The statute declares in what cases the official bond of a sheriff may he prosecuted. (2 R. S. 2d. ed. 390, § 1.) These are only where he has become liable for an escape, or where he has been guilty of some default or misconduct in his office. The condition-of the official bond is, that he shall well and faithfully perform and execute the office of sheriff, without fraud, deceit or oppression, &c. I think it must now be considered as settled, in this state, that the sureties of a sheriff are liable on his official bond only for acts done virtute officii, and not for those committed colore officii. They are not accountable for a trespass committed by him in taking property not directed to be taken by process. As to such an act the sheriff has no protection from his process; and it does not change the character of the wrong that he committed it colore officii. He stands in the same position as if hehqd acted without process.
The law on this subject was very fully examined by Mr. Justice Co wen, in Ex parte Reed, (4 Hill, 572.). In that case there had been a recovery in trespass, against th.e sheriff, by a person not a defendant in the execution, for goods seized by the deputy under a ji.fa.: and the judgment not having been satisfied, an application was made for leave to prosecute the. official bond of the sheriff, which was refused. The court held that the condition of the bond did not extend to a trespass, committed by the sheriff, or his deputy, in seizing the goods of a third person; that such an act was not in. the performance and execution of his office. The case of Carmack v. The Commonwealth, (5 Binn. 184,) cited on the argument before us, by the plaintiff’s counsel, is there commented on and questioned.
But it is claimed by the plaintiff’s, counsel, that there is a distinction to be taken between the case we are considering and Ex parte Reed, because on an attachment the sheriff is required by statute, (1 R. S. 2d ed. 767, § 11,) to retain the property, if indemnified, notwithstanding it may have been found by the jury to be the property of th.e claimant. No such difference, however, exists. The law is the same in regard to property seized on a fieri facias. (Curtis v. Patterson, 8 Cowen, 67.) *169And I think the provision of the revised statutes last above referred to, which is not found in the act of 1813, was inserted for the purpose of making the duty of sheriffs the same on attachments that it is on executions. (Batchellor v. Schuyler, 3 Hill, 386.) In both cases the sheriff is now bound to keep possession of the property, if indemnified, although the jury may have found the title to be in a third person. The statute has made the practice under an attachment to conform in this respect to what had long been the common law rule in regard to property levied on under an execution.
The demurrer is well taken, and the defendant must have judgment.