Colvard v. Oliver

7 Wend. 497

Opinion

By the Court,

Savage, Ch. J.

It is evident that Sager and Chesebrough were the real parties in the replevin suits. The sheriff had levied on the property of Clark, and it was his duty to sell it, and render the avails to the plaintiffs in the execution ; but the goods were taken from him by other persons. Whether it was his duty to have brought a replevin himself, without-an indemnity, need not be here decided, for the parties in interest undertook themselves to do it with the deputy’s consent. In general, where there is a mere claim of property by a third person, it is proper for the sheriff to call a jury of inquiry; here the suits were brought, it seems, by the advice of Sager and Chesebrough, and upon a claim of property, an inquiry was instituted by the coroner, at which Sager settled, or agreed to settle the suit with Stiles, and about this time a bond of indemnity was executed by Sager and Chesebrough. There can be no reasonable doubt, therefore, that they assumed the management of the causes, and they should be at their risk. Had an application been made by the defendants in the suit that Sager and Chesebrough pay the costs, it would be but ordinary practice to grant it. The same practice has been adopted where the application comes from the nominal plaintiff. The principle is the same; it is this: that the party in interest shall he treated as the real party in the cause, and shall not be screened from responsibility in a summary way, by using the name of another as party to the record. These suits were necessarily brought in the name of the sheriff for the benefit of Sager and Chesebrough, and they must pay the amount for which the sheriff was made liable.

Motion granted with costs.