Stevens v. Boyce

9 Johns. 292

• Court: New York Supreme Court
• Decided: October 15, 1812
• Status: Published

Opinion

Per Curiam.

The rejoinder is no answer to the breach assigned in the replication. The sheriff under the statute, may require two sureties in the bail-bond, though the bond is good with one only. He, however, takes the securities (whether one or more) at his peril, and in this- case the defendants had assumed that peril by their bond, for they engaged to save the plaintiff harmless “ for, touching and concerning the return and execution of all processes, writs,’'" &c. And the harm which the plaintiff states in this case, arose touching or concerning the execution o£ a writ. These words were intended to throw the whole peril attending the execution and return of process, by the deputy, upon the deputy. They were not to be confined to eases where the deputy liad failed in good faith and due discretion, but to all the risks which the law attached to the execution of process, and one risk is the permanent and continued-responsibility of the bail tc the arrest. The sheriff runs that risk, and the bond throws that risk upon the deputy, as to acts performed by Mm. The plaintiff is, consequently, entitled to judgment.

Judgment for the plaintiff.