State ex rel. Merrill v. M'Clane , 2 Blackf. 192 ( 1828 )

Scott, J.

An action was instituted in the Wayne Circuit Court by the state of Indiana, on the relation of Samuel Merrill, treasurer, for the use of the county seminaries, against William M’Clane, sheriff of Wayne county, and his sureties, on his official bond. The declaration charges, that certain lists of fines for non-performance of military duty had been put into the hands of the defendant M'Clane, as sheriff, for collection; and that he had neglected and refused to collect the same. The defendants demurred generally to the declaration, and had judgment in the Circuit Court.

It is alleged in support of the demurrer, that no person appeared as a relator who ivas responsible for costs. This objection to the declaration we think insufficient. The fines mentioned in the declaration belong, when collected, to the seminary fund: Samuel Merrill, as treasurer, is the trustee of that fund; he is, therefore, the proper person to appear as relator in such cases. It is a general rule that the unsuccessful1 party pays costs, but there are some exceptions to that rule. It is a general .rule also, that, in actions brought on official bonds, some person must appear as relator who has a beneficial interest in the suit, and who is responsible for the costs, where costs are legally demandablc; but it does not follow, that no man can appear as relator in cases where the law allows no costs.

Another and, we presume, the principal ground taken in support of the demurrer, is, that the declaration contains no averment of the non-payment of the penalty of the bond by the de. fendants or either of them. This ground is also untenable. In actions on common penal bonds for the payment of money, or for the performance of some specific duty to any private person, it is necessary, in the declaration, to aver the non-payment of the penalty as well as the breach of the condition; and such are all the forms; but a sheriff’s official bond is made for a different purpose and is subject to a different rule. Official bonds are made to the state for the benefit of all persons, who may j>e aggrieved by the negligence ormalconduct of the officer. No man in the state is competent to receive the amount of such bond; no payment to any man in the state would exo nerate the officer or his sureties; and it is therefore unnecessary to aver, in the declaration, the non-payment of the penalty.

Rariden, for the appellant. Bunn, for the appellees.

For these reasons we think the demurrer ought to have been overruled.

Per Curiam.

The judgment is reversed with costs. Cause remanded, &c.