Governor v. Gantt , 1 Stew. 388 ( 1828 )

J UDGE TAYLOR

delivered the opinion of the Court.

By the seventeenth section of an act passed 14th of June, i 821, entitled “an act to repeal in part and amend an act entitled an act to regulate the proceedings in the courts of law and equity in this State,” it is provided, “that where no one shall have been admitted and qualified as executor, executrix, administrator, or administratrix, within three months after the death of the deceased, or where the ex-ecutorship or administration shall have become vacant by death, resignation or removal, the Judge having jurisdiction of the case, may commit the administration to the sheriff or coroner of the county, and (unless the Judge shall otherwise order) no other oath, bond or security, shall be necessary to be given than the bond and oath of office already taken and given by such sheriff, &c. but on his bond for the performance of the duties of his office, he and his securities shall be liable for his administration, and such bond may be sued, and judgement from time to time recovered thereon in the same manner as is or may be provided by law, in case of other bond of executors, administrators and guardians.” In page 205 of the Digest, section 16, it is provided that the above recited section shall be so construed as to attach the said administration to the offices of sheriff or coroner, and not to the person. By the last paragraph of section 13, page 196 of the Digest, it is declared that “ such bond (of executor or administrator) shall not become void on the first recovery, and may be put in suit and prosecuted from time to time against all or any one or more of the obligors, in the name and at the costs of any person or persons injured by a breach thereof until,” &c.

The object of the last provision is obviously to make the person for whose benefit a suit may be instituted, responsible for the costs, and it is believed to be error if the statute is not'complied with so as to secure the Judge of the County Court from any responsibility for the costs incurred in such action. Were a different construction to prevail, malicious and evil disposed persons might with impunity harrass executors and administrators with endless law suits, and be themselves safe from any injury resulting from defeat. It is the opinion of the Cnurt, that the declaration should shew for whose benefit the suit is instituted, and that the action should be brought in the name of the Judge of the County Court, for the use of such person; and unless this appears in the declaration, the defendant may well demur.

The question recurs, are sheriffs who may be appointed administrators by virtue of their office, to be sued in the same way ? We have seen by the statute, that the “ bonds may be sued, and judgement from time to time recovered thereon, in the same manner as is or may be provided by law, in case of other bonds of executors, administrators and guardians.” The very terms of this act places them on the same footing that other administrators stand on, and all the reasons which apply in the one case apply also in the other. It is contended however, that the first count in the declaration is merely on the obligation, that there is nothing in that count to shew in what character the defendants are sued ; that although oyer is craved by the defendants, neither the bond nor condition is set out; therefore it was error to sustain the demurrer to that count.

Upon an examination of that count, it appears that in the description of the bond, there is an omission to state the sum for which it was given. This renders it necessary to resort either to the second count or endorsement in the writ for something to amend by, and in doing so, we cannot overlook the character in which the defendants are sued, which is stated in both.

No opinion is given upon the other points made in this case. The judgement is affirmed.

Judge Gayle not sitting.