#### Aylett v. Roane.

November, 1844,

Richmond.

(Absent Brooke, J.)

*Indemnifying*Bonds—Validity —Statutes*—Case at Bar.—Upon a sale of property under execution, the sheriff takes a bond of indemnity, with conditions according to the act of 1819,1 Rev. Code, ch. 134, § 25, p. 533, † to indemnify the sheriff; and to pay and satisfy to any person claiming title to the property, all damages sustained, in consequence of the seizure and sale thereof; but it does not contain a provision for the protection of the purchaser of the property, as required by the act of 1828, Sup. Rev. Code 272. In an action by a claimant of the property, against the sheriff, Held, this is a good statutory bond, and protects the sheriff from the action of the claimant of the property.

A writ of fieri facias was issued from the circuit superior court of law and chancery for the county of King *William, in favour of Joseph T. Tompkins, to be levied of the goods and chattels of Edward Pollard. This execution came into the hands of one of the deputies of the appellant, who was high sheriff of the county, and was levied on a slave in the possession of Pollard. The sale of the slave, under the execution, was forbid by the appellee Samuel Roane; and an indemnifying bond was demanded by the sheriff, and given by Tompkins. The property was then sold; and the appellee instituted this action of trespass against the appellant, for the levy and sale of said slave. On the trial of the cause, the appellant offered the indemnifying bond in evidence, to shew that he was not liable to this action, but the court, on the motion of the appellee, excluded it from the jury, on the ground that it was not a good statutory-bond. The bond was taken in conformity with the act of 1819, with conditions to indemnify the sheriff; and to pay and satisfy to any person claiming title to the property, all damages sustained in consequence of the seizure and sale of the property; but it did not contain a provision *for the protection of the purchaser of the property, as required by the act of 1828, Sup. Rev. Code 272.

To the opinion of the court excluding the bond, the appellant excepted; and a verdict and judgment being rendered against him, he obtained an appeal to this court.

Lyons, for the appellant, submitted the case.

There was no counsel for the appellee.

*

-Statutory Bonds—Validity.—The principal case is cited with approval in Gibson v. Beckham, 16 Gratt. 332*(see note);*Duval v. Malone, 14 Gratt. 28; Reed v. Hedges, 16 W. Va. 195; Evans v. Graham, 37 W. Va. 661, 17 S. E. Rep. 201. See Morgan v. Hale, 12 W. Va. 719. See monographic *note*on “ Statutory Bonds ” appended to Goolsby v. Strother, 21 Gratt. 107

†

The 25th section provides, that "the sheriff or other officer levying an execution on property, as to which a doubt arises whether it is the property of the debtor, may require of the plaintiff or his attorney or agent, a bond payable to the high sheriff, or other officer, and conditioned to indemnify the officer against all damages which he may sustain in consequence of the seizure and sale of the property on which the execution shall have been levied; and moreover to pay and satisfy to any person or persons claiming title to such property, all damages which such person or persons may sustain in consequence of such seizure and sale.”

The 27th section of the same act provides, that “the party claiming such property shall, after the due execution of such bond, be barred of his right of action, against the sheriff or other officer levying such execution, unless the obligors in the said bond shall become insolvent.”

The act of February 28th, 1828, Sup. Rev. Code 272, provides, that indemnifying bonds taken in pursuance of the above act, “shall contain a farther provision, that the obligors shall warrant and defend to the purchaser or purchasers of the property, such interest and estate therein, as shall be sold under the execution or other process; and if such property or the estate or interest therein, sold as aforesaid, shall be recovered of the purchaser, he shall have the same remedy upon the bond, as is given to the claimant of the property by the 26th section” of the act of 1819.

ALLEN, J.,

after stating the case said, The bond contained all that was requisite for the protection of the claimant of the property, and the obligors could not have objected in a suit by him against them, that the law required additional covenants for the benefit of others, which were *117omitted. The covenants contained in the condition, were such as the law required, as far as relates to the parties in this suit, and fully provided for the indemnity of the claimant of the property. The omission of further covenants, was for the benefit of the obligors, but did not affect their liability to the owner of the property. The act of 1828 contains no repealing clause, and is not inconsistent with the previous law ; the sheriff would be responsible to the purchaser for the omission, but that would not render the bond void.

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; but 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. No 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.

*1 think the bond was a good statutory bond as respects the claimant of the property, and when relied on by the sheriff barred the action; and, therefore, that the court erred in excluding it from the jury.

The other judges concurred. Judgment reversed, and the cause remanded for new trial.