Jacob Whittemore versus Levi Jones, et a.

This was an action of debt upon a bond given By the defendants, Levi Jones, M. D. Langdell, and William Bruce, to the plaintiff, the sheriff of this county, dated July 10, 18,28, in the penal sum of f400.

The defendants craved oyer of the bond, and also of the condition, which was as follows: — u The condition of this obligation is such, that whereas the said M. D. Langdell and L. Jones, have commenced an action of replevin against Jacob Hutchinson, &c. Now if the said M. D. Largdcif and Levi Jones shall prosecute their said action of' cplcvin to final judgment, and pay all such costs and d v-r.gcs as the said Jacob Hutchinson shall recover against them, and shall keep harmless, and indemnify the above named sheriff, and his deputi es, for, and concerning the replevying of the said goods and chattels, then this obligation to be void,” &c.

The defendants then demurred to the declaration, and the plaintiff joined in demurrer.

By the court. It has long been the practice in this state to take replevin bonds in the name of the sheriff, and this practice has been sanctioned by a decision directly upon the point. 3 N. H. Rep. 39, Sumner v. Stewart.

The practice is otherwise in Massachusetts. 5 Pick. 236. But the decision there is understood to be grounded upon particular provisions in their statutes.

We consider the question as settled here..

But it is objected, that the clause in the condition of this bond for the indemity of the sheriff, and his deputies, is illegal, and renders the bond veld, in order to settle the question, which this objection raises, it is necessary to ascertain the legal effect of this clause in the condition. The terms of it are, that Jones shall keep harmless, and indemnify the sheriff', and his deputies, concerning the replevying of the goods. Now we understand the amount of this to be, that the sheriff shall be indemnified so far as he is by law entitled to an indemnity, and no farther. This is, in our opinion, all which this clause in the condition can be construed to mean. Whether the sheriff is, in such a case, entitled to any indemnity, is a question which it is unnecessary to settle at this time. Because if he is not, t'-e manse is merely idle and inoperative, and cmi Lnvc no legal effect; and if he is entitled to an mde-wily, wo see no reason why he should not have it ir che wplevm Lend. It is said that it cannot be known, v, I a re so eery liad in such a case, what was reccmeod for the sheriff, and what for the defendant in replevin. Uni in is is a mat' ter to be adjusted between idem, and. servo to us to be no concern of him, who gives me cmid. This objeeden is not, however, well founded in fact, I ecansc Intw-can hardly be a case imagined in wide;-' ‘here wold be the least difficulty in ascertaining what v/cs ree re red for ih; use of the sheriff, and what for the use of the defendant in replevin

J-jf-fgmerJfir ike plaintiff.