Governor ex rel. Rutherford v. Raley , 34 Ga. 173 ( 1865 )

By the Court.

Jenions, J:

delivering the opinion.

The Court below held that the plaintiff could not recover : 1st, Because there was no privity between him and the defendants ; 2d, That the amount paid by Butherford, or which might have been recovered against him by his client for negligence, was not a proper measure of damages in this case; 3d, Because Butherford has no right to maintain this action against the sheriff’s securities.

[1.] As regards the question of privity, it may be said that the parties to the record, plaintiff and defendants, are the obligee and the obligors of the bond upon which the suit is instituted, and that, therefore, in a strictly technical point of view, there is no lack of privity. But the nominal plaintiff has no interest in the suit — merely sues for the use of Eutherford, who is to be benefited by the recovery. The question then is, as to privity between the usee and the defendants. The instrument upon which this action is founded is an official bond — a sheriff’s bond. The principal and his sureties thereby bind themselves' to the Chief Magistrate of the State, in a penal sum, for the faithful discharge by the former, of his official duties. It is a statutory bond, and to the statute we must look to ascertain the legal consequences resulting to the obligors, from its execution and delivery. This bond was required by the 46th section of the Judiciary Act of 1799.—T. R. R. Cobb's Digest, 575.

That section provides that the Sheriff’s “ bond shall remain in the office of the Clerk of the Superior Court of such county, (the county for which the Sheriff is commissioned,) and may be sued for by order of the said Court, for the satisfaction of the public or persons aggrieved by the misconduct of the Sheriff or his deputy.” This statute gives a right of action upon the bond to any person so aggrieved. All, then, that the usee in such an action is required to prove is: 1st, That the Sheriff had been guilty of misconduct; 2d, That he has been thereby aggrieved ; and 3d, The amount of injury he has sustained. This proof being made, the statute supplies the privity by giving the right of action.

The misconduct of the Sheriff is established by the proof that he collected the sum of money duo upon a fifa in favor of Brown’s administrator vs. Parker, and failed to pay it over to the plaintiff or his attorney. In Thompson vs. The Central Bank of Georgia, 9 Ga., 417, this Court held that “ It is part of the business of his office to collect and pay over money. When the money comes into liis hands, the law implies a promise to pay it to the plaintiff, and upon that promise an action will lie. Mo demand was necessary.” It will scarcely be questioned that the plaintiff in the execution under which the money was collected, had he not been otherwise satisfied, might have recovered upon this evidence.

But how does a right of action accrue to Eutherford ? lie was the attorney of record in the judgment by virtue of which the money was collected. He stood between the plaintiff in execution and the Sheriff. It was his duty to compel the Sheriff to pay over the money to him or to the plaintiff. His neglect to do so within a reasonable time, made him liable to respond to his client for the sum collected by the Sheriff. — Nisbet vs. Lawson, 1 Ga., 281.

This responsibility was enforced upon him by the plaintiff’s demand. He did not abide a suit. He knew his liability and met it like an honorable attorney. He paid the money to his client. To this payment he became liable by the misconduct of the Sheriff, and he, therefore, was aggrieved by it. He did no more than his duty — than the law would have compelled him to do — but the doing it, transferred the grievance from his client to himself. And if that grievance would have given a right of action to his client before payment by him, why not to him, after such payment ?

[2.] ¥e see no force in the point as to the measure of damages. “ The amount of the debt is, prima facie, the measure of damages.”—17 Ga., 632. It may be “ The actual loss of the parties injured.” — Ibid., 632-3. Rutherford should have responded to his client for the amount collected by the Sheriff, with interest, and this would be the measure of his damage.

[3.] If Rutherford had aright of action against the Sheriff, he had also against his securities, for they, by their bond, made themselves responsible for the misconduct of their principal.

We, therefore, reverse the judgment of the Court below, and order the nonsuit set aside.