delivered the opinion of the Court:
This was an action of debt, in which the court sustained a demurrer to the first count of the declaration, and overruled a demurrer to the third plea. These rulings of the court are assigned for error.
The errors are well assigned. The first count merely declares upon a bond single for the payment of money, and contains nothing from which it could be inferred a condition was annexed to the bond. Neither does the count show the bond was taken by the plaintiff in an official capacity, and hence does not fall within the case of Patrick v. Rucker, 19 Ill. 439. Neither does the other count in the declaration declare upon an official bond running to the plaintiff and his successors in office, and hence there was no misjoinder of counts. The demurrer to the first count should have been overruled.
The second count sets out, as a condition of the bond, that the plaintiff, as constable, had levied an execution upon certain personal property, and had delivered it to the defendant, Stevens, who was not the defendant in the execution, and that upon his return of the property by a certain day the bond was to be void. The third plea sets up a claim made upon the plaintiff by one Martha Hitchcock, for the delivery of the property, a trial of the right of property, and a verdict and judgment for the claimant.
This plea does not present a good defense to the second count. It does not even aver that the defendant surrendered the property to the claimant under the verdict and judgment; but even if it had gone to that extent, it still would have been insufficient. The defendant held the property merely as-bailee of the plaintiff, to be returned to him on a particular day, and the mere fact that, in a trial between the plaintiff and a third person, the property had been proved to belong to such third person, did not authorize the defendant to surrender the property to such claimant without the authority of the plaintiff. The object of a trial of the right of property, as clearly shown by the language of the statute, and as held by this court in Rowe v. Bowen, 28 Ill. 120, is merely to furnish an indemnity to the officer in case he disposes of the property in conformity with the verdict. But where the verdict is for the claimant,- although the prudent and only safe course for the officer is to surrender the property, yet the statute does not require him to do so. He may still retain and sell the property at his peril, if he choose to do so, and it is not for his bailee to determine this question for him. The defendant was in no peril. He could have relieved himself of all liability by delivering the property back to the plaintiff, leaving to him to determine what course to pursue under the finding of the jury.
The judgment is reversed and the cause remanded.
Judgment reversed.