Cope, J. concurring.

This was a suit brought on a Sheriff’s bond against the officer and his sureties. It seems that two of his sureties, Selby and Barr, were not served with process. The respondent contends that the mere failure of the record to show service on a defendant, is not matter for reversal, since, in a Court of general jurisdiction, the regularity of its proceedings is presumed. Some authorities are cited to sustain this view. But our practice has been different. While possibly, a judgment so obtained might not be impeached collaterally, (though see Parsons v. Davis, 3 Cal. 421 ) yet on appeal a judgment by default will be reversed, when the record shows no service of notice, and no appearance by the defendant. ( 2 Cal. 88 ; 10 Id. 511; 3 Id. Sup.) See also Whitwell v. Barbier (7 Id. 64) and cases cited on the briefs.

For this error the judgment must be reversed.

We are asked to pass upon the question involved in the record, which is presented by an agreed statement of facts.

It seems that plaintiff sued out attachment against one Kalkmann, and had it levied on some goods. Other creditors issued similar process, also levied on the same goods. Afterwards the plaintiff dismissed his proceeding, and claimed that the goods levied on, or a part of them, were his own property; they having been procured by Kalkmann by false pretenses. The plaintiff sued the Sheriff in replevin. He did not take the goods out of the Sheriff’s possession, but came to an arrangement with the Sheriff, whereby the Sheriff agreed to sell the goods, and keep the proceeds to answer the judgment, if the plaintiff obtained one in his replevin suit. The Sheriff sold the goods and paid the money into Court, saying nothing about this arrangement; and the money was paid, under the order of the Court, on the claim of the other creditors. The sureties of the Sheriff had nothing to do with, and gave no sanction to this arrangement. The question is, are they bound to the plaintiff for the goods or the money received from the sale—the plaintiff having oh *69 tained judgment in the replevin suit? We think they are not. it was no part of the Sheriff’s duty to make this agreement with the plaintiff to sell the goods and to hold the proceeds for the plaintiff in a certain event. He had no legal authority, as Sheriff, to sell these goods and to hold the money on bailment for the plaintiff. If the plaintiff trusted him with the custody of the goods, and gave him authority to sell them, he became, so far, the agent of the plaintiff, and the plaintiff must look to him merely as his agent; he cannot hold the sureties bound for executory contracts of this sort, entered into without their consent. If so, there would be scarcely a limit to their responsibility; for contracts of this sort might run for years, and represent every variety of complication. If the Sheriff had retained the goods, he might have obtained a bond of indemnity from the other creditors; or if the plaintiff had given bond, he might have relieved the Sheriff from the custody of the goods. But here the Sheriff assumes, by this agency, a responsibility for himself and his sureties, greater in degree and different in kind, from that imposed by law, and it would be unjust and impolitic to encourage such dealings by holding sureties responsible for them. It would be against law so to hold, for the sureties are entitled to stand upon the precise terms of their contract, by which they stipulated in this case for the official, not the personal dealings of their principal. (Burge on Suretyship.)

Judgment reversed and cause remanded.