| Mich. | Oct 21, 1859
Clark having sued out an attachment against Philo Durfee and Samuel T. Atwater, as absent defendants, the sheriff of Saginaw levied upon a vessel called the Armada, and Dorr and the other plaintiffs in error, gave bond under the statute, in the usual form, to release it from the levy by undertaking to produce the property to satisfy any execution that should be issued on any judgment in the attachment suit. Durfee and Atwater appeared, and pleaded, and judgment went against them. The sheriff assigned the bond to Clark, the property not being forthcoming, and the latter brought suit in the court below. Upon the trial it was objected that the affidavit in attachment was defective in not averring both defendants to be non-residents for the statutory period, and also in being sworn before the deputy clerk. This objection being overruled, it was further objected that the assignment of the bond, by the sheriff to the plaintiff Clark, was void, because not made in his name of office. This objection also was overruled. The defendants thereupon sought to prove that the vessel, when seized, belonged to one Sidney S. Durfee, and that the sheriff was so informed; and that liens were then existing against her to her full value, which Sidney S. Durfee had paid. The court held these facts, if proved, could make no defense to the action on the bond, and directed a verdict for the value of the vessel. Exceptions were alleged and errors assigned for these reasons.
The affidavit states that “the said Philo Durfee and Samuel T. Atwater are not residents of the state of Michigan, and have not resided therein for three months immediately preceding the time of making this affidavit, and that the said Philo Durfee and Samuel T. Atwater reside in the state of New York.” It is -claimed that this allega
It is also objected that the deputy clerk had no right, except in the absence of the clerk, to administer oaths. However this may have been before the statute of 1850 p. 54, there is no doubt that statute gave the deputy general authority to perform the duties of his principal. It is unnecessary to decide what his powers would have been without that statute. Under it, he had the power in question, because the clerk had.
We think there is nothing in the objection to the form of the assignment. When judgment has been rendered in favor of a jfiaintiff in attachment, and a right of action has accrued on the bond, the plaintiff has an unqualified command over the bond, and may use the sheriff’s name, or require an assignment and sue in his own.— Comp. L. §4757. The sheriff can not refuse to 'assign, and the assignment is not a matter of official discretion. We do not regard the formalities of such an assignment as at all essential. Being executed by the right person, and it being his positive duty to execute it, the insertion or omission of his official character can not affect its legal validity. No question was made as to his identity.
We also think the view taken ,by the court below, of the liability of the defendants below, was correct. The sheriff having seized the Armada as the property of Philo Durfee and Samuel T. Atwater, if any one else owned her the owner might have brought replevin or trespass. But the plaintiffs in error saw fit to avail themselves of a statutory right, and bonded the property. In availing themselves of this privilege, which the sheriff could not interfere with or prevent, they must assunle the conditions which the statute imposes. They must give bond either to pay the amount of any judgment recovered, or to produce the property to
If they had covenanted to pay the judgment, it could hardly be urged in defence that the property, when attached, belonged to a stranger. The law does not oblige any one to bond such property, and if he assumes, for the sake of obtaining it, to pay the debt, it is his own folly if he do so unwisely. The case is not different where he undertakes to return the attached property. He should not meddle with it until he knows what he can do safely. There is no injustice in the statutory rule. But just or unjust, the statute is peremptory, and admits of no remission. Judgment can be rendered for nothing short of the amount necessary to comply with the condition. Where, as here, it is to return the property to satisfy the execution, the value of the vessel being less than the balance due, judgment was proper for that value. — Comp. L. § 4Í5Y. This view is sustained by authority. See Drake on Attachments, §312 etseq.and cases cited. But the statute is so plain that it is not open to construction.
If the defendants below had lost the property by some inevitable accident, and their reception and retention of it had in no way directly or indirectly contributed to its liability to destruction, a question might possibly arise whether the impossibility of producing it would be any excuse for not doing so. When such a case arises, it it will be proper to consider it. But here there does not appear to have been any such difficulty.
The judgment must be affirmed with costs.