Marshall v. Stewart , 67 Miss. 494 ( 1889 )

Cooper, J.,

delivered the opinion of the court.

The bond of indemnity provided for by section 1754 of the code is in substitution of the common law liability of the sheriff for the trespass committed by him in levying upon property of one other than the defendant in execution. Swain v. Alcorn, 50 Miss. 320; Shattuck v. Miller, Ib. 386. The statute does not confer a right of action on the bond upon persons who might not have sued the officer for the trespass. The bond is conditioned to pay and satisfy to any person “ claiming title to the property seized, all such damages which such persons may sustain in consequence of such seizure and sale.”

Section 1755, which provides for the remedy on the bond, declares that “any person claiming the property levied on may prosecute a suit.”

The usees in this action, Clifton & Eckford, aver themselves to be the owners of the property seized. The evidence shows a deed from the former owner to one Vasser, trustee, to secure the payment of a debt due to Clifton & Eckford. This does not show that they had either title or claim to the property. It shows merely a right to have a sale of the property by the trustee for their benefit. They could not have sued the sheriff in their own names, and since this could not have been done, they were not entitled to sue as usees in this action.

In Brown v. Lester, 13 S. & M. 392, where suit had been brought in the name of one for the use of another, and the clerk failed in discharging his duty of putting the suit on the issue docket, suit was brought on the bond of the clerk in the name of the governor (to whom it was payable) for the benefit of the usee in the first suit. It was held that the usee might sue, because the condition of the bond was to pay to. the “ party injured” by the neglect of duty, and the injury was to the usee, and not to the nominal plaintiff.

Matthews v. Bailey, 25 Miss. 33, was an action on the bond of a sheriff by the assignee of a judgment under which the sheriff had collected the money demanded. The court upheld the right of the assignee to put this bond in suit in the name of the governor for his use, on the ground that the bond was conditioned to pay the money collected to “ the person or persons to whom the same is due, his or their lawful attorneys, executors, administrators, or assigns,” and the statute authorized suit to be brought by the “party injured.” But for this the right would have been denied.

The bond on which this suit is brought is not conditioned to pay-damages, save only to the persons “ claiming title” to the property levied on and sold, and the statute authorizes such persons alone to sue. The plaintiffs do not fall within the terms of the bond or of the statute conferring the right of suit, and the court properly instructed the jury to find for defendants.

Judgment affirmed.