Charles v. Haskins, et al. deputy. It is a mere relation by special contract, and to be construed strictly, and not enlarging the fair intent of the parties to the contract, to the detriment of the sureties. Bethure v. Dozier, 10 Geo. 235; Walsh v. Baillie, 10 Johns. 180; Bank, &c. v. Barrington, 2 Penn. 27. III. But upon the main question we maintain the position that under the laws of this State, the sureties upon a sheriff's bond are not liable for a trespass committed by him, even where the action is brought by the original claimant, in his own name. The appellant relies upon a New York case, The People v. Schuyler, 4 Com. as in point against this position. An examination of this case shows such essential differences from the one at bar, that I call the special attention of the court to the following particulars for their consideration: 1. Schuyler, in that case, was sued as sheriff, and defended as sheriff, and consequently judgment was against him as sheriff. 2. By the New York statute, the sheriff was compelled, imdemnity being given, to retain the property attached, even after verdict of a jury against his right, if so demanded by the attaching creditor; which inevitably made his act an official one, if ever a trespass can be official. It certainly seemed to make it virtute officii, in distinction from colore officii. And that was the New York case precisely. (2 R. S. 46, sections 30, 31, cited on page 195 of the report, and see statement of case, page 174.) 3. Schuyler's bond was a strict statutory bond in New York, and different in terms from the statutory bond of this State; and the condition broken in that case was different in language from the condition here alleged to be broken: (viz., in N. Y, "Well and faithfully in all things perform and execute the office of sheriff of said County of Rensaellaer," &c.) 4. Even in that case the court was divided, and two directly opposite opinions were given by different judges, the minority having with them, me judice, the weight of Charles v. Haskins, et al. reason, and the preponderance of authority in New York. To support this statement I ask the attention of this court to the opinion of PRATT, J. concurred in by RUGGLES and HURLBUT, JJ. (page 184, 195,) also to opinion of Sup. Court in same case, 5 Barb. page 166. In support of the main proposition above, and of the opinion of the minority, in the last case, I cite the unanimous opinion of the Supreme Court of New York, delivered by CowEN, J., on the same point, in ex parte Reed, 4 Hill. S. C. R. page 572, and authorities cited by him. To the same point precisely, in support of Ex parte Recd (ut sup) State v. Brown, 11 Ired. 141, that "the sureties in the official bond of a sheriff are not liable for damages for a trespass committed by the sheriff, under color of his office. Governor v. Revine, 23 Ala. 807; Brown v. Mosely, 11 Sm. & M. 354; Dean v. The Governor, 13 Ala 526; see also, Commonwealth v. Kennard, 8 Pick. 133; Allcock v. Andrews, 2 Esp. 540. BALDWIN J.-The first position assumed by appellees is, that the right of Hattenbach to recover of the sureties of Haskins, being in the nature of a tort, is not assignable. The tort, in this case, was merged in the judgment, prior to the assignment. A judgment is assignable and the assignee thereof may sue thereon in his own name. Edwards v. Montgomery, 1 Iowa 143; Weare v. The City of Davenport, ante. The next question presented for our consideration is, whether the judgment against Haskins is a bar to the right of plaintiff to recover, as against the sureties, upon the official bond. The judgment against Haskins is merely a liquidation of the damages Hattenbach sustained, and we can see no good reason why this act of the assignor of plaintiff, in s eking to make the amount of his claim out of the principal would release the sureties. The relation existing between the sheriff and his bondsman is that of principal and sureties. And, although under our statute a party aggrieved by any breaches of the bond, may sue the princi Hetherington and Winslow v. Hayden, Sheriff. pal and sureties together, yet he is not compelled so to do. Nor by his election to sue the sheriff alone is he precluded his remedy against the sureties. The next and most important question for our consideration is, whether the sureties of a sheriff are liable for a trespass committed by their principal in attempting to discharge his duty as such officer. Upon this question the authorities are somewhat in conflict. In the case of The People v. Schuyler, 4 Com. 173, this question is fully discussed and a majority of the court held that the sureties were so liable. In the case of Strunk v. Ochiltree, decided at the the present term of this court, it was held that the sureties of a constable were liable for a trespass committed by him by virtue of his office. The conditions of a sheriff's bond are the same as those of constable; each being given under and in conformity with the provisions of the same statute. We are of the opinion that the current of authorities indicates the correctness of the ruling of the court in that case, and without the further elaboration of this point so fully discussed in the case of The People v. Schuyler, supra, and the cases there cited, we hold that the sureties, in this case, are liable. It is further submitted that the bond being given to the "People of Woodbury county" is not such a bond as would make the defendants liable, there being no obligee of the contract; no such person or corporation known to the law. A mistake of this character will not vitiate the security. See section 2506 of the Code. The court below erred in sustaining the defendant's de murrer. Judgment reversed. HETHERINGTON AND WINSLOW V. HAYDEN, Sheriff. 1. ASSIGNMENT SUBJECT TO LEVY. The assignee of railroad bonds under Hetherington and Winslow v. Hayden, Sheriff. an assignment made after the levy of an execution thereon, takes the same subject to such levy. 2. RAILROAD BONDS SUBJECT TO LEVY. Held when a railroad company received a number of its own mortgage bonds from a debtor in the payment of his debt, not for the purpose of cancelling the same, but with the intention of again putting them in circulation as securities, that they were the property of the company, and as such, were sub-, ject to the levy of an execution against its property. WRIGHT, J., dissenting. Appeal from Dubuque City Court. SATURDAY, DECEMBER 22. THE facts are fully stated in the opinion of the court. J. S. Covil for the appellant. I. Railroad mortgage bonds are peculiar instruments intended to form a part of currency of the country, and are not to be regarded as ordinary bonds and promissory notes.. As such, the company by whom they were issued may own its own bonds in the same sense that bank bills may be owned by the bank which put them in circulation. GREER, J. in McCoy v. The County of Washington, 7 Am. Law. Reg. 196; Carr v. Lefever, 27 Parm. S. R. 418; Crary v. The City of Vicksburg, 31 Miss. R. 251; Wookey v. Pale, 4 B. & A. 367; Gorzier v. Melville, 3 Barn. & Cress. 45; 1 Par. Cont. 240; Williams on Per. Prop. 311, (marginal;) Pierce R. R. Law 129; McNellage v. Holloway, 1 Barn. & Ald. 222; Morris Canal Bank v. Fisher, 1 Stockton 607, approved in Mechanics Bank v. New York & New Hampshire Railroad Company, 3 Ker. 625; also in S. C. 4 Duer 582; Bank of the Old Dominion v. Dubuque & Pacific Railroad Company, 8 Iowa 280. II. If it is said that the bonds come back into the hands of the company, and by that act becomes of no value, we answer they remain of no value and can not be again issued. The plaintiff, under that theory, has no title. Bullard v. Hetherington and Winslow v. Hayden, Sheriff. Greenbush, 24 Maine 336; Beebe v. Real Estate, 4 Pike 550; City Bank of Columbus v. Brace, 17 N. Y. R. 511. III. The company could not, after the levy upon theso bonds, transfer the title to them free from the lien of the levy. Penrose v. Erie Canal Company, 7 Am. Law Reg 126. Samuels, Allison & Crane for the appellees. I. The Railroad company had no interest in the bonds. upon which an attachment could be levied. Gwynne on Sher. 224; 1 Cow. 240; 2 Kent Com. 351. II. The moment Langworthy set apart or designated the bonds in dispute as the bonds of the company an action of replevin was maintainable by the company to recover pos-session of them. Southern Plank Road Company v. Hixon, 5 Ired. 165; Sawyer v. Baldwin, Ib. 492; McCoy v. Cadle, 4 Iowa 557. III. The right to maintain an action of replevin was duly transferred by the company to the plaintiffs. Code of 1851, sections 947, 1676; Harlan v. Harlan, 15 Penn. S. R. 507. IV. As these bonds were not yet due, the company had the right to re-issue them, in the same manner that a bank may re-issue its bills and a corporation its stock. Ballard v. Greenbush, 24 Maine; The City Bank of Columbus v. Bruce, supra; Beebe v. The Real Estate Bank, 4 Pike 550. LOWE, C. J.'-On the 12th day of November, 1859, the defendant as sheriff of Dubuque County, levied upon three bonds, No. 233, 234, 235, to satisfy an execution in favor of one E. D. Sweet, for $941,23 against the Dubuque Western Railroad Company. Said bonds had been issued by said R. R. Company on the first of July, 1857, to one David G. Scott or bearer; were payable in 20 years, at the Metropolitan Bank in tho City of New York; drew 10 per cent interest, payable semiannually. The plaintiff claiming to be entitled to the pos |