Cudahy v. Rinehart

Pratt, J.

The court at special term correctly held that where there are •several attaching creditors of the same property the title to which is in dispute, and some give indemnity to the sheriff and others refuse to do so, the latter will be precluded from claiming the avails of the attached property, though their attachments may be prior in- time to those who give indemnity. Smith v. Osgood, 46 N. H. 178; Parker v. Smith, 2 Liv. Law Mag. 770 . The case last cited seems exactly in point. Here, as there, the title to the .attached property being ambiguous, the sheriff refused to sell without indemnity, which the senior attaching creditor refused to give. There would be no propriety in giving the fund thus produced to the creditor who refused to act. The refusal to indemnify must be held to work an abandonment of the attachment as to the property in question in favor of the junior creditor who was willing to take the risk. We think, however, that the court below should have given a more extended application to the doctrine than was done. It ■appears that the plaintiffs, being informed that 100 tierces of tallow might be found, instructed the sheriff to seek for them, and gave him indemnity to make the seizure. His instructions, being in writing, admit of no dispute; they were limited to the 100 tierces, which were not found. Later, certain ■other property was found, and, on the indemnity of a creditor junior to the plaintiff, was sold. The sheriff having paid the proceeds to the indemnitor, the plaintiff now claims to recover from the sheriff $520, the amount thus paid, and in the court below prevailed. We have carefully examined the testimony, and are not able to find that it affords any support to the claim now made, that the indemnity given by the plaintiff could have been applied to any other property than the 100 tierces. The indemnity bond was general in its terms, and did not specify the particular property intended to be taken in reliance upon it. But the written instructions by which it was accompanied are explicit, and are limited to the 100 tierces. It follows that plaintiffs were erroneously allowed to recover the $520 proceeds of property attached upon the indemnity of the junior creditor. Another point should not be overlooked: The plaintiffs introduced no proof that the goods which produced the $520 were the property of the judgment debtors. The sheriff is not estopped from ■objecting to the lack of proof. As against the creditor for whom and by whose instructions he acted, and whose indemnity he received, he could not raise that question. The plaintiffs do not occupy that position. The judgment appealed from must be reversed upon the facts, and new trial ordered, with costs to appellant. All concur.