Governor v. White , 4 Stew. & P. 441 ( 1833 )

Safpold, J.

The action was debt, in the name of the Governor, for the use of Callahan, against White, as sheriff of Pickens county, and his securities, on his official bond.

The breach assigned in the declaration, is, that said White, as sheriff, had collected, by virtue of sundry executions, of divers persons, a large sum of money, to wit, the sum of five hundred and twenty-eight dollars, which was and still is due to said Cal-lalian, for his fees as Clerk of the Circuit Court of said county of Pickens.

To this declaration the defendants demurred; and the Court sustained the demurrer, and gave judgment in favor of the defendants.

The judgment on demurrer is the cause assigned for error.

The exceptions taken to the declaration, are understood to he—

1st. That no action was sustainable against the defendants, securities, until the liability of the principal was first fixed, by a separate suit against him, establishing the fact and amount of his default.

2d. That the breach assigned, was too general and indefinite, in not identifying the several executions on which the money claimed is alleged to have been collected.

The doctrine relied on in support of the first exception, is believed to relate mainly, if not exclusively, to proceedings against executors and administrators. Admitting such to be the course of proceeding in Virginia and some of the other States, in relation to executors and administrators; and that in this State, a different mode of proceeding, but one calculated to ascertain the amount due from executors and administrators is required, before suit can be brought on the bonds, against the securities, the remedy against sheriffs and their securities, is not necessarily the same. The various statutes in force in this State, respecting 'the liability of the latter, breathe a different intent. They authorise joint proceedings in the first instance, against sheriffs and their .securities, even in the summary mode, by motion. The act “ to provide for the appointment of County officers, and for other purposes,” passed in 1819;^a by the 18th section thereof, directs, that when any sheriff shall fail to perform the duties required of him, the person aggrieved, may move against such sheriff and his securities in office, for the amount he has failed to pay over, or for failing to,return any execution as required by law, upon giving three days” notice of such motion, to the delinquent sheriff or his securities in office,

It is true this was not a proceeding under this statute; but there is other statute authority for the institution of the ordinary action of debt, on the office bond, against the sheriff' and his securities, which does not recognise the necessity of- a previous suit against the principal alone ; and surely it could not have been the intention of the Legislature, to subject the securities to an original joint responsibility with the principal, when the remedy was sought by motion, and not when by the ordinary action of debt. The latter mode, by giving more time to the defendants for preparation, and a trial by jury, is better calculated to insure justice ; nor can it be supposed, that either the principal or his securities would be •less competent to make effectual defence, when jointly sued in the first instance, than in any other .mode.

2. As to the objection, that the breach asssigned by the declaration is too general, in not identifying the executions, on which it is alleged the sheriff collected the money, which he refused to pay over, the .authorities appear fully satisfactory. It will suffice to notice but one. The case of Hughes vs. Smith & Miller,^a was an action of debt by a sheriff, against his under-sheriff and his security, upon an indemnifying bond, by the latter to the former. It stipulated that if Smith, the under-sheriff, should, in all things, execute the office aforesaid, during his continuance therein, according to law, so that the principal should not be made liable for the payment of any damages or money, in consequence of any of the acts of his said under-sheriff, then the obligation to be void.— The plaintiff assigned for breach of the bond, that ■Smith neglected to account and pay to the plaintiff, or to the several plaintiffs and others, divers sums oí money, amounting to a thousand dollars; but did ■not allege on what writs or executions he collected, or of whom he received the said thousand dollars, or that he received the same on any execution or other process whatever, on demurrer.

Chief Justice Kent, delivered the opinion of the Court, and held the assignment sufficient. He said such general assignment is now sufficient, in order to avoid a cumbrous prolixity, upon the record. His language is, “The breach is assigned in the words of the condition, and the assignment necessarily amounts to a breach ; and where that is the case, the general rule is, that the plaintiff may assign the breach generally, by negativing the words of the covenant; and were this assignment bad on special demurrer, certainly it is good on general demurrer.—See The Post-master vs. Cochran;^b Shum vs. Farrington, and Barton vs. Webb;^c Smith et al vs. Janson.^d The rule permitting such general assignment of the breach, by merely negativing the words of the covenant, is founded not aloné on the objection of prolixity, and the inconvenience of specific assignments, containing a description of the various items constituting it, but also on the consideration, that in cases like the present, the particular nature and extent of the default., is presumed to he equally, if not more certainly within the knowledge of the defendant than of the plaintiff.

According to this view of the case, the judgment below must be reversed, and the cause remanded.

a Toul.Dig. 676

a 5Johns. R 168

b 2Johns. 11 413

c 1 Boss Ai Pul. 646; ti Term.Rer 4K9

d 8Johns. E 111