
    Jobe and Fitzsimmons vs. Sellars.
    A bond of indemnity executed to the Sheriff not by the plaintiff in the judgment, but by a stranger thereto, is a valid statutory bond, and the obligor is liable on motion to the Sheriff.
    Sellars, a constable, levied on a wagon and team by virtue of an execution against James Tipton. This property belonged to Albert Tipton. Albert Tipton sued Sellras and recovered a judgment against him for the value of the wagon and team. Prior to the sale of the property, the constable demanded a bond of indemnity,, which was executed and delivered to him by Jobe and Fitzsimmons. Neither Jobe nor Fitzsimmons was plaintiff on the execution.
    A motion was made by Sellars in the Circuit Court of Carter county against Jobe and Fitzsimmons on the bond, and judgment was recovered thereupon in favor of Sellars. Jobe and Fitzsimmons appealed.'
    
      T. A. R. Nelson, for the plaintiff in error.
    John Jobe, a stranger to the two executions, executed the bond of indemnity, and, although this may be good as a common law bond, yet I maintain that it was not executed by the person ' contemplated by the act of 1825, eh. 40, Car. & Nich. 183. The second section of that act manifestly contemplates that the bond shall be executed by the plaintiff in the execution, Car. & Nich. 184. To hold otherwise would, as I insist, be to hold that the legislature designed to encourage champerty and maintenance, and to put it in the power of any -.intermeddler to produce litigation by executing such bonds.
    
      C. W. Nelson,. for the defendant in error.
    It was the intention of the parties to comply with the act of Assembly. It was the intention of the constable to take such a bond as was provided for, and it was the intention of the parties signing it to give such a bond, and they ought not now to be permitted to avoid their obligation.
    Jobe saw proper from some cause to come in and execute a bond of indemnity. If he was a stranger and a wrong-doer, he cannot take advantage of his own wrong.
    Jobe intended and did assume the position of the plaintiff.
    The law was made for the protection of the officer, and this bond accomplishes that intent. Therefore, Jobe should not be permitted to urge that it is not a statutory bond.
    The first section of the act gives power and authority to the officer to move against, the obligor, or obligors, or either of thém, on the bond of indemnity. Therefore, it. makes no sort of difference whether either of them be the plaintiff in the suit or not; for he is not required to move against the plaintiff, but may move against any one or all executing the bond.
   McKinney, J.

delivered the opinion of the court.

The defendant in error obtained judgment by motion in the Circuit Court of Carter county, against the plaintiffs in error, on a bond of indemnity; and the only material question for our consideration is, whether the bond is in accordance with the provisions of the act of 1825, ch. 40.

Jobe, the principal in said bond, was not a party to the executions, or judgments, upon which they were issued: nor is it shown in the record that he had any interest, legal or equitable, therein. And it is argued by the counsel for the plaintiffs in error, that, by the proper construction of the act above referred to — the first and second sections being considered in connection with each other — the bond of indemnity contemplated by the statute must be made, or given, by the plaintiff in the judgment and execution; and that the bond in question in this ease. having been given by a stranger, is, therefore, not a good statutory bond. We do not concur with the plaintiffs’ counsel in this construction of the statute. The first section provides, that, “ in all cases where a sheriff, coroner, or constable, may levy an execution on property, the title to which is disputed, and may take a bond of indemnity, and may be. sued for so doing by the rightful owner of such property so levied on and sold, and a recovery had against such sheriff, coroner, or constable; it shall and may be lawful for such Sheriff, coroner, or constable, upon motion, in any court of record, to obtain judgment against the obligor, or obligors, or either of them, on such bond of indemnity for the amount of the damages and costs that may have been recovered against such sheriff, coroner, or constable.” There is certainly nothing in the letter of this section indicating that the bond shall be given by the plaintiff in the execution ; and we are unable to perceive anything in the reason or policy of the law which forbids the giving of such bond of indemnity by a party beneficially interested in the judgment; or by the agent or attorney of the party interested; or, in the absence of the party in interest, by any one who may be .willing to take upon himself the hazard and responsibility of doing so. The bond contemplated by this act is for the sole benefit of the sheriff, or other ministerial officer; and the question is exclusively between him and the obligor, or obligors, in such bond. This section was intended merely to give legislative sanction to a practice which had grown up in the country without authority of law, viz, the taking bonds of indemnity by sheriffs and other ministerial officers, when the title to property about to be levied on was in dispute ; and, furthermore, to provide a summary remedy upon the breach of the condition of such bonds. The argument for the plaintiffs in error derives no aid from a consideration of the second section of said act. Its effect is altogether different from and independent of the first section. It providés that no “ sheriff, coroner, or constable, shall be compelled to levy an execution on any property, the title to which is disputed, and sell the same, unless the plaintiff in the execution will first give bond and security to such sheriff, coroner, or constable, to indemnify and keep harmless such officer from all damages and costs in consequence of levying upon and selling such property.” The intention of the latter section was merely to relieve sheriffs and other officers from the hardship and gross injustice to which they were frequently exposed by the law as it previously existed. By the common law, if the sheriff, or. other officer, levied upon and sold property belonging to some other person than the defendant in the execution, and a recovery in damages were had against him for so doing by the rightful owner thereof, he had no recourse upon the plaintiff, and was wholly without redress. And, on the other hand, if he refused to levy and sell, upon the’ ground that the title to the property was in dispute, it was at the peril of being made personally liable to the satisfaction of the plaintiffs’judgment, in the event it should turn out — perhaps after a tedious and doubtful investigation — that the title was in fact in the” defendant in the execution. He was bound at his peril to know who was the rightful owner of the property. But, by the section of the act under consideration, the mere fact'that the title to the property is disputed, is sufficient justification for the refusal of the sheriff, or other .officer, to levy upon or sell the property, unless a bond of indemnity is given as prescribed in the act. The officer, in other words, is not compelled, as at the common law, to take upon himself the hazard of determining the question of right or title to the property in dispute ; but may stay his hand, and refuse to execute the process until the plaintiff in the execution shall, by the execution of a sufficient bond of indemnity, take such hazard upon himself. We are of opinion, therefore, that the bond in question is a good statutory bond; and that, upon the facts presented in the bill of exceptions, the Circuit Court was well warranted in rendering judgment thereon. The other supposed errors in the record have not been seriously pressed, and do not, in our opinion, furnish any ground of reversal.

Let the judgment of the Circuit Court be affirmed.  