| Ala. | Dec 15, 1878
The questions arising in this cause are presented by the pleadings, and the one of importance is the validity of the bond on which the suit is founded. The complaint sets out the bond in haec verba, and its recitals are, that the appellants had commenced an action of detinue against one Perry Reese for the recovery of two hundred and thirty bushels of corn, and obtained an order directing the sheriff to take the corn into possession. The sheriff having seized the corn in obedience to the order, it was claimed by the principal obligor, Ann Reese, as her property, and delivered to her on the execution of the bond, with condition “ to prosecute her claim to effect or failing therein, shall have the above described corn forthcoming for the satisfaction of said judgment of said Circuit Court if it be found liable therefor, and pay such costs and damages as may be recovered for putting in said claim for delay, then in either of said events, this obligation to be void,” &c. The amended complaint assigns as breaches of the bond, the recovery of judgment by the plaintiffs in the action of detinue, and the ascertainment of the value of the corn at one hundred and seventy-five dollars, for which judgment was rendered, together with seventeen 45-100 dollars costs of suit — the issue of execution thereon, and the return thereof, no property found. Further, that the bond was executed bj^ the principal obligor to obtain possession of the corn, and that she did thereby obtain such possession, and that she failed to prosecute her claim to effect, and failed to have said corn forthcoming for the satisfaction of the judgment of the Circuit Court, but kept and converted the same to her own use.
It is certainly true there was when the bond was executed, no statute which authorized the sheriff to take it, nor any which authorized a stranger claiming adversely to a plaintiff and defendant in an action of detinue, to arrest the execution of an order of seizure by the interposition of a claim of ownership, and the execution of a forthcoming or delivery bond, if he did not successfully prosecute his claim. The bond so far as is shown by its recitals, or the averments of the com
The duty of the sheriff, as prescribed by the statute, was to seize the property, if found in the possession of the defendant in the action of detinue, and to hold it for five days, unless the defendant gave a forthcoming or delivery bond, and thereby regained possession. The defendant, by his neglect to give the bond, would place himself in default, and the plaintiffs had the right to give such bond, and if they neglected for five days, the duty of the sheriff was to restore possession to the defendant. — Code of 1876, §§ 2942-3. The argument against the validity of the bond is, that the sheriff by accepting it, and surrendering possession of the corn to the principal obligor, disabled himself from performing the duties which the statute imposed on him.
The argument overlooks the fact, that the bond is not payable to the sheriff, contains no covenant or promise of indemnity to him, and is only a security for the benefit of the plaintiffs. A promise or a covenant to a sheriff to neglect or to violate official duty is void ; and if the bond had been executed in consideration of a violation or neglect of duty by the sheriff — if the purpose had been to prevent the plaintiffs or the defendant in the detinue suit from exercising the right of obtaining possession of the corn, which the statute confers, and of indemnifying the sheriff against loss because of the wrongful delivery to the principal obligor, it may be conceded the bond could not be enforced. But this is not the purpose for which the bond is executed, nor
The claim of property by the principal obligor, and a trial of the right in the mode attempted, as a judicial proceeding, was a mere nullity. The fact remains that it was made without the consent of the appellants, and that they have suffered from it all the injurious consequences which could have resulted, if the proceeding had been valid and followed by a judgment in their favor. The event on which the bond was to remain of full force has happened, and there is no principle of the common law, and no statute which inhibited its execution or enforcement. — Stevenson v. Miller, 2 Littell, 307; Claasen v. Shaw, 5 Watts, 468" court="Pa." date_filed="1836-10-15" href="https://app.midpage.ai/document/claasen-v-shaw-6311656?utm_source=webapp" opinion_id="6311656">5 Watts, 468. Though it was taken without the consent of the plaintiffs, yet intended for their ■protection and payable to them, they could adopt it, as they could accept any other contract made for their benefit without their knowledge or authority. The sheriff may have rendered himself liable to the plaintiffs or to the defendant in the detinue suit, by parting with the possession of the corn. The plaintiffs have ratified the unauthorized act by the acceptance of the bond, and whatever cause of complaint the defendant may have, is no ground of defense to the appellees.
The judgment is reversed and the cause remanded.