Fuqua v. Stone , 1 Stew. 435 ( 1828 )

JUDGE GAYLE

delivered the opinion of the Court.

Some of (he assignments of error relate to defects in the writ, which cannot be noticed after a general demurrer to the declaration. The only assignments of error which are necessary to be considered, are the second and third; which are, that there is no cause of action shewn in the declaralion, and there is no suggestion of damages on the roll which could authorize the verdict of the jury.

By a reference to the declaration only, the bond which is therein described is not authorized to be given by any statute whatever. It is a common money bond, given to the Judge of the County Court and his successors in office, by the defendant below and two others as his securities, and it is sued to the use of the guardian of S^fokely Fuqua and Perrine Fuqua. It is the common law doctrine, that the plaintiff may declare for the penalty without setting out the conditions of a bond, which, being for the benefit of the defendant, he may avail himself of in his plea; and if he fail to do so, judgement will be entered for the penalty. A bond may be given by one person to another in any form, either with or without conditions $ but bonds given to the Judges of the County Courts are always to compel the performance of particular duties, and must have a condition annexed. It follows then, that in all suits brought by the Judges of the County Courts on bonds given to them in their official capacity, the conditions should be set forth and breaches assigned. On this ground, therefore, the demurrer to the plaintiffs’ declaration should have been sustained.

Note. See the case of the Governor vs. Gantt et ah ante page 388.

But if, after the demurrer tv as overruled, the plaintiff was desirous of recovering only the damages which had accrued to the guardian, by reason of the default and delinquency of the defendant as administrator, which seems to have been his object by reference to the endorsement on the writ, he should then have suggested damages on the roll so as to refer the matter legally to the jury.

The judgement must be reversed entirely, for the writ itself is defective in not shewing a good cause of action against the securities, who are not liable till a breach of condition of the bond by the administrator is shewn in the way pointed out by the statute.

Judgement reversed.

Judge White not sitting.

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