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The opinion of the court was delivered by

Royce, Gh. J.

The case is here for revision in reference only to the second and sixth pleas in the court below, and the decision there made as to the legal operation of the facts proved. Both pleas profess to answer the whole declaration, and both rely on the ten- ' der.

No tender can be a good defence, in a case of this kind, to the .claim for intervening damages. It can only apply to the additional costs. And if a plea of tender be interposed as a defence to the entire action, it must expressly deny the existence of any interven*103ing damages. An express or implied admission, that such damages have accrued and remain unsatisfied, will necessarily vitiate the plea. The reason is, that the damages being unliquidated, and altogether uncertain, the claim is not liable, either at common law or by statute, to be met by the defence of tender. Green v. Shurtliff et al., 19 Vt. 592. And hence the sixth plea would doubtless have been demurrable.

In this case the county court found that intervening damages had accrued, but decided that a right of action, perfected against the sheriff for the property attached, constituted a bar to their recovery in the present suit. And we are disposed to concede, that, if a bar were thus created, either temporary or absolute, it might be treated, for the purposes of that trial, as being equivalent to satisfaction in regard to the damages, and the pleas might be allowed to prevail.

There could be no temporary bar in the case, unless the plaintiff was legally bound to prosecute his action against the sheriff, before resorting to this defendant upon his recognizance. But such an obligation has never been supposed to rest upon the creditor. It has not even been considered necessary, that execution should be issued upon the final judgment, as a pre-requisite to the right of action on such a recognizance. Page v. Johnson, 1 D. Chip. 338.

Neither could the right of action against the sheriff, as a mere remedy for damages sustained, operate as an absolute bar, or„as a satisfaction, in discharge of this defendant. For it is not in accordance with established principles of common law, that an unsatisfied remedy against one person should work an extinguishment, or satisfaction, of a distinct remedy against another person, without some contract to that effect, or without something tantamount to a legal merger of one remedy in the other. Another difficulty is also encountered in treating the remedy against the sheriff as a bar, or a satisfaction. If in either way it discharged the defendant in reference to the intervening damages, it would seem that it equally discharged him in regard to the additional costs. For his obligation to pay the one was no more explicit, or peremptory, than to pay the other, and it was admitted that the property attached was amply sufficient to have paid both. And to hold that in such a case the bail *104is absolved from all liability would be going farther than the defendant or any one else has ever claimed.

It was therefore only as evidence that no intervening damages had accrued, and not as a bar in the correct sense of that term, that the proof of the remedy against the sheriff tended to support the de-fence. And, notwithstanding the repugnancy, which, in this view, will appear between the finding of the issues and the judgment rendered, if it can be maintained, that with that remedy the plaintiff was in as good a condition to collect his debt as when the appeal was taken, it will result, that he sustained no intervening damages, and the judgment should be affirmed. But in order to establish that proposition, nothing can be taken into account for the delay, trouble, and expense beyond taxable costs, which would probably attend the prosecution of that remedy, and it must be assumed, that the remedy, if duly pursued, would have been as certain to produce a satisfaction of the debt, as would have been the right of taking immediate execution upon the judgment of the justice. We think the proposition must evidently fail of support. The case finds, that at the time of the appeal, and for some six months afterwards, Willis, the debtor, had attachable personal property, other than that attached in the suit, sufficient to have satisfied the judgment against him; and that before the recovery of the final judgment he had become poor and wholly destitute of such property. This shows, that, but for the appeal, the plaintiff would doubtless have realized his debt within the life of an execution. It also indicates what the result proved, — that as the attached property had been eloigned, nothing could finally be collected upon execution against Willis. Can it, then, be claimed, that, when the plaintiff was left with nothing but a cause of action against the sheriff, his facilities of collection had not been impaired? He had been deprived of the right to enforce a speedy payment of his debt, without incurring additional expense, and thrown upon a remedy which could only be enforced by farther litigation. But even that remedy was not sure to produce a satisfaction. The sheriff might prove to be irresponsible; and in case of his death before the recovery of judgment against him, (an event which has in fact occurred,) the law had provided no means for reaching his bail. Slade’s St. 70, 103. Fuller v. Holmes, 1 Aik. 111. Rev. St. 166.

*105The facts, then, made a clear case of intervening damages against the defendant, to the amount of the debt, unless he was entitled to insist on the remedy against the sheriff in mitigation. It is contended, that he was not, but that, as the remedies were distinct and independent, the plaintiff had a right to avail himself of the full benefit of each, until he obtained satisfaction. It is true, that such remedies are independent of each other, and in their nature totally dissimilar. One arises upon contract, (substantially a contract of indemnity,) and the other from official misconduct, or neglect. The extent of liability is often different, and there is no privity or right of contribution between them. But for these very reasons the creditor ought not to be indulged in a capricious and inequitable choice between parties thus collaterally liable, regardless of the order in which their liabilities were assumed. Here the attachment was the prior security, and may have had its influence with the defendant, when he consented to become bail for the appeal. It is stated, indeed, that he received from the defendant a certain note by way of indemnity; but whether that security was in fact available, the case does not distinctly find. And if we take the case to have been .one where a loss was to fall upon.the defendant, or the sheriff, it would seem but reasonable and just, as between them, that the sheriff, who incurred the .first liability by attaching the property, and was first in fault by permitting it to be eloigned, should have borne the loss. Of all this we must suppose the plaintiff to have been aware. And hence we conclude, that the remedy against the sheriff might properly have been considered in mitigation of damages, to the extent of its probable value to the plaintiff, had he pursued it with reasonable diligence. That value could only be determined by estimation, in view of those circumstances and contingencies which ought to affect it.

Judgment of county court reversed, and cause remanded for another trial.

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