Franklin v. Hunt — 2 Hill & Den. 671

Majority

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Franklin, late sheriff, &c. vs. Hunt, impleaded, &c.

Headnote

A bond was executed to a sheriff by a deputy and his sureties, conditioned to indemnify the former from all costs, damages, expenses and trouble touching and concerning the return and execution of process, and concerning the not executing or wrongful execution of process .• Held, that it should not be so construed as to render the obligors liable for the costs and expenses of suits wrongfully instituted against the sheriff, and wherein he recovered; but in order to constitute a breach, some improper act or omission of the deputy must be shown, for which the sheriff could be lawfully made answerable.

Demurrer to plea in scire facias. The writ was against Westley Anderson, Alva Hunt and Adam G. Ransom, and stated that in May term, 1839, a judgment was recovered in this court, in favor of the plaintiff against the defendants, in a bond executed by them to the plaintiff as sheriff of the county of Chenango, dated January 16th, 1833. The bond contained a recital that Anderson, one of the defendants, had been appointed deputy sheriff; and the condition was, that if the said Anderson should at all times, <fcc. save harmless and indemnify the plaintiff from all costs, damages, expenses and trouble touching and concerning the return and execution of all such processes, writs, Spc. as should be directed to the plaintiff, as such sheriff, and executed by the said Anderson ; and of and concerning the not executing or wrongful execution or detaining in his hands any such process, ifc., then the said bond should be void, &c. The scire facias then alleged as a breach of the said bond, additional to the breaches on which judgment had been previously rendered, that a writ of replevin for a wagon was issued from this court against Miller in favor of Ellis, and delivered to said Anderson to be executed, who seized the property—that Miller sued the plaintiff, as such sheriff, in March, 1834, for the penalty given by 2 R. IS. 433, § 18, 2d ed., alleging that he (Miller) was dispossessed of the wagon by Anderson, who delivered it to Ellis after Miller had interposed a claim of property therein and had tendered to An

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derson his fees and the fees of the jury for trying the claim— that after the commencement of the said suit by Miller, the plaintiff notified Anderson of the pendency and object thereof, and requested him to indemnify the plaintiff from all costs, damages, &c. touching and concerning said suit—that the plaintiff retained an attorney to defend the suit, which was tried, and a verdict rendered for Miller—that a new trial was granted, and judgment as m case of nonsuit finally obtained against Miller, in June, 1839—that the costs of the plaintiff here, (the defendant in that suit,) were taxed at $345,94—that Miller became insolvent, and unable to pay the costs—that Anderson had not paid the costs, counsel fees, expenses and disbursements incurred by the said attorney in defending said suit, but had refused to do so ; and that, by reason of such refusal, the plaintiff had been compelled to pay his said attorney the following sums of money, (enumerating them,) amounting in the whole to $544,91.

The defendant Hunt pleaded separately, that Anderson performed his duty according to law in the execution of the said writ of replevin—that he did not dispossess Miller of the wagon and deliver it to Ellis after due notice and tender of sheriff’s fees, &c.—and that the plaintiff in this suit was not in any way held or adjudged chargeable or liable to any penalty by reason of the default, misconduct or improper execution of the said writ of replevin, or for any neglect of duty, &c.; wherefore judgment was thereupon rendered in said suit in favor of the said sheriff, &c. To this plea the plaintiff demurred, and the defendant Hunt joined in demurrer.

H. Van Derlyn, for the plaintiff.

John A. Collier, for the defendant.

By the Court,

The scire facias avers that the defendant Anderson, a deputy sheriff, became bound . with the other defendants, his sureties, to the plaintiff, who

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was sheriff, in a bond conditioned that Anderson should indemnify the plaintiff from all costs, damages, expenses and trouble, touching and concerning the return and excecution of process. It then shows a suit against the plaintiff by one Miller, professedly to recover the penalty of $250, on the ground that Anderson had, contrary to the statute, delivered property taken under a writ of replevin against Miller, after due notice of a claim of property. That the plaintiff gave notice to Anderson, and requested him to indemnify, &c. as in the bond. That judgment as in case of nonsuit was rendered against Miller; and $345 costs awarded to the sheriff, he having retained an attorney to defend. That Miller proved insolvent.

The single question is, whether such a case be within the meaning of the bond. There is no averment in the declaration that Anderson was actually in default, and the plea denies that he was. The plaintiff’s costs indeed accrued in a suit concerning the execution of process, and Anderson in terms bound himself to indemnify against such costs. If the condition is to be taken literally, therefore, he and his sureties are perhaps liable. But so is a warrantor, or covenantor for the quiet enjoyment of land, liable according to the letter of his covenant, even for a tortious eviction. Yet the meaning of the covenant has in both cases always been restricted to an eviction by reason of some defect in the covenantor’s title. It has never been extended to the wrongful eviction of a third person. We think the clause relied on in the condition of this bond must be taken with the like restriction ; that it should not be so construed as to cover suits wrongfully instituted; but that some act or omission of Anderson must be shown, of such a character that the plaintiff would be legally bound to answer for it.

It is supposed that the condition of the bond, by farther providing in a distinct clause for indemnity against the not executing or wrongfully executing of process, indicates that the clause immediately in question was intended of costs incurred like those in the suit by Miller. But

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we cannot yield to the force of mere implication as giving to any part of the condition what we think an absurd construction—a construction which fixes on the deputy and his sureties an obligation to pay whatever sums the obligee might have incurred in defending any number of suits brought by litigious persons on false surmises that Anderson had not done his duty. It may be conceded, perhaps, that he and his sureties might have bound themselves to defend suits brought on such surmises, true or false," had they used these words. But they have not. The words in both clauses are general, and should have a reasonable interpretation. The more stringent clause was probably intended to cover mere innocent mistakes by which the sheriff might be subjected to injury; such as in any but a legal sense could hardly be called wrongful.

There must be judgment for the defendant Hunt.

Ordered accordingly.