I do not deem it necessary to decide in this case whether the sheriff may or may not *125assign the right of action which he may have against the bail. I can see no reason why, after that right has become perfect, and he has a claim for damages on the undertaking, he may not assign that right to a third person. I think, however, other views of this case are decisive of the question raised on the demurrer.
The bail originally put in were excepted to, and did not justify. They did not therefore become responsible to the plaintiffs, and the sheriff became liable as bail in the action. (Section 201 of the Code.) From this liability he can he discharged by puttibg in other bail.
By the 203d section, the bail, in case they do not justify or other bail is not given, become liable to the sheriff, by action, for damages which he may sustain by reason of such omission. (Section 203.)
This section is intended to secure the sheriff against the consequences of a failure to justify, or to put in other bail. The liability he assumes is to be bail himself, and he has a right to recover from the original bail the damages which he sustains by reason of that liability.
It is apparent, therefore, that he has no action against the bail, until he has sustained damage from the liability as bail which the law imposes upon him. His right of action is not to recover for not putting in bail or surrendering the principal, but for damages which he may sustain by reason of such omission to justify, &e.; and until he has sustained such damage, he has no right of action against the bail. In this respect the liability of the bail is different from that under which the bail to the sheriff were liable under the old system. They were liable if they did not put in bail in the action. Under the present system, the liability is for the damages which the sheriff has sustained.
From what I have said, it is easy to define what the complaint should contain to make out a sufficient cause of action. It is not only the facts preliminary to giving the undertaking, the neglect to justify, or substitute other bail, and the recovery of judgment in the original action, with the execution and return ; but, also, that the sheriff has sustained damage in the action, and a statement of what that damage was.
This would be necessary to enable the sheriff to recover in his *126own name. It would, be just as necessary if the plaintiff as assignee could maintain an action.
In this respect the complaint demurred to is defective. There is no averment of any damage, nor is it even averred that the sheriff has in any respect been damaged, and without that there is no cause of action stated.
The demurrer in this respect is well taken, and the judgment should be affirmed.