Robertson v. Morgans Administrators ( 1843 )

Chief Justice Ewing

deliveredtheopinionof the Court.

Robertson, the deputy of Morgan, late Sheriff, was in default, in failing to pay over to a creditor money collected upon an execution. Judgment was recovered against Morgan and his sureties on his official bond, and the money coerced from the sureties, Morgan having failed. His administrators brought this suit against the deputy and his sureties, on his bond of indemnity to Morgan, and the question is, can the administrators recover,.

It has been determined by this Court, that though a covenant or condition to indemnify against a debt or duty already incurred, is not broken without suit brought against the covenantee, yet when the covenant is to indemnify against a debt or duty, which may accrue in future, a liability to suit is a breach: Lewis vs Crockett, (3 Bibb, 197.)

If Morgan’s right of action did not depend upon the institution of suit against him, much less can it be made to depend upon his payment of the money to the creditor. A liability to suit entitled him to his action; and he is made liable to suit by the default of the deputy. Plaving a right of action' he or his administrator may recover, not only for the injury incurréd but for that which may accrue, to the extent at least of the whole amount of defalcation. And if the debt is not paid by the deputy, and the Sheriff of his sureties shall be subjected to costs and. damages by suit, the whole amount which he or they may be made to pay may be recovered by him from his deputy and his sureties, as incidental to and produced by the default of the deputy, and that too whether the same is paid by the principal or his sureties.

May 5. Iiarlan fy Craddock for plaintiffs: McHenry for defendants.

This view of the deputy’s liability renders it unnecessary to examine the pleas critically, to which demurrers have been sustained. They are all based upon the idea that the deputy is not liable, either before suit brought against the principal, or before judgment recovered, or before the money is paid by him to the creditor, and any of them, from the view taken of the liability of the deputy, it will be seen, is nota bar to the plaintiff’s action.

Judgment affirmed with costs and damages,