People ex rel. Lane v. Hilton

• Decision Date: 10 September 1888
• Citation: 36 F. 172
• Parties: PEOPLE ex rel. LANE v. HILTON et al.
• Court: U.S. District Court — Eastern District of Michigan

36 F. 172

PEOPLE ex rel. LANE v. HILTON et al.

United States Circuit Court, E.D. Michigan.

September 10, 1888

M. E Dowling, for plaintiff.

Messrs O'Brien, J. Atkinson, and N. E. Thomas, for defendants.

BROWN J., (after stating the facts as above.)

There is no doubt of the general proposition that the obligation of a surety is strictissimi juris, and cannot be extended by construction. He is liable only where there is a breach of the letter of his contract. The sureties upon an official bond, as a rule, are only liable for such sums of money as their principal may lawfully receive by virtue of his office. Brandt, Sur. Sec. 451. The only question in this case is whether the money received by the sheriff was received in his official capacity as sheriff, or as the agent of the plaintiff in the replevin case. The fact that he deposited the money in the bank 'as sheriff,' and that he drew it from the bank by checks signed by him in his official capacity, does not establish the official character of the transaction, unless the act were one which he in fact was authorized to do by virtue of his office. Nor does the fact that, if defendant had recovered judgment against the plaintiff in the case, he might have used this money in payment of such judgment, tend to show that he acted in his official capacity, because the plaintiff himself or any agent of the plaintiff might have done likewise with any money in his hands belonging to the plaintiff. We are therefore constrained to examine the statute to ascertain the powers and duties of a sheriff in the execution of a writ of replevin. By How. St. Sec. 8324, before the sheriff shall deliver property replevied to the plaintiff, 'such plaintiff, or some one in his behalf, shall execute a bond to such officer and his assigns, with the addition of his name of office,' in at least double the appraised value of the property, 'conditioned that the plaintiff will prosecute the suit to effect; and, if the defendant recover judgment against him in the action, he will return the same property if return thereof be adjudged, and will pay the defendant all such sums of money as may be recovered by such defendant against him in the said action. ' And by section 8325 'if the plaintiff shall fail to cause such bond to be executed and delivered to the officer within 24 hours after the appraisal of such property, the officer shall return the same to the person from whom he...