9 Pa. Super. 45 | Pa. Super. Ct. | 1898
Opinion by
Joshua C. Armstrong issued a foreign attachment against W. O. Shallcross and Francis Shallcross, which was executed by attaching moneys due the defendants therein. Before its execution, the sheriff required indemnity, whereupon a bond was given him-, signed by Armstrong, and George C. Courtright, conditioned to be void if the obligors “shall and will save harmless and keep indemnified” the said sheriff, his officers, etc., “of and from all manner of suits, action and actions, damages, costs and charges whatsoever, that shall or may accrue to him or them, for and by reason of his or their executing the said writ: and if the said plaintiff shall and will prosecute said plea against the said defendant with effect according to law, and abide the judgment and award of said court.” The action was determined in favor of the defendants. Thereupon the sheriff assigned the'bond to them, and they brought this action upon it;
There can be no question as to the validity of the bond. Having been voluntarily given, for a lawful purpose, it may be enforced according to its terms, even though the sheriff had no right to require it: United States v. Hodson, 10 Wall. 395; Slutter v. Kirkendall, 100 Pa. 307; Clark v. Morss, 142 Pa. 311; Sullivan v. Middendorf, 7 Pa. Superior Ct. 71. No further discussion of this point is necessary.
The determination of this case, therefore, turns on the question whether the plaintiff’s claim is embraced in the condition of the bond. This claim cannot be based on the condition to indemnify the sheriff against actions, etc., for executing the writ, and it is not alleged that he has incurred any liability on that score. The plaintiff’s averment in the declaration is “that the said Joshua C. Armstrong failed to prosecute his said action with effect, but on the .contrary thereof has wholly failed therein, and that by reason of the wrongful issuing of the said writ of attachment the said use plaintiffs therein have suffered great loss and damage, to wit: ” the interest on the moneys attached, and costs of the attachment.
The purpose of the bond, as shown by the terms of the condition, and the preceding recital, was manifestly the protection of the sheriff and his officers, and there is nowhere anything to indicate that any protection to the defendants in the attachment was contemplated. Its condition, undoubtedly, embraced any liability which the sheriff incurred through the plaintiff’s failure to prosecute with effect. But it does not extend to an injury sustained by the defendants, unless a right of action against the sheriff thereby accrued to them. As a whole, the condition of the bond is substantially that of a replevin bond. In the action of replevin, the plaintiff’s failure to prosecute with effect makes the sheriff' liable to the defendant for the property replevied, and the condition to prosecute with effect is for his indemnity against such liability. The defendant may, instead of proceeding against the sheriff, take an assignment of the
The scope of the condition to “ prosecute with effect,” and the liability to interest pending an unsuccessful prosecution, Avere considered by the Supreme Court in Com. v. Wistar, 142 Pa. 373, 384. That was an action on recognizances on appeals from a decree of distribution by the orphans’ court, conditioned that the appellant “shall prosecute his appeal with effect, and pay all costs that may be adjudged against him.” The appeals having been dismissed, the appellees contended that the appellant’s failure to prosecute with effect made him liable for inter'
The decisions in attachments against fraudulent debtors, under the act of 1869, have little bearing on the question before us. Under that act, the defendant’s right to sue on the bond is not derived from the sheriff, and the penalty of a breach of condition is specifically defined.
The affidavit of defense, in the present case, does not set forth the ground of defense as clearly as might be done. On the other hand, in the view we have taken of the case, the declaration sets forth no cause of action; therefore, a reply by affidavit was not required, and even had none been made, a judgment for the plaintiff would have been erroneous.
Judgment reversed.