#### James C. Willet, plaintiff and respondent, *vs.*Charles Lassalle, who was impleaded with Theodore Galliardet *et al.,*defendant and appellant.

1. In an action by a sheriff upon an undertaking given to him by a defendant arrested under an order of arrest in a civil action, it is not necessary to allege in the complaint, that he had not delivered the order of arrest and undertaking to the plaintiff’s attorney in such former action, as required by section 192 of the Code of Procedure, in case such attorney demands it.

2. Any exoneration of the sheriff from liability, by such delivery and the omission of the plaintiff to except to the bail, and the consequent liability of such bail to the plaintiff in such action, must come from and be set up by the defendant affirmatively, as matter of defense in his answer.

3. It is not necessary to allege in the complaint in such action, that any action has been brought against the sheriff.

4. It is not essential to aver in terms that the undertaking was delivered; nor does an averment that it was under seal vitiate.

6. The measure of damages in such an action is *prima fade*the whole amount of the undertaking.

(Before Robertson and Monell, JJ.)

Heard March 3,1863;

Decided April 6, 1863.

This was an appeal from an order overruling a demurrer to the complaint.

The action was brought by the plaintiff (Willet) late sheriff of the city and county of Hew York, against the defendants, Galliardet, D’Homergue and Lassalle, on an undertaking given by the defendants on the arrest, in a former action, of the defendant Galliardet.

The complaint contained, in substance, the following :

“ That the plaintiff, at the times therein mentioned, was sheriff of the city and county of Hew York. That about the 7th day of June, 1858, one Hiram Cranston commenced an action in this court, against one of the defendants, Galliardet, for an assault and battery, and upon affidavits of a cause óf action at the time of the commencement thereof, obtained from one of the justices of this court an order of arrest, directed to the plaintiff, as such sheriff, commanding him to arrest the defendant, Galliardet, and hold him to bail in the sum of *619$8000 in such action, and to return such order to the plaintiff’s attorneys, Whiting & Clark, at a certain* place, Ho. 40 Park Row, in the city of Hew York, on the 15th day of June, 1858. Which order, about the same day, was delivered to the plaintiff, as such sheriff, to be executed. By virtue of which order the plaintiff being such sheriff, on the same day, took and arrested Galliardet by his body, and detained him in custody, as such sheriff. And while the defendant, Galliardet, being so arrested, was in the custody of the plaintiff, as such sheriff, by virtue of such order of arrest, on the same day, at the city of Hew York, he gave bail to the plaintiff; that is to say, the defendants,. D’Homergue and Lassalle, as bail and sureties for the defendant, Galliardet, jointly with him, by their writing obligatory, commonly called *“*an undertaking,” signed and sealed by the defendants, and dated on the same day, undertook, in the sum of $8000, that the defendant Galliardet, should at all times render himself amenable to the process of this court during the pendency of such action, and to such process as should be issued to enforce the judgment therein.

That Cranston, on the 30th day of July, in the year 1859, obtained judgment against the defendant Galliardet, in this court, for the sum of $9,024.44, damages and costs; a transcript of which judgment was duly filed in the office of the clerk of the city and county of Hew York, on the 1st of August, 1859. On the same day, Cranston issued an execution against the property of Galliardet, directed to the sheriff of the city and county of HeW York aforesaid ; whereby such sheriff was commanded to satisfy such judgment out of the personal property of the debtor within his county, or if sufficient personal property could not be found, then to satisfy it out of his real property situated in such county on the day when such judgment was docketed, or at any time thereafter, in whosesoever hands the same might be, and return such execution, in sixty days after the receipt thereof, to the clerk of this court. Such execution, indorsed' with a direction to levy and collect such *620sum- of $9,024.44, with interest and fees, was received by such sheriff on the said day and year aforesaid.

That such execution was' afterwards, in October, 1859, returned'by such sheriff of the city and county of Hew York, wholly unsatisfied. And thereupon, afterwards, in Hovember following, Cranston issued an execution against the person of the defendant Gralliardet, directed to the sheriff of the city ,and county of Hew York, commanding him to arrest such judgment debtor and commit him to the jail of his county until he should pay the said judgment, or be discharged' according to law. Which execution was also indorsed with a direction to the sheriff to collect such sum of $9,024.44, besides interest and fees; and was afterwards, in Jánuary, 1860, returned “Hot found.” ■ By reason whereof, a right of action accrued to Cranston, and' an action had been commenced by him against the plaintiff, by reason of the neglect of the defendants, D’Homergue and Lassalle, to beep and render the defendant Gralliardet, at all times amenable tó the process of the court, issued to enforce the judgment in the action therein between Cranston and Gralliardet, according to the terms and conditions of their undertaking before set forth. It concluded by laying the damages at $8,000, for which sum the plaintiff claimed judgment.

The defendants, Lassalle and D’Homergue, demurred" to this’ complaint, and assigned as their ground of demurrer that it did not contain facts sufficient to constitute a cause of action.

The demurrer was argued at special term, in April, 1862, before Mr. Justice White, by whom it was overruled, holding that the . complaint of the plaintiff, as sheriff, need not negative the performance either by himself or the defendants, who were, sureties, of all the acts which might have left 'the defendants liable in the former action only to the plaintiff therein, but that performance of such acts must be pleaded affirmatively by the defendants, if they desired to present them as a defense.

From the order entered thereon the defendant, Lassalle, appealed..'

*621
      *F. R. Coudert,*for the defendant, appellant,

I. Upon the facts stated in the complaint, the plaintiff does not show himself entitled to recover. He does not aver either that he has suffered any damage, or is likely or liable‘to suffer any. That he is the holder of the bail bond, or entitled to sue on it. That it (the bail bond) was ever delivered to any one or made to any one, or in fact ever made at all. That he comes within any of the cases provided by the Code. That the action in. which G-alliardet was arrested was ever prosecuted to judgment, or execution ever issued on said judgment. There is no allegation that the plaintiff is the owner of the bond. These facts being material, the complaint is insufficient. *(Rodi*v. *Rutger’s Fire Insurance Co., 6 Bosw.*23.)

II. It being made the duty of the officer to return the process, together with the undertaking of the bail, to the plaintiff’s attorney, *(see Code,*§ 192; 3 *R. S. 5th ed.*739,) it is to be presumed that he performed that duty. If he did, upon the allegations of the complaint, he has no standing in court.

III. There is nothing in the complaint bringing this case, within any of the provisions of sections 193, 201, or 203.

IY. A sheriff is not entitled to look to the bail except when they fail to justify, and in that case he can only recover the “damages which he may sustain by reason of such omission.” *(See Loosey*v. *Orser, 4 Bosw.*391.) And there is no allegation on either point.

Y. There is no analogy between cases brought under the Code and those prosecuted under the old practice, as far as the capacity to sue is concerned. Formerly, the bond was made directly to the sheriff. It was. necessary that the plaintiff should allege this fact with great particularity, as upon this depended his ability to sue. *(See*2 *Chit, on Pleading,*449.) Under the present practice, the undertaking belongs to the plaintiff in the action wherein the order of arrest was granted. There being no allegation to the contrary, it is fair to presume that the bail bond is now in Cranston’s hands.

YL The complaint describes the instrument upon which the plaintiff seeks to recover against the defendants as a “ *certain*
      *622
      *■writing obligatory,*commonly called. ‘ an undertaking/ signed and *sealed*by the said defendants, &c.; ” but it does not state that, it was made to any one, which is essential in a bond. *(See Burrill’s Law Dict., tit. Bond.)*There being no obligee mentioned in the instrument, the plaintiff should show some particular state of facts, or some special provision of law, as a foundation for his right to recover.

VII. The sheriff had no right to retain the undertaking. It *belonged*absolutely to the plaintiff, who alone has a right to sue upon it. (§ 192.)

VIII. The bail bond or undertaking is a bond of indemnity. Something, therefore, should be'alleged to show'that the sheriff had suffered some loss, or incurred some liability for which he was entitled to be compensated. He simply says that he is sued for an escape, and therefore entitled to the face of the bond and interest. If the plaintiff’s theory is right, he could recover the full amount and interest, whereas he might defeat any claim by Cranston, by proving the insolvency of Galliardet.

IX. It is difficult to avoid the inference, after .a careful perusal of the complaint, that Willet and Cranston have confederated against the defendants, and that any contest between them over the absent body of G-alliardet is postponed, in the hope that these defendants may be offered up as scapegoats. The defendants, on the other hand, claim that, as sureties, they are bound only according to the strict letter or precise terms of their contract, and are considered as favorites of the law, *(Wright*v. *Johnson, 8 Wend.*512, *and cases cited;)*that they should not be driven to trial without knowing precisely on what grounds they are to be charged.

*J. B. Whiting,*for the plaintiff, respondent.

I. The complaint sets forth all the facts necessary to constitute a perfect cause of action.

II. The execution of the undertaking fixes the character of the parties as bail to the sheriff. The statute enabling the sheriff to give notice to the plaintiff, and providing for excep*623tion and justification, is for the benefit of the sheriff alone. The bail have nothing to do with it. Whether the sheriff gives notice, and the bail do not justify, or if he omits to give the notice, which he may do designedly or from neglect, he still becomes liable as bail. *(Code,*§§ 201, 203. *Van Duyne*v. *Coope,*1 *Hill,*557. *In re Taylor,*7 *How. Pr.*214. *Buckeman*v. *Carnley,*9 *id.*180. *Sartos*v. *Merceques, Id.*188.)

III. The sheriff, on an escape, may immediately take his remedy for a breach of the condition of the bond. *(Hinds*v. *Doubleday,*21 *Wend.*223.)

By the Court, Robertson, J.

This is an action on an undertaking given by the defendants to the plaintiff, on his arrest of the defendant G-alliardet, under an order in an action by a third person (Mr. Cranston) against vsuch defendant. The undertaking is in the usual form, promising "that such defendant should at all times render himself amenable to the process of the court during the pendency of the action, and to such process as should be issued to enforce the judgment therein.

The complaint shows that such third person (Cranston) obtained judgment against the defendant G-alliardet; issued an execution against his property, which was -returned unsatisfied, and, also, afterwards an execution against his body, which was returned by the officer to whom it was directed, not found. These facts, in an action against the present plaintiff, by the plaintiff in such action, would be enough to charge the former with liability for an escape of the defendant therein.

The following are the only questions on the merits arising in this case.

*First.*Was the undertaking sued upon ever an obligation to the plaintiff, and could he ever have maintained án action upon it ? If so, did it ever cease to be so, and by what means P

*Second.*Is there any presumption of law in favor of the defendants, that the sheriff ever relieved himself of all responsibility for the production of the defendant's, body, in the *624original action, upon final process, by the delivery of the order of arrest, his return thereto, and a copy of the undertaking in suit, to the attorney for the plaintiff in such action *?*

*Third.*As incidental to the second question, does the liability of the defendant vary by the undertaking being to the plaintiff in this action instead of the plaintiff in the original action ?

The plaintiff, on the arrest of the former' defendant, was liable as if he were bail, in case of an escape, rescue or failure. of.'the bail to justify, or of a deposit in their place, *(Gode,*§ 201,) and he may put in bail to surrender the defendant. *(Gode,*§§ 201, 193 *to*196 inclusive.) He is only exonerated by the delivery of the order of arrest, return and certified copy of the undertaking to the attorney for the plaintiff in the original action, and the omission by such attorney, to refuse such bail, for ten days, or by the justification of the same, or new bail. (§§ 192,193.) During all this time until justification, the bail are liable to the sheriff. (§ 203.) By the justification he is relieved and the bail become liable to the plaintiff in the action. There is no allegation in the complaint, of the delivery of such documents, or non-refusal to accept the bail.

In the next place the delivery of the order of arrest and other documents, to the plaintiff’s attorney, authorized by the 192d section of the Code, is not a duty 'of the sheriff to any of the parties in the action ; it is a privilege by which' he relieves himself from responsibility, and until he does it, the bail are bound to. him, but are not obliged to justify. If it were a duty, it would clearly not be one either to the defendant in the action, who can do nothing to enforce it, or his bail, who are not benefited, and can only be harmed by it, by being required to justify. The defendants have a right to set up the same defenses in an action by the present plaintiff on. their undertaking, as they would were it brought in the name of the plaintiff in the former action. Whatever damages the plaintiff is liable for to the • latter, he can recover from the defendants; and they are the same as the plaintiff in the for*625mer action could recover had he assumed the benefit of the undertaking and sued upon it. There is, therefore, no ground for presuming, in favor of the defendants, that the sheriff exonerated himself by delivering the proper documents to the attorney for the plaintiff in the former suit. That, if the fact be so, should be set up as affirmative matter of defense. The defendants are neither better nor worse off than if the plaintiff in the former action were the plaintiff in this. In fact, the question to whom bail shall be liable, is entirely a matter of election between the sheriff and the plaintiff in the action. They are bound to produce the defendant’s body, when required by a final process, and if they do not, to indemnify the party actually injured thereby.

It is settled that the sheriff is not obliged to wait until he is sued, in order to make the bail liable, *(Hinds*v. *Doubleday*21 *Wend.*223,) and therefore the allegation in the complaint, of the institution of an action against him, is immaterial. The omission to allege expressly that the judgment stated to have been recovered was so in the action originally referred to in the complaint, is aided by the rest of the averments. Advantage can only be taken of it by a motion to make the complaint more definite and certain. The statute does not require the undertaking to be delivered to any one, but merely to be executed by the bail, (§ 187,) which is termed giving bail. (§ 186.) It is not a mere contract, it is a stipulation in court, or recognizance, which enures to the benefit of the party entitled. A seal can not do it any harm. Formerly a bail bond was in form to the sheriff, but the law permitted a plaintiff, when assignee of it, to sue upon it, even when other assignees could not sue in their own name. The present practice is perhaps simpler and equally efficacious.

Unless, therefore, it is to be assumed that the plaintiff relieved himself from responsibility by delivering the proper documents to the attorney for the plaintiff in the former action, which does not appear in the complaint, it shows a clear liability on the part of the defendants.

I do not see how, if the judgment had been said to have *626been recovered in the same action in which the order of arrest was issued, and the allegations respecting a seal to the undertaking and the commencement of a suit against the plaintiff had been omitted, a better complaint could have been drawn.

The defendants may be able to set up and prove facts in mitigation of damages, but *prima facie*the plaintiff in the original action was entitled to recover the whole amount of the original bail, against the present plaintiff, and of course he is equally entitled to recover the same against the present defendants.

The order overruling the demurrer in this case must be affirmed, with costs.