People ex rel. Gibson v. Ring

15 Wend. 623

• Court: New York Supreme Court
• Decided: October 15, 1836
• Status: Published

Opinion

By the Court,

Cowen, J.

The objection that a fi. fa. against the sheriff returned unsatisfied should have been proved, was not raised at the trial. Had it been, the objection might, for aught we know, have been obviated, if there is any thing in it.

The sheriff’s surety bond was (in legal effect) no doubt prospective, viz. that he should (after the datej well and faithfully in all things perform and execute the office of sheriff during his continuance in office. It certainly covered no acts which he had before done. Andrus v. Waring, 20 Johns. R. 166. It is equally clear, however, that it comprehended all acts which as sheriff he might afterwards do; among these was the receipt of the money on the execution. In Andrus v. Waring, the bond was in terms confined to business that should come to the hands of the principal’ The evidence offered, therefore, to show the subsequent receipt of the money should not have been rejected. In this the judge erred, and the nonsuit must, therefore, be set aside, and a new trial granted.