The first specification of error is: “(1) The court erred in permitting the filing of the amended complaint over the objection of the defendants, because the parties in ■whose names the suit was originally brought had no cause of action upon the bond sued on.” This is not tenable, provided the marshal himself had a cause of action.
As to the.second specification of error, that “the court erred in taking jurisdiction of the amended complaint, because *184the same was by a new party plaintiff and for a new cause of action, and the original parties plaintiff had no cause of action upon the bond sued on, and in overruling appellant's plea to the jurisdiction,” in like manner we do not deem this tenable provided the marshal himself had a cause of action. The custody of these goods were at all times in the hands of the United States marshal, through his custodians, and if appellant is liable to the United States marshal for the costs on his indemnity he is likewise liable to the marshal’s custodians. The custodians might pursue their action separately or in connection with the marshal, and there was no error on the part of the court in permitting the amendment making the marshal a party under sections 4933 and 4936 of Mansfield’s Digest (Ind. Ter. St. 1899, §§ 3138, 3141).
In the third specification (of error appellant insists that the court erred in overruling his demurrer to the amended complaint on three grounds: “(a) Because the bond sued on was not a bond as is provided for by any law in force in the Indian Territory at the time of its execution, (b) Because the bond sued on was intended solely as an indemnity to the marshal, and not for any other purpose, (e) Because the complaint does not show that the United States marshal for the Indian Territory has ever been damnified.” We will consider these three objections together. So far as our investigation goes, or our attention is directed, the only provision for an indemnifying bond provided by Mansfield’s Digest is found under the head of “Executions,” sections 3021-3023 (Ind. Ter. St. 1899, §§ 2136-2138). There is no provision for an indemnifying bond under the head of attachments in any way. The statute provides for an attachment bond, which is ample to protect the defendant in the action against any damage he may suffer, or to protect claimants to the property attached. If the affidavit be given, it becomes the duty of the sheriff or marshal to levy the same without-delay, and the statute further provides for the disposition of such attached property, *185and the sheriff or marshal would have no right to demand any indemnity whatever beyond the attachment bond for any person. But it is contended by appellee that the sheriff or marshal would have a right to demand his fees in advance before executing such writ of attachment, and that the right to demand fees in advance carries with it the right to demand security for such fees and costs. An examination of the statute with reference to fees, namely, Mansf. Dig. § 3250 (Ind. Ter. St. 1899; § 2234), makes good this contention. And it is our opinion that the sheriff or marshal would have the right to refuse to levy any writ or process of any kind or character until his fees were tendered him or secured to him satisfactorily in some way. But in taking the indemnifying bond in question, did the marshal intend to demand security for his fees and costs in levying this attachment? 'And was the contract of indemnity a contract on the part of the plaintiff and Severs to secure to the marshal, his deputies and assistants, payment of their fees and costs incurred in making the levy and caring for the attached property? That part of the indemnity bond relating to the conditions of the bond, reads as follows: “Now, the said plaintiff, K. R. Cutler, shall and do from time to time and at all times hereafter, defend, keep harmless and indemnified, the said Thomas B. Needles, Marshal, his heirs, executors and administrators, and also his deputies, and also other persons acting with, under or by instruction of him, the said Marshal, or his deputies, and all and every one of them, of and from all actions, suits, costs, charges, and damages and expense whatsoever (including attorney's fees), which shall or may at any time hereafter come to- them or either of them, for or by reason of the execution of said writ as aforesaid and the retaining possession of and selling the said property under said writ or other process hereafter to issue, or by reason of assisting in such execution, or selling.” Now, certainly, this cannot be reasonably contended to be a security to the marshal for his costs in this action. It is intended to be an indemnifying bond *186against suits and claims of third parties against the marshal or any of his deputies or assistants." It so reads, and it can be taken to mean nothing else; and certainly the marshal could not expect under such bond to hold the party giving it for the costs of the action.
We are of opinion that the contentions “b” and “c” are not well taken, and that the contention in specification of error No. 4 is not well taken. Certainly, in our view, specification No. 5 is well taken, and the action of the court in overruling appellant's motion for a new trial and entering judgment for appellees upon this bond was erroneous, and said judgment is hereby ordered reversed and set aside, and this cause remanded to the court below, with directions to said court to sustain appellant's demurrer .to the complaint.
Clayton and TowNSEND, JJ., concur. Raymond,' C. J., dissents.