12 How. Pr. 441 (N.Y. Sup. Ct. 1856)

A bond taken by a sheriff is not void as taken colore officii (under color of office) simply because it isn’t explicitly authorized by statute; it’s only void if unlawful under statute or common law and provides indemnity for breach of duty or necessarily injures a party.

Summary

This case addresses the validity of a replevin bond executed by a surety after the sheriff was discharged from liability. The court held the bond was valid and enforceable. The key issues revolved around whether the bond was taken unlawfully by the sheriff (colore officii), whether it was supported by consideration, and the effect of a court order requiring the plaintiffs in the replevin suit to renew their sureties. The court found the bond was not taken under color of office, was supported by adequate consideration (the postponement of the trial), and the surety was bound by the bond.

Facts

Nash and Gardner initiated a replevin suit where Decker was the defendant. A replevin bond was initially provided. Decker did not except to the sureties on the bond within the required timeframe, which discharged the sheriff from liability regarding the sureties’ sufficiency. The Circuit Court ordered Nash and Gardner to renew the sureties on their bond or have the existing sureties justify as a condition for postponing the trial. Judson executed the bond as a surety after this order.

Procedural History

The case originated in the Circuit Court. Following a judgment, the case reached the Supreme Court of New York, which is the court issuing this opinion. The Supreme Court affirmed the lower court’s judgment.

Issue(s)

1. Whether the replevin bond taken by the sheriff was void because it was taken colore officii in a case not provided by law.
2. Whether the Circuit Court had the authority to require the plaintiffs to renew their sureties as a condition for postponing the trial.
3. Whether Judson, as a surety, was bound by the bond, considering he executed it after the sheriff was discharged from liability.

Holding

1. No, because the bond was not unlawful under any statute or common law, nor did it provide indemnity for a breach of duty by the officer or necessarily cause injury to either party.
2. Yes, because courts have the equitable power to require a party to provide security for the protection of their adversary’s rights as a condition for granting a favor to which the party is not entitled as a matter of right.
3. Yes, because Judson executed the bond voluntarily in compliance with the court order, and the defendant (Decker) accepted it as a compliance, Judson is estopped from questioning its validity.

Court’s Reasoning

The court reasoned that a bond is only considered taken colore officii unlawfully if it’s unauthorized and provides indemnity for the officer’s breach of duty, or necessarily injures a party. Here, the bond did not fall under this definition. The sheriff was acting as a trustee for the defendant’s benefit, and the bond secured the defendant’s interest in the replevied property.

The court relied on established practice allowing courts to impose conditions on parties when granting favors, like postponing a trial. Citing Ames v. Webber, the court emphasized that a party accepting a favor under imposed conditions is bound by those conditions. By accepting the postponement and procuring Judson’s surety, Nash and Gardner waived any objection to the court’s authority to impose the conditions.

Regarding Judson’s liability, the court emphasized that his voluntary execution of the bond, coupled with Decker’s acceptance of it, created an estoppel. Judson couldn’t later claim the bond was invalid. The court also noted that consideration existed in the form of Decker’s consent to postpone the trial in exchange for Judson’s surety. Moreover, the court cited authority that a bond is valid even if the surety’s name is not mentioned in the body of the bond, as Judson’s intent to be bound was clear from his act of signing.

The court further reasoned that even if the addition of Judson discharged the original sureties, it was not a defense against Decker. By accepting the new surety, Decker waived any issues relating to the original sureties.