Bank of Utica v. Dill

1 Paige Ch. 467

• Court: New York Court of Chancery
• Decided: May 5, 1829
• Status: Published

Opinion

The Chancellor :—It is not necessary for the decision of this cause to inquire whether the bail can be liable in any case before a recovery has been had against the sheriff or his personal representative. The decison of the Supreme Court in The People v. Spraker & Yates, (18 John. *Rep. 390,) when examined carefully, does not seem to go that length. It was evident in that case that the directions of the statute might have been complied with, and the breach of the condition of the bond which was there assigned was one for which the original sureties were not liable. If a recovery against the sheriff is necessary in all cases before a suit can be sustained against his sureties, there is no remedy in this case, either at law or equity, because the statute has made no provision for a proceeding against his personal representative.

Without expressing any opinion on the question whether the Supreme Court would permit the bond to be put in suit upon a proper application, showing that the sheriff had collected the money and died insolvent, and that there was no personal representative against whom a suit could be prosecuted, 1 am satisfied if the complainants have any remedy against the bail, the Supreme Court is the proper tribunal to afford that relief. It was evidently the intention of the legislature to give to that court power to administer relief to the parties injured by the default of the sheriff, to the full extent to which the sureties are liable. The condition of the bond is broad enough to reach every possible case where the bail ought to be made liable. And if they are liable at all, it must be by a suit on the bond in the name of the people, under the equity of the fifth section of the act.

The demurrer must, therefore, be deemed to be well taken in this case.