Sedam v. Taylor

21 F. Cas. 974, 3 McLean 547

• Court: U.S. Circuit Court for the District of Indiana
• Decided: May 15, 1845
• Status: Published

Opinion

OPINION OF THE COURT.

This fiction is brought on the official bond given by the defendant Taylor, as marshal, for taking insufficient security on a replevin bond. The defendants pleaded that, after the taking and return of the replevin bond, a fi. fa. was issued and placed in the hands of the marshal, who, before the bringing of this suit, did levy on divers goods and chattels, lands and tenements of the said sureties in the replevin bond; to the full value of the judgment Interests and costs, which levy remains undis-posed of, &c. To this the plaintiff replies, that the lands and tenements levied upon by the fi. fa. were subject to a prior lien of a judgment against the said sureties, for the sum of $2,760.38, on which execution was issued, and the above land sold, the proceeds of which sale were insufficient to pay that judgment, &c. To this replication, the defendants demurred.

The replication is bad, as it does not answer the plea. In the plea, the levy is alleged to have been on divers goods and chattels, lands and tenements. The plea does not answer to the goods and chattels, but to the lands and tenements only. The replication may be true, and the plea of the defendant may, notwithstanding, be a bar to the plaintiff’s action. The sureties of the marshal were bound collaterally, for the performance of his duty. The plaintiff, in this action, seeks to make them liable, where the plea avers there was a levy on goods, &e., to the full value of the judgments. This is, clearly, a bar to the aetion. Such a levy is a bar to an action on an injunction or appeal bond. Cass v. Adams, 3 Ohio, 223; M'Intosh v. Chew, 1 Black. [66 U. S.] 289.

On leave, the replication was amended.