I do not concur in the conclusions of my brother Daniels in this ease. A complete and perfect cause of action arose in favor of the *248plaintiff upon the first seizure of the stoek of goods on- the 4th of January, 1884, when the sheriff attached and took possession of the stock of goods by virtue of the attachments and execution then in his hands. The plaintiff has a right to rely on that cause of action if he chooses. Subsequently, on other and different days, other attachments and executions came to the sheriff’s hands upon which he entered attachments and levies of the same stock then in his possession. All the several creditors in whose behalf the several processes were issued after their respective levies gave several and separate bonds of indemnity to the sheriff, under which he proceeded. They all now seek to be substituted as defendants in the action against the sheriff, and to have him discharged therefrom. Under such circumstances this is neither just nor equitable. Several of the defendants are not liable for the first seizure, nor do their bonds of indemnity extend to that. If the plaintiff prefers, upon the trial of the action against the sheriff, to rely wholly on the seizure made on the 4th of January, 1884, he is entitled to do so, and for that cause the creditors who subsequently issued attachments and executions are not liable to plaintiff nor bound to indemnify the sheriff. Nor is the plaintiff under any obligation to accept as substituted defendants in his action parties who, to say the least, will have power to raise against him embarrassing and doubtful questions touching their liability for acts of the sheriff done for the exclusive benefit of others before their processes were put in his hands. The provisions of the Code for such substitution were only intended to apply to clear and plain cases of liability by indemnitors for any and all grounds of action upon which the plaintiff, at the trial, may elect to stand.
I think there are many embarrassing questions in this case that may be sprung upon the trial against the plaintiff if the-substitution be made. For instance, if the sheriff were not liable for tort in the original seizure, but made himself so by subsequent misconduct affecting the property taken by which it was lost or injured in value, prior to the coming in of the second or third batches of process, the plaintiff may be greatly embarrassed in attempting to hold the last set, or, indeed, any of the indemnitors, for that cause of action. And so if he chooses to stand on trial on proof of the seizure and removal of the goods on the fourth of January, it is *249difficult to see why a party 'who had nothing to do with that wrong would not be entitled to a nonsuit. It is not easy to see why, if all the parties sought to be substituted as defendants are brought in, it will not be necessary as against each of them to show either a joint or several wrongful act for which he is chargeable. The plaintiff may therefore be forced to establish a series of wrongs before he can make out a cause of action against all the parties, while against, the sheriff he may stand upon a single one.
To my mind the case presented on the motion is not one upon which the court, in the exercise of sound discretion, ought to uphold the order of substitution. It cannot, nor indeed should it, compel a division of the action into several actions because that is imposing the burthen of ¶ several litigations upon the plaintiff where, in both fact and law, he has a single one against a single defendant of which he cannot be deprived. I think the order should be reversed, and the motion denied.
Order affirmed, with ten dollars cost and disbursements.