1788.
and contended, that is a Sheriff difcharged his duty bona ƒide, and with reafonable diligence, he was not refponfible for confequences which no human forefight could penetrate or prevent.
SHIPPEN, Preʃident.–The only point for decifion is, whether the Sheriff is refponfible for the fufficiency of the fureties at the time of taking the bond ; or at the end of the fuit, when the landlord has eftablifhed his right to the rent for which the goods were diftrained?
The cafe of a bail-bond differs,I think, in one repfect, at leaft, from a replevin bond ; for the fufficiency of the former may fpeedily be enquired into, but the latter muft wait the event of the replevin, which may be fufpended for feveral years, until, perhaps, by the viviffitudes of trade and fortune, the fureties have become infolvent. This, therefore, is certainly a hard part of the Sherriff's duty. But there is likewife, a hardfhip in the cafe of the landlord ; for, by the replevin he is divefted of the immediate fecurity of this tenant's goods, and yet has no right to interfere in the choice of the fureties, that undertake to fee them returned when he has eftablifhed his demand.
From this view, then, it certainly feems reafonable, that he, who is exclufively authorized to take and judge of the fecurity, fhould rather be affected by its eventual infufficiency, than he who has no right to queftion its validity. The authorities, indeed, are pofitive, that, it the fureties do not prove ʃuƒƒicient, the Sheriff is liable ; and, although the cafe muft frequently have happened, no contrary decifio can be produced ; for in Murdock verfus Will (fee ant. 341) and Welʃh verfus Procter, both lately tried here, the Council put the cafes upon the point of infufficiency of the fureties at the time of taking them ; fo that the prefent point never came in queftion.
That the policy of the law in this refpect bears hard upon the Sheriff, may be a reafon with the Legiflature to make fome new provifion for an enquiry into the fufficiency of the bail in an earlier ftage of the caufe; but cannot be a juftification for our deciding, at this time, contrary to an eftablifhed principle.
the court are, therefore, clearly of opinion, that the verdict, on the queftion of law, ought to be in favor of the Plaintiff.
And, accordingly, the Jury gave the Plaintiff damages to the value of the goods at the time they were diftrained.[♦]
[♦]See Murdock verfus Will ant. 341.
