#### J. A. POOL, ADM’R., TO THE USE OF WILLIAM E. MANN, vs. T. HUNTER et al.

A sheriff who has failed to assign a bail-bond, cannot recover against the ob-ligors to the same, until he has paid the money to the plaintiff in the judgment, or at least, until there is a judgment against him for it.

ActioN of debt, tried before his Honor Judge Saundeks, at the Pall Term, 1853, of Pasquotank Superior Court.

Sometime in the year 1851, ¥m. E. Mann sued out a writ against one Hendrickson, returnable to the Pall Term, 1851, of Pasquotank Superior Court, and placed it in the hands ©f the plaintiff’s intestate, who was then the sheriff of that County. The writ was executed, and the sheriff took from Hen-drickson and the defendants in this case, the bond sued on, as a bail-bond for the appearance of the principal, according to the exigency of the said writ, and returned it with the writ; but the sheriff died before the said bond was assigned to the plaintiff. At Spring Term, 1852, of the Court, Mann obtained a judgment against Hendrickson, which is still unsatisfied. There has been no payment of this judgment by the sheriff, or his adm’r., and no proceeding against his personal representative by Mann, to recover the amount. Hen-drickson had left the State, and was insolvent when the suit was brought.

The defendants contended that there could be no recovery upon this bond, by the adm’r. of the sheriff, until he first paid the amount of the judgment to Mann, and his Honor, being of that opinion, so instructed the jury. Plaintiff excepted.

Verdict for defendants. Judgment and appeal.

*145 Pool, Jordan and Smith, for plaintiff.

Heath- and Hines, for defendants.

Pearson, J.

The general rule is, that an action cannot be sustained on a bond taken for the purpose of indemnity, until the party has sustained loss by paying money in consequence of the default of the person against whose acts the indemnity is taken; for, until then, the action may be met by the plea of non dmxnifioatus. There are some exceptions to this rule. An absolute and certain liability to pay, will, in many cases, amount to a breach, and fix the measure of damages ; for, in such a case, it is against reason, and against the intention of the parties, that the one shall be obliged actually to pay the money before he call upon the other to save him harmless, and the purpose is not answered if the one is first compelled to make payment. For instance, if an officer takes a bond for the forthcoming of property which has been levied on under an execution, the statute gives the officer a summary remedy by motion, before he has paid the money, because his liability is absolute and certain, and an officer might well hesitate before taking a forthcoming bond, if he was obliged to pay the money in the first instance. This remedy, we suppose, is cumulative, and the officer might have maintained an action at common law for a breach of the bond in failing to deliver the property, as the damages are fixed by the amount of the execution. So, we suppose, if a sheriff appoint a deputy, and take a bond, with sureties, for the faithful discharge of his duty, by the deputy, and there is a breach of duty, whereby the superior is subjected to an absolute and certain liability, he may sue on the bond before he has actually paid the money ; for, such was the intention of the parties, and the purpose for which the bond was given.

The question is, whether the liability of the plaintiff was absolute and certain. By failing- to assign the bail-bond he became liable as special bail, according* to the provisions of the statute; but the plaintiff in the judgment is not obliged to resort to his remedy against the sheriff, as bail. He may is*146sue &fi. fa. against the goods of the defendant; or, if the defendant is insolvent, (as is stated in this case,) and the plaintiff in the judgment elect to proceed against the sheriff, he must issue a soi. fa., and the plaintiff can discharge himself from all except the costs of the soi. fa., by bringing in the body of the defendant at any time before final judgment, or he may be discharged by the death of the defendant. So, his liability is not absolute and certain until he pays the judgment, or, at least, till a judgment is taken against him. Barker v. Munroe, 4 Dev. 412.

Ve find no authority in point upon our statute; but it seems settled in England, upon the statute of Anne, in respect to the assignment of the bail-bond to the writ, or “ bail below,” taken by the sheriff, which he is authorised to assign to the plaintiff in the action, if the defendant fails to appear, that if the sheriff does not assign the bond he cannot sue upon it until he has actually paid the debt and costs. Watson on Sheriffs, 81; 2 Saunders’ Rep., Williams’ Note, 61, a. There is no error.

Pee CueiaM. Judgment affirmed.