Opinion by
Greene, J.
This was an action of debt on a bond executed by'Edwin Wilcox, as principal, and Joseph IJpham and Francis' J. O. Peasley as sureties, to release goods taken hy attachment in favor of plaintiffs. Service only'on Peasley who appeared and interposed several jileas in defence. Issue was joined upon the first and second, and the'plaintiffs demurred to-'the third, fourth and fifth ploasy and'filed their rejilication to the sixth,, to which defendant, demurred. The court overruled the demurrer to the three jileas; and sustained the defendants demurrer to the rejilication. The jilaintiffs refusing to reply over to the four jileas, judgment Was rendered against them on demurrer.
This ruling of the court upon the two demurrers is now* assigned for error.
The third and fourth jileas allege in substance, that after the execution of the bond and the delivery of the goods to Wilcox, the same goods were taken from him, and his sureties by virtue of a writ of attachment in favor of Austin and Spicer, and by a like writ in favor of the Merchants Exchange bank of New York, both issued against Wilcox subsequent to the attachment, from which the goods were replevied hy virtue of said delivery bond.
[53]*53The fifth plea aversdhat one-item of the goods — a piano— was taken from their possession by virtue of a writ of «replevin issued at the suit of Susan Whittlesey, and that the balance of the goods were lost without their negligence.
We are now to inquire, do the facts alleged in each of the above pleas constitute a good bar to the action ? Do they avoid the conditions of the bond ?
The attachment law provides, that the property attached shall remain in the hands of the officer who served the writ, to abide the judgment of the court, unless the defendant shall give bond in double the value of the property, with -..two sufficient sureties, made payable to the plaintiff, “ and conditioned that said property or its appraised value, shall be forthcoming to answer the judgment of the court in . said suit; ” Eev. Stat. 79 § 10. The conditions are unqualified and explicit. They furnish no other alternative than the production of the property or its appraised value to answer the judgment. But the ,.twelffch-<section. of the act provides, that “ should the property or any portion thereof be lost or destroyed by unavoidable accident or without negligence, the condition of-said 1>ond shall not be deemed to have been broken.” No other circumstance or contingency, than -such loss or destruction, can be alleged under the statute, to (release the obligors from a compliance with the conditions of the bond.
But it is contended that the subsequent attachment, by which the law took unavoidable possession of the property from the obligors, should -release them from liability ; that though the statute does not so expressly declare, yet such may be inferred as the: intention of the law ; that the delivery bond was only intended to change the custody of the property from the hands of the sheriff into those of the defendant to abide the “ judgment of the court; ” and that the levy is not released nor the attachment dissolved by the (-execution of the delivery bond.
Ji' true .that the levy is not released by the execution of [54]*54tlie bond, tbe other conclusions formed by counsel for defendant might be supported by law, hut if such lien is extinguished by the bond, it would defeat the object of the statute and the remedy intended for the vigilant creditor,, to decide that the obligors shall he released by the levy of a junior attachment on the same property. To support the position that the lien is not impaired by the delivery bond* the seventh section of the attachment act is cited — Kev. Stat. 79 — which declares that the property attached shall he hound from the time of serving the writ. The tenth, section provides that the property attached shall remain in the hands of the officer who served the writ, or in his care, unless a delivery bond is given. It is then to be restored to the defendant or to the person who may have replevied the same, upon condition that the property or its appraised value, shall be forthcoming to answer the judgment in the suit. Upon these conditions, then, the property is placed, from the hands or care of the officer, under the absolute control of the defendant, and the bond is substituted for the plaintiff’s lien upon the property. The act appears to contemplate that the attachment is relinquished for the bond, and makes the sheriff responsible for its sufficiency. § 13. By requiring ample security on the bond, and by making the sheriff liable for its- sufficiency it may well be assumed, that no other means of payment is designed by the law, and that it intended a release of the property from the attachment. The delivery bond fully answers the object-of the attachment. And as it insures the payment of the debt, there can he no longer any motive at law, for regarding the attachment as operative. Having- answered the purpose for which it was issued, its power ceases by its own limitation. Should the property be forthcoming agreeable to the conditions of the bond, it would not he placed under the attachment nor revive its force, but it might be placed under execution to satisfy tbe judgment in the suit.
We think it clear then, that the execution of the delivery [55]*55bond left the property in possession of the debtor as free and tmincumbered as it was before the attachment levy. He had it in his power to sell or otherwise dispose of the property; and if sold, the vendee’s title would not be subject to the attachment lien. The fact that he had the right to retain or dispose of the property, that the express condition of the bond could be complied with, without restoring it to the officer, supports the position that the lien was released by the bond. This view is fully authorized in Brown v. Clark, 4 How. 4, in which it was held that property levied upon by execution is released by a forthcoming bond. This was in affirmance of the doctrine established in Mississippi where the bonds contain the separate condition to have the property levied on, forthcoming on the day of sale ; and not in the alternative to bring- forth the property, or its appraised value, as provided by our statute. Hence, under our law there is stronger reason for the rule that the bond vacates the lien. But on the other hand, the forthcoming bond of Mississippi upon a breach, or forfeiture becomes a statutory judgment against the defendant and sureties, and operates as a lien upon the real and personal estate of all the obligors ; and this difference it is claimed, weakens the authority of Brown v. Clark in its application to this case. This objection is removed in the Bank of U. S. v. Patton et. al., 5 How. Miss., 200, in which the court declare what would have been the effect of the forthcoming bond, if the statute had not annexed to it the force of a judgment ; and say, “ as it releases the levy and restores the property to the debtor, it is tantamount to a satisfaction of the execution, and the creditor would be left to pursue his remedy upon, the bond.” This view is approved in Brown v. Clark, and hence that case has full application as authority, to the ease at bar.
We conclude then that the attachment levy was released by the delivery bond, that the defendant thereupon regained iffs former right to the property; that as the plaintiff in the [56]
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Opinion by
Greene, J.
This was an action of debt on a bond executed by'Edwin Wilcox, as principal, and Joseph IJpham and Francis' J. O. Peasley as sureties, to release goods taken hy attachment in favor of plaintiffs. Service only'on Peasley who appeared and interposed several jileas in defence. Issue was joined upon the first and second, and the'plaintiffs demurred to-'the third, fourth and fifth ploasy and'filed their rejilication to the sixth,, to which defendant, demurred. The court overruled the demurrer to the three jileas; and sustained the defendants demurrer to the rejilication. The jilaintiffs refusing to reply over to the four jileas, judgment Was rendered against them on demurrer.
This ruling of the court upon the two demurrers is now* assigned for error.
The third and fourth jileas allege in substance, that after the execution of the bond and the delivery of the goods to Wilcox, the same goods were taken from him, and his sureties by virtue of a writ of attachment in favor of Austin and Spicer, and by a like writ in favor of the Merchants Exchange bank of New York, both issued against Wilcox subsequent to the attachment, from which the goods were replevied hy virtue of said delivery bond.
[53]*53The fifth plea aversdhat one-item of the goods — a piano— was taken from their possession by virtue of a writ of «replevin issued at the suit of Susan Whittlesey, and that the balance of the goods were lost without their negligence.
We are now to inquire, do the facts alleged in each of the above pleas constitute a good bar to the action ? Do they avoid the conditions of the bond ?
The attachment law provides, that the property attached shall remain in the hands of the officer who served the writ, to abide the judgment of the court, unless the defendant shall give bond in double the value of the property, with -..two sufficient sureties, made payable to the plaintiff, “ and conditioned that said property or its appraised value, shall be forthcoming to answer the judgment of the court in . said suit; ” Eev. Stat. 79 § 10. The conditions are unqualified and explicit. They furnish no other alternative than the production of the property or its appraised value to answer the judgment. But the ,.twelffch-<section. of the act provides, that “ should the property or any portion thereof be lost or destroyed by unavoidable accident or without negligence, the condition of-said 1>ond shall not be deemed to have been broken.” No other circumstance or contingency, than -such loss or destruction, can be alleged under the statute, to (release the obligors from a compliance with the conditions of the bond.
But it is contended that the subsequent attachment, by which the law took unavoidable possession of the property from the obligors, should -release them from liability ; that though the statute does not so expressly declare, yet such may be inferred as the: intention of the law ; that the delivery bond was only intended to change the custody of the property from the hands of the sheriff into those of the defendant to abide the “ judgment of the court; ” and that the levy is not released nor the attachment dissolved by the (-execution of the delivery bond.
Ji' true .that the levy is not released by the execution of [54]*54tlie bond, tbe other conclusions formed by counsel for defendant might be supported by law, hut if such lien is extinguished by the bond, it would defeat the object of the statute and the remedy intended for the vigilant creditor,, to decide that the obligors shall he released by the levy of a junior attachment on the same property. To support the position that the lien is not impaired by the delivery bond* the seventh section of the attachment act is cited — Kev. Stat. 79 — which declares that the property attached shall he hound from the time of serving the writ. The tenth, section provides that the property attached shall remain in the hands of the officer who served the writ, or in his care, unless a delivery bond is given. It is then to be restored to the defendant or to the person who may have replevied the same, upon condition that the property or its appraised value, shall be forthcoming to answer the judgment in the suit. Upon these conditions, then, the property is placed, from the hands or care of the officer, under the absolute control of the defendant, and the bond is substituted for the plaintiff’s lien upon the property. The act appears to contemplate that the attachment is relinquished for the bond, and makes the sheriff responsible for its sufficiency. § 13. By requiring ample security on the bond, and by making the sheriff liable for its- sufficiency it may well be assumed, that no other means of payment is designed by the law, and that it intended a release of the property from the attachment. The delivery bond fully answers the object-of the attachment. And as it insures the payment of the debt, there can he no longer any motive at law, for regarding the attachment as operative. Having- answered the purpose for which it was issued, its power ceases by its own limitation. Should the property be forthcoming agreeable to the conditions of the bond, it would not he placed under the attachment nor revive its force, but it might be placed under execution to satisfy tbe judgment in the suit.
We think it clear then, that the execution of the delivery [55]*55bond left the property in possession of the debtor as free and tmincumbered as it was before the attachment levy. He had it in his power to sell or otherwise dispose of the property; and if sold, the vendee’s title would not be subject to the attachment lien. The fact that he had the right to retain or dispose of the property, that the express condition of the bond could be complied with, without restoring it to the officer, supports the position that the lien was released by the bond. This view is fully authorized in Brown v. Clark, 4 How. 4, in which it was held that property levied upon by execution is released by a forthcoming bond. This was in affirmance of the doctrine established in Mississippi where the bonds contain the separate condition to have the property levied on, forthcoming on the day of sale ; and not in the alternative to bring- forth the property, or its appraised value, as provided by our statute. Hence, under our law there is stronger reason for the rule that the bond vacates the lien. But on the other hand, the forthcoming bond of Mississippi upon a breach, or forfeiture becomes a statutory judgment against the defendant and sureties, and operates as a lien upon the real and personal estate of all the obligors ; and this difference it is claimed, weakens the authority of Brown v. Clark in its application to this case. This objection is removed in the Bank of U. S. v. Patton et. al., 5 How. Miss., 200, in which the court declare what would have been the effect of the forthcoming bond, if the statute had not annexed to it the force of a judgment ; and say, “ as it releases the levy and restores the property to the debtor, it is tantamount to a satisfaction of the execution, and the creditor would be left to pursue his remedy upon, the bond.” This view is approved in Brown v. Clark, and hence that case has full application as authority, to the ease at bar.
We conclude then that the attachment levy was released by the delivery bond, that the defendant thereupon regained iffs former right to the property; that as the plaintiff in the [56]*56attachment had taken the bond in substitution of the property, he thereby relinquished all control or claim to it; and that defendant could dispose of it at Ms election. It follows therefore, that the property was subject to the payment of defendant’s debts, and to any attachment levy, and if taken by attachment or other legal process, such taking could not satisfy the conditions of the bond. Those conditions are absolute unless the property or some portion thereof he lost or destroyed by some unavoidable accident or without negligence. No other excuse than such as will come within the letter of this statute can be set up by the obligors ; no other could have been contemplated by the law ; and this we think was interposed for the benefit of sureties who may have depended upon the property in the hands of the defendant, or in their own charge, to meet the conditions of the bond. In connection with ‘this excusing clause in the act, it is insisted 'that the relation and legal liabilities of bailor and bailee -subsisted between the obligors and obligees in the bond. But the views already expressed, show that no-such relation can exist between the parties. The creditors were never entitled to the possession, and after executing the delivery bond, the defendant acquired exclusive right over the property. Hence the argument will not apply, that the obligors, like bailees were not responsible for losses resulting from the strong arm of the law as from irresistible "force. If a -subsequent levy or attachment should be admitted as a good defence, it might result in great abuse and injustice. Designing men could readily bring about the very state of things, that would free them from their obligation, and at the same time deprive the first attaching creditor of all security. Junior or even fictitious creditors might thus be preferred to those who have acted Iona fide and with diligence. It may readily be jDerceived without illustration, how this result could be produced.
But it is argued, that if obligors are held to the strict 3-etter of the statute in their defence, -it may result in great [57]*57hardship to the sureties. It is always hard for a security to pay the debts of another ; it is however, the result of his own undertaking, and we can see no reason why a creditor acting upon the faith of his assumption should be deprived of his dues upon any other ground than that expressed in the act.
Henry W. Starr, for plaintiffs in error'.
L. D. Stockton, for defendant.
The other points raised in this case need not be considered. ’-Sufficient has been said to show error in the court below in overruling the demurrer to the third, fourth and fifth pleas.
Judgment reversed.