| Mo. | Oct 15, 1866
delivered the opinion of the court.
The respondent, late sheriff of Franklin county, instituted a suit in the Circuit Court of that county against the appellants upon a bond executed by them for the forthcoming oE certain property found in their possession, and which had been attached as the property of one Shafty at the suit of said McClure. The property was retained in the possession of the appellants under the provisions of § 29, art. 1, of the Attachment Law, R. C. 1855.
This action seems to have been brought and tried in the court below upon the theory, that notwithstanding the delivery of the property to the officer, to be sold to satisfy the debt due the attaching creditor, still the appellants were responsible for any damage done or suffered to the property after the execution of the bond, and that it must necessarily be
The condition of the bond is simply that the property attached “shall be forthcoming when and where the court shall direct"; and further, that the obligors “shall abide the judgment of the court.”
The legal effect of the taking of such a bond by the officer is simply to relieve him from the care and custody of the property, and give the possession to the parties executing it. When lie has taken a good and sufficient bond and returned the same as required by law, his whole duty in the premises has been performed. The sheriff has no right whatever to institute any proceedings upon the-bond, but must under the order of the court, upon the happening of a certain contingency, assign the same to the plaintiff, his executor or administrator, upon whose motion a judgment will be entered up by the court against the obligors “for the value of such property”; or if its value should exceed the amount due on the execution, then for the actual “ amount due, with twenty per cent, damages,” &c. The record shows the fact that the property was delivered up to the officer, who sold it and applied the proceeds to the payment of the execution in his hands; and we think no breach of the bond has been alleged in this case that would authorize an action by the officer or anybody else.
The judgment of the Circuit Court must therefore be reversed and the cause remanded.