Prewitt v. Garrett

6 Ala. 128 | Ala. | 1844

ORMOND, J.

-The bond in this case was given by the defendants in execution, to indemnify the sheriff against the consequences of levying on and selling the property of a stranger to the judgment and execution, for its satisfaction. This was a promise to indemnify the sheriff against the consequences of a trespass, which he was invited to commit; and, being illegal, no right of action can grow out of it.

The plaintiff in an execution may indemnify the sheriff for levying on and selling property supposed to belong to the defendant, though out of his possession, and claimed by another; but it is impossible to conceive of a case in which the property of a stranger to the judgment could be sold, at the instance of the •defendant in execution, to satisfy the judgment. The indemnity being to save the sheriff harmless against the consequences of an ■act prohibited by law, cannot be enforced in a court of justice.

The judgment of the court on the demurrer must be, therefore, affirmed.