dissenting. I dissent from so much of the opinion of the court in this case as holds that the amount of the judgment against the appellants Gotzian & Co. and Wyman & Mullen is limited to the amount of the penal sums of their respective bonds of indemnity to their co-defendant, Getman, the sheriff. I think that they are liable as joint trespassers with the sheriff, and for the same amount. I concede that section 155 was intended for the benefit of the sheriff, and not of the plaintiff. I also concede, what is self-evident, that it is only those who have indemnified the sheriff whom he has a right to have impleaded. But to draw from these considerations the conclusion that, when thus impleaded, their liability to the plaintiff is measured by their contract of indemnity to their co-defendant, seems to me a non sequitur.
As correctly stated in the opinion of the court, these parties, by furnishing the sheriff a bond of indemnity, adopted and ratified the acts of the sheriff and made them their own, and thus became liable to the owner of the property as original trespassers jointly with the sheriff. The plaintiff might have sued all of them jointly, or, as he did in this case, sue only one of them, and, if he failed to get satisfaction out of him, then bring another action against the others, or any of them. At common law, if one of several joint trespassers *334be sued alone, he has no right to demand that the others be joined with him. Now, it seems to me that, in view of this state of things, section 155 was enacted for the purpose of giving the sheriff protection, additional to that given by section 154, and of a much more effective nature than that suggested by my brethren. Section 154 gave him the right to demand indemnity from the plaintiff in the writ. As before suggested, the indemnitors became jointly liable with the sheriff to the owner of the property as trespassers, and might have been by such owner sued jointly with him. But if the sheriff be sued alone, section 155 says he may, in such case, demand that these other parties shall be impleaded with him. True, it is because of certain contract relations between the sheriff and his indemnitors that he is given the right to have them impleaded with him. But the reason why he is permitted to have them thus brought into the action as defendants, and the extent of their liability to the plaintiff when impleaded, seem to me to have no necessary connection with each other. Such considerations as, on whose motions were they brought in ? or, what are their contract liabilities to their co-defendant ? are wholly irrelevant. The material question is, what is the extent of the cause of action of the plaintiff against them ? In short, I think when these parties are impleaded, on motion of the sheriff, the plaintiff may recover against them precisely as if he had himself made them defendants in the first instance. In either case his cause of action against them is the same, namely, the trespass upon his property to which they have made themselves parties, and not the bond of indemnity which they have given to their co-defendant, the sheriff. This construction of the statute gives to the sheriff the additional protection which I think was designed to be given him. It neither prejudices nor complicates the rights of the plaintiff, and does no injustice to the indemnitors. The language of the statute clearly indicates that it nev.er contemplated anything but one judgment against all, for the same amount. This is manifest from the provision that the property of the co-defendants shall be exhausted before that of the sheriff is taken.
That the penal sum in the indemnity bond is not the extent of the liability of “the plaintiff in the writ, ” is evident from the fact that *335there is no necessity that he should himself join in the execution of it. This is clear from the language, of the statute which speaks of “the oblU gors in the bond” and “the plaintiff in the writ.” The object of the bond is not to make the plaintiff in the writ responsible to the sheriff, for he is liable independently of a bond if he direct the sheriff to retain the levy. The object is to furnish the sheriff additional security. Now, suppose ■the plaintiff in the writ does not, as he need not, join in the execution •of the bond to the sheriff, what is the extent of his liability in an action dike the present ? Clearly, not the penal sum of the bond, for he is not a party to it. Again, suppose in the present case the plaintiff fails to •obtain satisfaction from the sheriff of the amount of the judgment in excess of that to be rendered, according to the opinion of the court, against the appellants, can he bring another, against Gotzian & Co. and Wyman & Mullen upon their liability as trespassers ? This he could have done had the action proceeded as he commenced it, against the sheriff alone. If he cannot, then his right to do so must have been defeated by the action of the sheriff over which he had no control. If he can, then it leads to the unreasonable alternative that a person may bring a second action against parties after having already litigated the same matter against the same parties in another action.
Such are some of the complications which would arise from the views adopted by my brethren — views which, in my judgment, find no support in either the language or reason of the statute, and which certainly were not suggested upon the argument of the case by either counsel.