Whittemore v. Jones

5 N.H. 362

Opinion

By the court.

It has long been the practice in this state to take replevin bonds in the name of the sheriff, and this practice has been sanctioned by a decision directly upon the point. 3 N. H. Rep. 39, Sumner v. Stewart.

The practice is otherwise in Massachusetts. 5 Pick. 236. But the decision there is understood to be grounded upon particular provisions in their statutes.

We consider the question as settled here. .

But it is objected, that the clause in the condition of this bond for the indemity of the sheriff, and his deputies, is illegal, and renders the bond veld, in order to settle the question, which this objection raises, it is necessary to ascertain the legal effect of this clause in the condition. The terms of it are, that Jones shall keep harmless, and indemnify the sheriff', and his deputies, concerning the replevying of the goods. Now we understand the amount of this to be, that the sheriff shall be indemnified so far as he is by law entitled to an indemnity, and no farther. This is, in our opinion, all which this clause in the condition can be construed to mean. Whether the sheriff is, in such a case, entitled to any indemnity, is a question which it is unnecessary to settle at this time. Because if he is not, t'-e manse is merely idle and inoperative, and cmi Lnvc no legal effect ; and if he is entitled to an mde-wily, wo see no reason why he should not have it ir che wplevm Lend. It is said that it cannot be known, v, I a re so eery liad in such a case, what was reccmeod for the sheriff, and what for the defendant in replevin. Uni in is is a mat' ter to be adjusted between idem, and. servo to us to be no concern of him, who gives me cmid. This objeeden is not, however, well founded in fact , I ecansc Intw- can hardly be a case imagined in wide;-' ‘here wold be the least difficulty in ascertaining what v/cs ree re red for ih; use of the sheriff, and what for the use of the defendant in replevin

J-jf-fgmerJfir ike plaintiff.