Stilwell, 9 Ohio St. 467; Webb v. Pond, 19 Wend. 423; Conkey v. Hopkins, 17 Johns, 113; Kirskey v. Friend. 48 Ala. 276.

Judgment affirmed.

McIlvaine, J., dissenting.

I admit that a sheriff having in his hand a writ of replevin, and it being doubtful whether the seizure or detention of the property by him could be justified under the writ, may take from the plaintiff in the writ, a bond of indemnity, upon which a suit could be maintained, in case the seizure or detention should be adjudged a trespass. But I deny that such officer having seized the goods before the execution of a bond, can maintain an action on such bond for damages resulting to him from an omission to perform a plain and unquestionable duty imposed upon him by the statute of the state. A recovery in such ease would bo against public policy, a reward for misfeasance in office.

This case has its origin in Gormley v. Poore, an action in re-plevin pending in the common pleas of Hardin county, wherein Isaac Bolenbaugh, as sheriff, under the order of delivery, had seized the goods, and being in possession, took from the plaintiff the bond upon which this action is founded, which is as follows:

Know all men by these presents, that we, L. A. Gorm-ley, I. W. Martin, J. R. Wilson, J. J. Myers and George Longabaugh, are held and firmly bound unto I. Bolenbaugh, sheriff of Hardin county, and state Ohio, in the sum of twelve hundred dollars, the payment of which well and truly to be made, we do hereby jointly and severally bind ourselves. . Sealed with our seals and dated the 3 day of March, A. D. 1877.
The condition of this obligation is such, that whereas the said I. Bolenbaugh, sheriff of Hardin county, Ohio, by vir-ture of a writ of replevin, issued out of the court of common pleas of said county dated March 3, 1877, at the suit of L. A. Gormley against J. IT. Poore, did seize and levy on, as the property of the said J. H. Poore, certain goods and chattels, fully described in the return of said writ of replevin, to which reference is hereby made, and whereas said goods and chattels are claimed by persons other than the said J. IT. Poore, now if the said L. A. Gormley shall pay, or cause to be paid, to the said I. Bolenbaugh, sheriff, the full amount of any judgment, or judgment and costs, which may hereafter be recovered against the said I. Bolenbaugh, sheriff, by any person or persons, in any court having jurisdiction thereof, for damages sustained by reason of the seizure and detention of said goods and chattels, or by reason of the detention- thereof, and shall pay the said I. Bolenbaugh, sheriff, all costs, charges and expenses of every description to which he may be subject in consequence, or growing out of the seizure and detention of the goods and chattels aforesaid, and shall also pay all reasonable attorney’s fees or other charges and expenses which the said I. Bolenbaugh, sheriff, shall or may be compelled to pay, or become liable to pay, in order to collect the amount which may be due on this bond from the obligations thereof, to the said L. A. Gormley, then the obligation to be void, otherwise to bo in full force and virtue in law.
“L. A. Gormley, [Seal.]
I. W. MaetiN, [Seal.]
“ J. R. WilsoN, [Seal.]
“J.J. Myers, [Seal.]
“ George LoNgabaugh, [Seal.]”

It may be conceded that this bond was taken by mistake instead of an undertaking required by section 5819 of Revised Statutes, which reads as follows : “ The sheriff shall, except as provided in the next section, deliver the property so-taken to the plaintiff, his agent or attorney, when there is executed, by-sufficient surety of the plaintiff, a written undertaking to the defendant, in at least double the value of the property taken, to the effect that the plaintiff shall duly prosecute the action and pay all costs and damages which may be awarded against him ; and the undertaking shall be returned with the order.”

The duty of the sheriff in such cases is prescribed in section 5822 which is as follows: “If the undertaking required by section fifty-eight hundred and nineteen be not given within twenty-four hours after the property is taken, or after the right first accrues to the plaintiff to receive the property from the officer on executing the proper undertaking, the officer shall return the property to the defendant; and if the officer deliver any property so taken to the plaintiff, his agent or attorney, or keep the same from the defendant, without taking such security within the time and in the manner aforesaid, or if he take insufficient security he shall be liable in damages.”

It is not claimed that the bond in suit is sufficient as a statutory undertaking. The claim is, that it is good as a common law bond, and that the delivery of the goods replevined to the plaintiff was a sufficient consideration for the bond. It is quite certain that there was no other consideration than the delivery of the goods to the plaintiff without the undertaking required by the statute.

Poore, the defendant in the replevin suit, recovered, and failing to obtain satisfaction of his judgment from the plaintiff in the action, brought his action by the assignees, against the sheriff, Bolenbaugh, on the ground that he had wrongfully delivered the goods to the plaintiff without his executing an undertaking as required by the statute, and recovered judgment therefor.

The action now under review was then brought by Bolen-baugh on the indemnity bond to recover the amount of the judgment which Poore had recovered against him for neglect of duty in delivering the goods to the plaintiff in replevin, without the undertaking required by statute. The courts below rendered and sustained a judgment against the obligors of the indemnity bond.

This judgment ought to be reversed, not because the terms of the bond do not cover the case made, but because it is against public policy in so far as the loss of the plaintiff, Bolen-baugh, resulted from his wrongful act in his office, in delivering the goods to Gormley, plaintiff in replevin, instead of returning them to Poore, defendant in replevin, as the statute Required him to do. It is agreed in this action that the sole ground upon which the action against the sheriff, Bolenbaugh, ''was based, was his failure to thke a replevin bond in the re-plevin suit of Gormley v. Poore.

It appears to me that in affirming the recovery on this bond, the court has ignored the distinction between a bond of indemnity to a sheriff against losses resulting from causes over which he has no control and to which he does not contribute ■by his own misfeasance, and a bond executed to him in con-' sideration of an unlawful act on his part, and where the only breach of the bond is the omission of the sheriff to discharge á duty which is imposed upon him by the plain terms of the statute. • In other words, the judgment of affirmance is in ‘effect a holding that the omission to discharge a plain statutory duty is excused or is equivalent to a discharge of the duty, if it be shown that the omission was not willful or corrupt.

The decision of the court appears to rest mainly on the proposition that the sheriff was not guilty of any moral turpitude in omitting to take a replevin bond. It is true, as the record shows, that the sheriff intended to exact a replevin bond, but the matter was left in the care of his deputy, for that purpose, who prepared the bond in suit, which was executed by the plaintiff in replevin and his sureties, with full knowledge of its terms, whereupon the goods were delivered 1 to the plaintiff in replevin. The only consideration of the bond was such delivery. Without a good and lawful consideration the bond was void. The only consideration relied on was a violation of the statute which required -the goods to be delivered to the defendant, Poore, unless a replevin bond was executed within twenty-four hours. It appears to me the intention or motive of the sheriff is immaterial. The fact is, the replevin bond was not executed, and for this neglect, the' sheriff was held liable to Poore, and it seems plain to me that this neglect of a plain statutory duty wras not a good or sufficient consideration for the bond, in the present action.  