The opinion of the court was delivered by
Williams, Ch. J.The first count in the declaration is for the neglect of the defendant’s deputy, in not taking sufficient bail on a writ, in favor of the plaintiff against one James W. Grogan. The defendant defended the action by proving that the bail, William Cain, was, at the time he was taken as bail, apparently in good credit, and safe to be taken as bail, and was in possession of personal property to a greater amount than the demand of the plaintiff, against Grogan. The county court decided that, under these circumstances, the defendant was not liable, although they found that Cain, the bail, was actually insolvent, at the time he was taken as bail. This decision, we think, was erroneous. The statute, in relation to process, page 183, § 32, makes the officer answerable to the plaintiff, for all damages occasioned by the insufficiency of the surety, qualified, however, by this provision, that he may make it appear on trial, that, at the time of taking said surety, the same was.amply sufficient. This statute can receive but one construction. The officer, when the bail proves insufficient, and he is sued therefor, can only defend himself, by proving that the surety, when taken, was amply sufficient. An apparent sufficiency will not excuse him. The decision in the case of Hazard v. Slade, D. Chipman, 199, was directly to this effect, under a statute in nearly the same words as the present. A similar decision was made in Windsor county, where one Willard was taken *183as bail, who was apparently good when taken ; and we are not aware, there have ever been any decisions to the contrary.
On the second count, the court are not prepared to decide. My opinion is, that an officer is bound to return all writs of execution, unless they are in fact satisfied or executed ; that the creditor has a right to require, that he should state, under his official oath, whether he has made diligent search, and whether he could find property of the debtor; and the presumption is, and should be, that he could execute and satisfy the writ, unless he returns an excuse therefor. The creditor is not bound to shew property in the possession of the debtor in order to charge the officer to whom he delivers an execution, unless it is to falsify a return of nulla bona. The court however are not prepared, at this time, to decide this point. As the county court rendered judgment for the defendant, and their decision as to the first count was erroneous, their judgment must be reversed.