The opinion of the court was delivered by
Williams, Ch. J.
This is an action of debt on jail bond, to which the defendant pleads a release by the plaintiff, Weeks. The plaintiff replies, that the bond was the property of Hezekiah Niles, of which notice was given to the defendant before the date of the release, and that Weeks never had any equitable interest in the bond. To this replication there is a demurrer.
An objection has been taken to the form of the plea, as it is not stated that the release was executed since the last continuance of the case. The plea was put in at the September term of the court, and the" release was executed on the ninth of the same month. The defect in the plea, if there is any, is only in a matter of form, and the plaintiff should have' demurred specially, if he considered that there was a defect in this particular.
In the replication, it is to be noticed, that it is not alleged that the bond was either assigned or delivered to Mr. Niles; nor is it stated how, when, or in what way, it ever became his property. Unless, therefore, such a bond is taken entirely for the benefit of the creditor in the execution, and the interest therein is in him, when taken, this replication cannot be sustained. A jail bond is taken, principally, for the indemnity of the sheriff, and belongs to him until it is assigned. It is assignable to the creditor, and no action can be maintained against the sheriff, until the creditor has failed to recover the contents of the persons who executed the bond, if the sheriff- shall on demand assign the bond to the creditor. But, until assignment, the sheriff may maintain an action in his own "name, where there has been a breach of the conditions; and as he is ultimately responsible for the ability of the signers of the *75bond, he may prefer to maintain the action rather than assign. If the creditor does not demand the bond, and the signers are in failing circumstances, if he can secure it on real estate, which the creditor may not think proper to accept, or if, from any cause, it is his interest to retain the bond, he may commence a suit thereon in. his own name and for his own benefit. If he can commence a suit, he may control it, receive the pay, make a compromise, take real or personal estate in satisfaction, and in short, act in prosecution of the suit for his own benefit. But in this he must act fairly and with good faith, and without any attempt or design to wrong or defraud the creditor. As the creditor may be considered as having an interest in the bond, the sheriff may not wantonly, or fraudulently, discharge a bond thus taken. A bankrupt sheriff would not be permitted to discharge or release a bond, with an intent to injure or defraud a creditor. A creditor might be permitted, in certain cases, where the sheriff was a bankrupt, and fraudulently attempted to control a jail bond, or wantonly refused to assign, to commence a suit, in the name of the sheriff, on such bond, and pursue it for his own benefit. It will be sufficient, however, when such cases arise, to determine on the respective rights of the creditor and the sheriff. It is sufficient, in this case, to say, that no such facts are stated in this replication, neither fraud or bankruptcy in the sheriff; nor is it stated that the suit is'brought for the benefit of the creditor, and how or in what way he ever acquired any interest or property in the bond, either legally or equitably, so as to preclude Mr. Weeks from commencing this action in his own name, or controlling a suit thus brought. That this bond was ever in the possession of Mr. Niles, does not appear from any facts stated in the replication. The replication must therefore be adjudged insufficient, and judgment rendered for the defendant.