
    John Rice and Others versus Joseph Hosmer.
    In an action against a sheriff, for the default of his deputy in taking insufficient bail, it was holden, that the limitation of four years, provided by the statute of 1796, c. 71, commenced only from the return of non est inventus upon the execution against the principal.
    [*127] * This was an action of the case, brought against the defendant, former sheriff of the county of Middlesex, for the default of Peter Edes, formerly one of his deputies, in taking insufficient bail.
    The defendant pleaded, that the cause of action did not accrue • within four years, &c.; which plea was traversed, and issue joined thereon. The plea was founded on the statute of 1796, c. 71, which provides that all actions against sheriffs, for the misconduct or negligence of their deputies, shall be commenced within four years next after the cause of action.
    Upon the trial of the said issue before Jackson, J., at the last November term in this county, it appeared, that the plaintiffs, in 1807, commenced an action against one Jonathan Carlton, then of Charlestown, in the county of Middlesex, to recover certain sums of money, said to have been had and received by him for their use ; and delivered their writ in that action to the said Edes, to be served and returned. On the 22d of December, 1807, the said Edes returned on said writ, that he had arrested the body of said Carlton, and had taken bail for his appearance, &c.
    The demand of the plaintiffs in that action being disputed by the said Carlton, the same was not determined until the term of this Court in this county, in November, 1810, when the plaintiffs recovered judgment against Carlton for $279 damages, and $ 112.48 costs of that suit. Execution on that judgment was issued in February, 1811, and delivered to a deputy sheriff of Middlesex, who returned the same at the following March term, certifying that he could not find the body of Carlton, nor any of his goods or estate, wherewith to satisfy it. The plaintiffs thereupon caused a scire facias to be issued against the bail, returnable to the then next term of said Court, in November, 1811 ; at which term they recovered judgment for the sum of $410.89 debt or damage, and $ 10.81 costs * of suit, against one David Poor, who was the only [ * 128 ] surety in the said bail-bond. The said Poor, having been committed in March, 1812, on the execution issued on the last-mentioned judgment, was in April following discharged as a poor prisoner, under the statute of 1787, c. 29. The present action was commenced on the 24th of April, 1812.
    It appeared, that, in 1807, and for some' years afterwards, it was not generally known or understood among sheriffs and their deputies, that they were required to take more than one surety on a bail-bond, if tnat one were of sufficient ability at the time. And it did not appear that the plaintiffs knew who were the bail, or whether there was one or more, until they procured the said scire facias to be issued. The said Edes died in February, 1810.
    In December, 1807, the said Poor, who lived in Charlestown, was reputed to be in good circumstances, and then had estate, real and personal, to the value of $4000 or $ 5000. The said Can-fora at that time also had real and personal estate to an amount somewhat greater than that of said Poor. The said Carlton after-wards became insolvent ; and, in the autumn of 1809, he went to some of the Southern States, where he remained several months. He then returned to Charlestown, where he kept himself concealed, for fear of being arrested for his debts, and, in the autumn of 1810, he again left Charlestown, and has ever since resided in the city of Neto York. Some further evidence was produced, to show that he was utterly unable to pay the amount of the judgment against him at the time when the execution was issued thereon ; and that, if he had been then surrendered by his bail, or taken on said execution, the plaintiffs would not have obtained any part of their said debt.
    The judge, intending to reserve the questions of law in the case, instructed the jury, that the plaintiffs had maintained the issue on their part, and were entitled to a verdict for some damages, the amount of which was left wholly to the jury ; the judge instructing them, that the evidence produced by .the defendant, in mitigation of damages, was * legal evidence for that pur- [* 129] pose, and to be considered by them accordingly.
    The jury were further informed by the judge, that, if they should be of opinion that the plaintiffs could not have recovered their said debt against Carlton, even if sufficient bail had been taken ; but that the plaintiffs had been misled by the said Edes’s return of their said writ, and had been induced to prosecute that suit against Carlton, in the belief that they had sufficient security for whatever they should recover ; they might, if they thought it just and reasonable, assess the plaintiff’s damages to the amount of the costs, which they had expended in their suits against Carlton, and against his bail.
    
    
      The jury found a verdict for the plaintiffs for $ 135.37, which was taken, subject to the opinion of the Court upon the above report; and it was to be altered in any manner that the Court should , direct.
    
      Savage, for the plaintiff.
    
      Bigelow, for the defendant.
    
      
      
        Nye vs. Smith, 11 Mass Rep. 186. — Phillips et al. vs. Bridge, ib. 242. — Dearborn vs Dearborn, 15 Mass. Rep. 316.
    
   Dewey, J.,

delivered the opinion of the Court.

It is contended, for the defendant, that the cause of action accrued for the default of the deputy sheriff immediately on the act of his taking insufficient bail ; and that the term of limitation began to run from that time, or, at furthest, from the time when the writ was returnable into court. If he is right in either of these positions, the plaintiffs commenced their action too late ; and it is barred by the statute. But, if the cause of action did not accrue until after judgment was rendered against Carlton, in the original action, the suit is well commenced within the time of limitation.

There is no evidence of wilful misconduct on the part of the deputy sheriff, but of negligence only in taking insufficient bail. He accepted one surety on the bail-bond, who was, at the time, reputed to be of sufficient ability; but the law required not less than two, as has since been decided by this Court in the case of Long vs. Billings. Poor, who became bail, was liable on [*130] his bond, although * he was the only surety, and could not avoid it on that account .

If the sheriff take two sureties on a bail-bond, who are reputed to be of sufficient ability, although they may afterwards become insolvent and unable to pay the debt, the sheriff is not liable. But, if he take one surety only, he does it at his peril ; and can never be permitted to prove the sufficiency of the bail at the time he accepted it in discharge of himself. And, if the sheriff will take this responsibility upon himself, what injury results to the creditor ? If the bail is sufficient in such case to satisfy the judgment when it is obtained against him, the creditor has no cause of complaint ; and, if he is insufficient, the officer is chargeable.

The return of the deputy sheriff, that he had arrested the body of Carlton and had taken bail, was strictly true. He was not then iable for a false return ; and, if the bail had surrendered bis principal pending the suit, or had satisfied the judgment which was rendered against him, the plaintiffs would have sustained no damage in consequence of the officer’s having taken but one surety. The injury which the plaintiffs have sustained, and which is the ground of their action, did not arise to them until they had recovered judgment, and the principal had avoided.

Had the plaintiffs brought their action at any time before they obtained judgment in the suit against Carlton, they could have shown no actual damage. It was then uncertain whether they would prevail in their suit; and, if they did, the principal might satisfy the judgment, or be surrendered by the bail.

It is usual for the officer, who serves a writ, to retain the bailnond, until it is called for by the plaintiff in the action: and he has no occasion to call for it, until his execution against the principal is returned unsatisfied. - The creditor, therefore, cannot be presumed to know any thing of the sufficiency or insufficiency of the bail, until that time : and it would be an unreasonable construction of the statute, to say that the time of limitation began to [* 131 ] run before the plaintiff could set forth in his declaration the extent of his injury.

We are all of opinion, in the case before us, that the cause of. action did not accrue until the judgment, and the return of non est inventus upon the execution against the principal ; which was within four years next preceding the commencement of the action.

Our opinion is formed on the peculiar circumstances of this r.ase, and the nature of the default, with which the sheriff is charged. There is no doubt that an action upon the case, for the negligence or misconduct of an officer, may lie, in some cases, immediately, or before judgment in the suit ; as for suffering an escape , neglecting to arrest the debtor, to attach his goods, or to return the writ But those cases are different from '.he present, and depend on different principles.

The decease of Edes, the deputy sheriff, can have no effect on this cause. If no action will lie against his executors or administrators for neglect or misconduct in his office, that is no excuse for the defendant. The sheriff was liable for his default ; and it is to be presumed that he took a bond to indemnify himself against his liability.

The instructions given to the jury, respecting the assessment of damages, we are satisfied, were correct, and in exact conformity with the rules which were settled in the case of Weld vs. Bartlett; and which are equally applicable to this case. Agreeably to those principles, under all the circumstances of this case, we are of opinion that the verdict is just and reasonable ; and judgment is to be entered upon it accordingly. 
      
       9 Mass. Rep. 480.
     
      
      
        Clufton vs. Web, Cro. Eliz. 808. — Drury's Case, 19 Co. 100.
     
      
       By Rev. Stat. c. 91, § 4, it is provided, that “ The bail-bond shall be returned »ud filed with the writ ” — Ed.]
     
      
      
        Cœsar vs. Bradford, 13 Mass. Rep. 169.— Mather vs. Green, 17 Mass. Rep. 60
     
      
       4 D. & E. 611. — 2 Wils. 294.
     
      
      
        Mellen & al vs. Baldwin, 4 Mass. Rep. 480.
     
      
       10 Mass. Rep 474.
     