White v. Fratt

Baldwin, J. delivered the opinion of the Court— Terry, C. J. concurring.

This was a bill, filed by the plaintiff, in which he avers that he was Sheriff of Sacramento County, on the 8th September, 1857. That, on that day, Schwartz & Bosler sued out an attachment, against Bullard & Son, for six hundred and twenty-four dollars, and placed it in the hands of plaintiff, as Sheriff; and that on the 10th September, 1857, defendant, Stanford, put in plaintiff’s hands an attachment against the same Bullard & Son, for three hundred and seventy-two dollars; that the Sheriff executed these writs in their order of precedence as to time; when defendant, Wood, served a notice on the Sheriff, that he was the owner of .the property, and demanded its surrender and return. On this, plaintiff notified those creditors of this demand, and requested an indemnifying bond, whereupon the defendants, Fratt and Morgan, for, and on behalf of, Schwartz & Bosler, executed a bond or undertaking of indemnity, in the usual form; and Stanford, on his own account, also executed a bond of indemnity. The bill further charges that judgment in both these attachment cases has been rendered, and that executions issued on them, a sale of the property had, and the money arising therefrom, paid over, viz : Schwartz & Bosler, six hundred and sevonty-one dollars and thirty-one cents, and L. Stanford, three hundred and ninety-one dollars and eighty-three cents; that after the execution of these bonds, Wood instituted an action in the District Court of the [523]Sixth District, and in January, 1858, judgment was had against the plaintiff and Schwartz & Bosler for two thousand four hundred and fifty dollars, and forty-two dollars costs. On this judgment, execution was issued and returned “ unsatisfied,” for want of property. The bill avers that he has requested and demanded of Fratt and Morgan, and Stanford, to comply xvith the terms and conditions of their undertaking, and pay the judgment to Wood, but they hax’e refused; that he. the plaintiff, is xvholly insolvent, and cannot pay off the judgment; that, therefore, he has no remedy at law on the bond, thus exposing himself and his sureties, on his official bond, liable to be harrassed. The prayer is that these parties be decreed to pay this judgment.

The undertaking of Stanford is different in form from that of Schwartz & Bosler. The instrument, after reciting the premises, says: “ I agree to save harmless the said White, and to pay any judgment or judgments which may be rendered against him by reason, or in consequence, of the levy of said attachment first aforesaid, or the sale of said goods under said execution.”