McKee v. Griffin , 66 Ala. 211 ( 1880 )

STONE, J.

The present suit is against the sureties of McEarlane, on his official bond as register of the Chancery Court. The bond was executed and approved August 13th, 1857, and recited that McFarlane had been appointed register of said court. As the law then stood, registers held office for four years, unless removed by the chancellor for misbehavior, malpractice, or negligence. — Eev. Code, § 720. McFarlane’s term of office, under that appointment, and under that bond, terminated August 13th, 1861. The condition of the bond was, that McFarlane would “ well and truly fulfill and discharge the duties of such office during the time he continues therein, or discharges any of the duties thereof.” This is a compliance with the statutory requirement. — Code of 1876, § 163. Such bond is obligatory on the principal and sureties, for any breach of the condition “ during the time the officer continues in office, or discharges any of the duties thereof;” “ for the faithful discharge of any duties which may be required of such officer, by any law passed subsequently to the execution of such bond, although no such condition is expressed therein ; for the use and benefit of every person who is injured, as well by any wrongful act committed under color of his office, as by his failure to perform, or the improper or neglectful performance of those duties imposed by law.” — Code of 1876, § 179. Our rulings on this question, .following both the language of the statute and the uniform rulings of other courts, have been, that while the legislature may cast new duties on an officer, and hold his sureties on a bond previously executed bound for their faithful performance ; yet this liability is limited to duties enjoined, imposed or sanctioned by law. In other words, the duty, for the disregard or violation of which complaint is made, or in reference to which the wrongful act is committed, must be one imposed or authorized by law. A mere private act, not pertaining to any function the law casts on him, although done by one holding a bonded office, imposes no liability on his sureties. — Addison on Contracts, § 1117. “For acts not within the line of official duty and authority, not under color of office, he may incur personal, not official responsibility; and in that personal responsibility, the sureties on his official bond are not involved.”—Coleman v. Ormond, 60 Ala. 328; Brewer v. King, 63 Ala. 511; Morrow v. Wood, 56 Ala. 1; Kelly v. Moore, 51 Ala. 364; Moore v. Madison Co., 38 Ala. 670; McElhaney v. Gilleland, 30 Ala. 183. See, also, Drake v. Webb, 63 Ala. 596.

We have stated token Mr. McFarlane entered upon his office — August 13th, 1857 — and when the term covered by that bond expired — August 13th, 1861. During that term, probably in 1859, Mr. McFarlane, acting for the judge of probate, granted an order to sell some slaves for partition among several owners, and appointed commissioners to make the sale. The sale was made by the commissioners. These proceedings were had under chapter 7, title %, part 3, of the Code of 1852, as the same had been amended by acts approved February 15th, 1854 (Pamph. Acts, 72); approved Feb. 5th, 1856 (Pamph. Acts, 20); and, probably, by act approved Feb. 8th, 1858 (Pamph. Acts, 252). The same subject forms chapter 7, title 2, part 3, of the Code of 1867, commencing with section 3105; and it forms article 1, chapter 14, title 2, part 3, of the Code of 1876, commencing-with section 3497. The right of the register, acting for the judge of probate, in granting the order, and appointing commissioners to make the sale, was not questioned in the court below, and is not questioned here. The sole question raised for our determination is, whether McFarlane’s sureties as register are liable for the default charged against him.

A suit was brought by McKee,-against one of the tenants in common, in 1859, and McFarlane,- as register, was then summoned as a garnishee. The purpose was to reach and condemn the defendant’s interest in the proceeds of the property, which had been sold for partition. The property, except 5 per cent, cash, had been sold on credit, bonds with surety taken to secure the purchase-money, and the money and bonds were in the hands of the commissioners when the garnishment was served. August, 1861 (probably on the 3d day), the commissioners, having collected a part of the money due on the bonds, reported their sale and proceedings to McFarlane, register, and then paid over to him the money in their hands, about eight hundred dollars. McKee prosecuted his suit against the defendant, one of the tenants in common, and obtained judgment against him. McFarlane failed to answer as garnishee ; judgment by default was taken against him, and it was made final. Execution was issued on each of these judgments, and returned no property found.

At the time the mouey was paid to McFarlane (August 3d, 1861), there was no statute authorizing the commissioners, appointed to sell property for partition, to pay the proceeds to the judge of probate. Nor was there such statute, during the term covered by the official bond sued on in this action. True, - on the 11th November, 1861, an act was approved, explanatory of the act of February 5th, 1856, which authorized the commissioners to “discharge themselves from all liability, for moneys received by them for property sold under said act, by paying over the same into the hands of the judge of probate.” — Pamph. Acts, 55; Code of 1876, § 3519. This, however, could not retroact, and make that an official act, which at the time of its doing was a private deposit, unauthorized by any law.

There are other grave questions which might be discussed in this case, but what we have said above renders their dis.-= cussion unnecessary. The plaintiff has shown no cause of action against the defendants; and under the undisputed, record facts, he has no right of recovery against them. Without noticing specially the several points raised, we think the court rightly ruled that, under the testimony, the plaintiff was not entitled to recover. — 1 Brick. Dig. 780, §§ 96, 97.

The judgment is affirmed.

Brickell, O. J., not sitting.