The opinion of the Court was delivered by
Kennedy, J.The judgment upon which the writ of scire facias quare execulio non was issued here, has been treated and considered by the counsel for the defendant as conditional, and like to a bond given in a specific sum of money conditioned for saving the obligee harmless and keeping him indemnified from loss or damage. The judgment however, as it appears on the record, is absolute and unconditional. But the instrument given by the plaintiff to the defendant, bearing even date with the judgment and referring to if, may be considered in the nature of a defeasance to it; though still, taking it altogether and as explanatory of the object and design of the judgment, it is obvious that it was intended not merely to save the plaintiff “harmless from all loss or damage by reason of the replevin bond” therein mentioned, but likewise “to secure him from any liability to loss or damage” by reason of the plaintiff’s having, as sheriff, executed the writ of replevin, wherein George Williams, Jun., the son of the defendant here, as it is alleged, was the plaintiff against John Smith and Alexander -M’Clintock, named therein as defendants. By the eleventh section of the act of 1772, authorising the sale of goods dis-trained for rent., &c., the sheriff is required in a replevin of distress for rent, before any deliverance be made of the distress, to take in his own name, from the plaintiff and one responsible person, as surety, a bond in double the value of the goods distrained, conditioned for prosecuting the suit with effect and without delay, and for duly returning the goods and chattels distrained, in case a return shall be *431awarded. He is also required, at the request of the avowant or person making cognizance, to assign this bond to him; which may be sued by the latter,in case it be forfeited, and a recovery had thereon in his own name. But, notwithstanding the bond in such case is made assignable to the defendant in the replevin, still the sheriff remains responsible to him for the sufficiency or ability of the obligees in the bond, either to return the distress if it should be awarded, or to pay the value thereof to the defendant in the replevin. See Murdock v. Will, 1 Dall. 341; Oxley v. Coperthwaite, 1 Dall. 349; Pearce v. Humphreys, 14 Serg. & Rawle 23; Commonwealth v. Rees, 3 Wharton's Rep. 124. And if it should happen, as is said by the counsel for the defendant in error to have been the case here, that the sheriff executed the replevin and made deliverance of the distress without taking any bond at all, then upon stronger ground and with more reason still is the sheriff liable to the defendant in the replevin, for a return of the goods distrained or the value thereof. Such then being the responsibility of the sheriff, it cannot be doubted that in such case he would be liable to be sued and might be compelled to pay the value of the goods as found by the jury in the replevin, upon a return of elongatur being made to the writ de retorno habendo, after having been sued out and so returned, as was done here. But whether the plaintiff here, as sheriff, took such bond or not, as is directed by the act, still he was not restrained by it or any other law from taking a security that would not only save him harmless from all loss or damage which might accrue from his having executed the writ of replevin, but also to secure him from becoming liable at all to loss or damage by reason thereof; which would seem to have been what was intended here, as may be plainly collected from the occasion of taking the judgment, as mentioned in the defeasance, and from the terms of the latter. Now though the plea of non damnijicatus may be the proper plea when the condition is merely to indemnify and sane harmless, yet it is not so when the condition is to discharge or acquit the plaintiff from liability, as from a bond or other thing done or given by him creating a liability. In this latter case, the defendant in pleading must set forth affirmatively the special manner of performance, and show that the plaintiff has been acquitted of his liability, and in what way it has been effected. King v. Hobbs, Cro. Eliz. 914 ; Brett v. Andrews, 1 Leon. 71, 72; Mather v. Mills, 3 Mod. 252 ; Harris v. Pett, Carth. 375 ; S. C., 5 Mod. 243. It would seem that if any replevin bond ever was taken here, none is now to be found, and that the judgment given by the defendant to the sheriff has been resorted to by the defendants in'the replevin, instead of going against the sheriff himself, in order to recover the value of the goods distrained and,the costs of the replevin accruing after the appeal thereon from the award of the arbitrators. To this we do not see that any good objection can be made, either in law or equity. The sheriff by the result of the proceeding in the replevin suit became clearly liable ¡to the defendants therein for the return of the goods *432distrained or else to the payment of ihe value of them, which was fixed by the verdict of the jury and the judgment of the court in the action of replevin at 380 dollars and 30 cents. The goods however, as it appears by the return made to the court de retorno habendo, have been eloigned, and therefore are not to be had ; nor can the plaintiff in the replevin be found, as is shown by the return to the writ of capias ad satisfaciendum issued against him upon the judgment therein ; so that the only remedy remaining to the defendants in the replevin would seem to be either an action against the sheriff or an execution upon the judgment here in question. The sheriff having become liable to them, as it appears, by reason of his having executed the writ of replevin without taking a bond from the plaintiff therein with at least one sufficient surety, is entitled to proceed upon this judgment against the defendant in order to relieve himself from such liability ; or he may permit the defendants in the replevin to assume a control over it, and to proceed to recover by execution thereon the value of the goods distrained as fixed by the jury in the replevin, that is, 380 dollars and 30 cents, with interest thereon from the date of the verdict, together with the costs of this action and those of the replevin which accrued after the time of the appeal taken from the award thereon of the arbitrators. And if the sheriff were to refuse such permission, I am inclined to believe that the defendants in the replevin might claim it as matter of right. It appears to me that they being creditors as it were, and the sheriff having become by his liability surety for the payment of what may be considered the debt owing to them by the plaintiff in the replevin as the principal debtor, have a right in equity to claim the benefit of the judgment or that of any other security taken by the sheriff to acquit and discharge him from his liability to pay the debt.
Under every view that can be fairly taken of this case, we are satisfied that the plea of the defendant is insufficient; that the judgment of the court below in his favour must therefore be reversed, and judgment entered for the plaintiff for 450 dollars debt and 298 dollars damages, besides the costs in the replevin which accrued subsequently to the appeal therein from the award of the arbitrators, with the costs of this action ; and the record remanded to the court below that the judgment here may be carried into effect.
Judgment reversed, and judgment for the plaintiff.