The opinion of the court was delivered by
Royce, Ch. J.The statutes authorizing an action to be brought against the sheriff, in a case like the present, have always been substantially the same; though the present statute is somewhat differently *401worded from that of 1797. The bond is made assignable to the creditor after a breach of the condition. And if the sheriff, after such breach, assign the bond upon request, he is not liable to an action, until the sufficiency of the bond has been tested by a suit upon it in the creditor’s name. But if judgment cannot be obtained upon the bond, by reason of any neglect or default of the jail-keeper in taking it, or if the debt cannotbe collected upon it, on account of the poverty of the signers, an action like the present is impliedly given against the sheriff. And though the form of the action is case, as for an escape of the debtor, yet the rule of damages has always been the amount of the debt. We have uniformly held, that the sheriff guarantees the actual sufficiency of a jail bond, when the debtor is in execution. Udall v. Rice, 1 Tyl. 213. Scott v. Weeks, Franklin County, January Term, 1828, not reported. The present parties would seem to have recognized this rule, since they have agreed in the stated case, that, if the plaintiffs are entitled to judgment, they are to recover a sum which is equal to their original demand, with all cost and interest thereon. We have, therefore, only to consider the grounds taken against the right of the plaintiffs to recover at all in this case.
It is insisted, that the failure to collect the judgment recovered on the bond has not resulted from the poverty of the signers. This is urged only in relation to Webster, the surety, against whom no jugment on the bond has been obtained. And it is stated in the agreed case, that he was amply responsible, when the bond was taken, and so continued for about two years after Pingry had committed an escape. As to his circumstances, since he removed from the state, the case is silent; but it should doubtless be taken, that he has had no property here, from which the demand could have been satisfied. We think the statute does not require the creditor to carry such a bond into any foreign state, or government, to be enforced; that, if no sufficient means of enforcing collection are to be had within our own jurisdiction, the poverty of the signers is sufficiently established.
It is also claimed, that, if the debt be lost, the loss should be attributed to negligence and delay on the part of the plaintiffs. We are not disposed to deny, that a creditor may lose his remedy against the sheriff, in a case of this kind, by an unreasonable delay to prose*402cute the bond after its assignment to him; and possibly the like result might follow from similar delay in calling for an assignment of the bond, after becoming fully apprised of the escape. In the latter case, however, if it should appear, that the sheriff also had notice of the escape, it would seem, that he could not urge the delay in his own defence. For until such a bond is assigned, it belongs to the sheriff, and he may prosecute it for his own protection, or even compromise and discharge it, if not done to defraud the creditor. Weeks v. Stevens, 7 Vt. 72.
Here the case agreed upon does not state, when the plaintiffs, or the defendant, first had notice of the escape, or when the bond was assigned. And if, as the defendant contends, we are to regard the time of assignment alleged in the declaration as not being admitted for the purposes of this action, the question will then be, whether the case will justify any such presumptions against the plaintiffs, as ought to discharge the defendant upon either of the grounds above alluded to. And we perceive no safe or satisfactory ground for presuming, either that the plaintiffs had earlier notice of the escape than the defendant, — that they did not take an assignment of the bond within a reasonable time after notice of the escape, — or that they afterwards improperly delayed to prosecute the bond. On the whole, we conclude, that the right of the plaintiffs to recover was sufficiently made out.
Judgment of county court reversed, and judgment for the plaintiffs according to the agreed case.