It is quite clear, I think, upon the
evidence, that the defendant’s deputy, Gould, upon the execution against the body of McArthur, duly arrested said McArthur and held him in his custody, or under his control, and negligently permitted him to escape. The return of the defendant upon such execution that the said McArthur could not be found in his county, was therefore clearly a false return, (Hinman v. Borden, 10 Wend. 367.) This return fixed the bail, and could not be questioned in an action against them upon their undertaking. It could only be questioned in an action directly against the sherriff, for a false return. (Bradley v. Bishop, 7 Wend. 352. Boomer v. Laine, 10 id. 525.) Such is this action, and I do not see why the plaintiff was not entitled to recover, and why the direction given by the circuit judge to the jury to find a verdict for the plaintiff was not entirely right and proper. Upon the whole evidence, and even upon the testimony of the deputy Gould, the jury • could not have found that the return was not false, and it was therefore useless to submit that question to them.
But it is urged upon us that the plaintiff can not maintain an action against the sheriff for the false return, even conceding it to be false, on the ground that the sheriff owed no duty to the bail. The case of Harrington v. Ward, *429(9 Mass. R. 251,) is cited in support of this view. In that case an action was brought against the sheriff for the neglect of one of his deputies in the service of an execution against property. The plaintiff in the action was a stranger to the suit in which the execution was issued,' and the court properly-held that “no action lay against the sheriff either for his own default or that of his deputy, but at the suit of one to whom the sheriff is bound by the duty of his office.” But this doctrine can not apply as to bail. They are connected with the action, and are privies to it in a certain sense. They are responsible for the payment of the debt if the defendant does not pay it or render himself in execution, and the remedy against them depends upon the sheriff’s return upon an execution against the body of the principal. The bail therefore have the highest interest in the proper discharge of his duty by the sheriff, and the sheriff must owe them a duty in this connection. A false return by him which charges the bail affects them, rather than the plaintiff in the execution. In an action against the bail we have seen that the sheriff’s return" of a “non est inventus” is conclusive. It would be highly unjust and unreasonable if, under such circumstances, the bail could have no redress against the sheriff for a false return. In the case of Bradley v. Bishop, (7 Wend. supra,) which was an action against bail, in which they attempted to show that the return was false and that the sheriff might have arrested the principal, the court overruled the defense ; Chief Justice Savage saying,-in the opinion, that the party had a remedy against the sheriff, in a proper action.
The case of Kidde v. Partin, (7 Greenl. 80,) is quite to the point. The action was by the bail, against the sheriff, for a false return upon a ca. sa,, whereby the plaintiff was charged with the debt and obliged to pay the same—a case precisely like the present. The plaintiff had a verdict at the circuit, which was affirmed by the court in banc; and I can ■hardly conceive how there can be any doubt that a recovery was proper in such a case. The contract of the bail is that *430the defendant shall he amenable to process against his body. He is amenable for the discharge of his bail if once arrested or within the power of the sheriff, upon final process against his body. The obligation of the bail is then fulfilled, aud he is completely exonerated and discharged from further liability or duty in respect to his principal. The bail in this case undoubtedly had the right, under section 191 of the Oode, within twenty days after suit was commenced against them, to have surrendered the principal to the sheriff in exoneration of themselves as such bail. But if the defendant had been duly charged in execution before that time, and been permitted to escape by the sheriff, the bail was clearly discharged, and I can not see that they were bound to take any steps to look up the principal. But it does not appear that it was possible for them to surrender the principal, before they were absolutely fixed for the debt.
I think the case was therefore rightly disposed of at the circuit, and a new trial should be denied.
Johnson, J.If the sheriff or-his deputy had arrested Bobert McArthur, the defendant in the execution, as the plaintiff alleges in his complaint, such arrest would clearly have exonerated the plaintiff as his bail; for the condition of her undertaking was that Bobert should be amenable to the process of the court. In that view of the case the defendant’s false return could in no wise render her liable, or prejudice her rights in any respect. She had the right to show, in the action against her uj>on the undertaking, that she had, in fact, been exonerated by the arrest. But the defendant took issue upon the allegation that he had in fact arrested Bobert, and gave evidence tending to show that he did not in fact arrest him, though he was in a situation to have done it without difficulty. As the defendant denies and controverts the fact of the arrest, and as it appears that the plaintiff did not succeed upon that issue, in her defense to the action of Lent against her upon the undertaking, it can *431not be assumed that the arrest was made. But it does appear beyond all dispute or contradiction that it might and should have been made, • The statute (2 R. S. 382, § 32,) makes it the duty of the- sheriff, upon such an execution coming to his hands, to use all reasonable endeavors to execute the same, notwithstanding any directions he may receive ftom the plaintiff or his attorney. The statute very plainly, by the clearest implication, imposes this duty upon the sheriff for the benefit of the bail. If it is a duty which the sheriff owes the bail, in the exercise of his official functions, there is such a legal privity between them as will enable the bail to maintain an action for a neglect, as willful omission, to perform- such duty, to the injury of the bail. In Bradley v. Bishop, (7 Wend. 352,) the court expressed the opinion that the bail might have a remedy against the sheriff, in such a case. It was held, however, in. that case, that the bail could not set up the omission, of the sheriff to perform his duty, in an action by the plaintiff in the judgment,- without showing fraud or collusion on the part of the plaintiff. (See also Bishop v. Earl, 17 Wend. 316.) I am of the opinion, therefore, that, as the case stood, the verdict was properly ordered, .and a new trial should be denied.
[Monroe General TgRir, September 3, 1866.Welles J. concurred.
¡New trial denied.
Welles, E. Eartoin Smith and Johnson, Justices.}