Hofheimer v. Campbell , 7 Lans. 157 ( 1872 )

By the Court—

Gilbert, J.

No question appears to have been made in the court below that the defendant had become liable by reason of the failure to justify of the sureties approved by him, and we think it cannot be raised here for the first time. The complaint avers that the sureties failed to justify, and no new sureties were furnished, and that the “ defendant became liable therefor."’ This allegation, not having been denied, stands admitted. If the counsel for the defendant intended to raise any question as to the liability of the sheriff on this ground, he should have called the attention of the court to it, so that an opportunity might have been afforded the plaintiff for obviating the objection by evidence. Not having done so, the objection is not available on appeal. But we think that the facts that the sureties failed to justify and were not accepted, and that no new sureties were furnished, of themselves established the liability of the sheriff. Pecuniary responsibility is not the only subject involved in the question of the sufficiency of the sureties. The statute (Code, § 210) requires that they shall justify in like manner as upon bail on arrest. If they do not justify they are not sufficient. In order to justify they must possess the qualifications prescribed in the case of bail on arrest (Code, § 213), among which are being a resident and householder or freeholder within the State, as well as being worth the requisite amount. The failure to justify furnishes satisfactory evidence that the sureties did not possess either of these qualifications; and their affidavit attached to the undertaking is not legal evidence to the contrary. It was the duty of the sheriff to take none but sufficient sureties. Having omitted this duty the statute makes him responsible for their sufficiency. The obvious meaning of this language is that if the sureties turn out to he insufficient, the sheriff shall be liable, in like manner as the sureties; for the omission to take sufficient sureties makes him a quasi trespasser. When the sureties do not justify it is not necessary to sue them in order to establish their insufficiency. .

The agreement set up in the answer constituted ho defence. If it was exacted or taken by the sheriff, upon a delivery of the property before judgment, it operated directly as an indemnity against a violation of the sheriff’s duty; for he had no right to deliver the property to Beamish before judgment, except by virtue of section 211 of the Code. If it was exacted or taken upon a delivery of the property after the judgment in favor of Beamish it was illegal, because it was the duty of the sheriff to return the property unconditionally. In either case, therefore, the taking of the agreement was in violation of the sheriff’s duty, and, consequently, was illegal and void.

The judgment should be affirmed, with costs.

Judgment affirmed.