majority">

The opinion of the court was delivered by

Redfiel», J.

In this case we do not think the statute contemplates successive notices in the course of the several stages of the disposition of perishable property, under the statute. It is certain, no such notice is provided for in the statute. And if it were required, we do not see, why it should not have been provided for, as well as the first notice, which is required, in terms.

In regard to the interest of Jewett, we do not feel very well satisfied, against what particular loss, or damage, the bond was intended to indemnify the defendant. It being altogether general, we are bound to apply it to some subject matter, which will render it legal, rather than the contrary, ut res magis valeat quani pereat. Its terms are broad enough to extend to a claim of some third person to the property, or it might have been supposed by the parties, that if the original plaintiffs failed in this suit, the officer would be liable to restore the property, or pay its value, and the bond was taken to indemnify against one of these contingencies; and if so, it has no application to the present suit.

If it were taken to indemnify the defendant against his own neglects, it would be' clearly void, and in that view of the case the witness would clearly not be liable to the defendant, if the suit went *546'against him on that ground; and if he had any interest, it would be to have the suit go against the defendant upon that ground. And we do not see, why a sheriff should be allowed to claim a general indemnity against loss, as extending to the extra expense of a mere groundless prosecution. So not being able to see, how this bond can be treated as an indemnification against loss in this particular suit, brought by the debtor, we cannot say, that he was interested. Not being able to see clearly, that any suit upon the bond could grow out of this suit, against the witness, whatever way it was determined, which leaves it at most doubtful how far he had any interest in the suit, we do not see upon what ground he could be rejected.

Judgment affirmed.

Citation profile

How this case has been treated — in progress