State ex rel. Robey v. Turner , 8 G. & J. 125 ( 1836 )

Doksey, Judge,

delivered the opinion of the court.

The important question in this cause, as respects the substantial rights of the parties, is whether the appellees, the sureties in the sheriff’s bond of the 8th of December, 1829, are liable for the breach set forth in the replication, to which the appellees have demurred. The breach assigned is the non-payment of money received on the 17th of May, 1830, under two writs offieri facias, issued on the 24th of November, 1828, and laid upon the lands of the debtor on the 6th of December, 1828; and on his goods and chattels on the 21st of January, following, '{'he issuing of the executions and their delivery to the sheriff were prior to the date of the bond sued on; the receipt of the money levied under tjiegi was subsequent thereto. The liability of a sheriff’s sureties for such a default as that complained of, is distinctly stated in the condition of his bond which defines the duty violated in these words, “ shall also well and faithfully execute and return all writs, process and warrants to him directed and delivered; and shall also pay and deliver to the person or persons entitled to receive the same, all sum or sums of money, tobacco, goods, chattels or property by him levied, seized or taken.” As soon then as a writ of fieri facias is delivered to the sheriff in contemplation of law, it attaches itself to the bond under which the sheriff derives his authority to act as such for the time being, and as far as regards the breach charged in the replication, the bond may be construed in the same manner, as if in terms its condition instead of applying as it does, to “all writs,” had embraced that fieri facias only.

If such be the true construction of sheriffs’ bonds, in reference to breaches of the character of that now before us, it necessarily follows, that the plaintiff has mistaken the bond on which his right of action accrued.

He should have sued on the bond, which clothed the 'sheriff with his official authority at the time the writs offi. fa. were placed in his hands. Whether it was his bond executed in the year of 1827 or 1828, we are unable to determine ; not being informed of their precise dates nor the time between the 24th of November and 6th of December, 1828, when the executions were delivered to the sheriff.

As a case establishing a different doctrine, we have been referred to The United States vs. Giles and others, 9 Cranck, 212, but in that case no such point as that now adjudicated, was raised or argued by the counsel concerned; nor did the condition of the marshall’s bond contain any such provision as that referred to in the bond of the sheriff.

For the same purpose a dictum of this court has been cited from the case of Hewitt and Russel vs. State use of Brown, 6 Har. and John. 96. But with the question adjudicated there, and that now determined, there is the most perfect accordance.

The question there, was whether the securities in the sheriff’s bond of December, 1814, were liable for the default of the sheriff, in not paying over money levied under an execution delivered to him in the year 1816, after he had given his official bond in 1815. The court determined that they were not; and in reference to and explanation of the grounds of their determination, they say, “ the sheriff’s bond is an annual bond, and the securities of each year are responsible for the neglects, defaults, acts and receipts of their principal, during the time only between giving the bond passed by them, and the execution of the next year’s bond by the sheriff;” This position asserted by the court was assumed in explanation of the grounds on which their decision in that case was made, and was not intended as the enunciation of an universal principle of law, applicable to all cases in which the liability of a sheriff’s securities could by possibility be involved. As bearing on the question before them in reference to which they designed to use it, this dictum of the court stands clear of all cavil or exception. It was legitimately conclusive of the point decided. They did not mean, as a literal interpretation of their words might import, that if an execution dated anterior to a sheriff’s second bond, but returnable subsequently thereto, were delivered to the sheriff and having been executed were not returned by the sheriff, the second bond would be forfeited ; because such a default is by the express terms of the condition of the first bond, made a forfeiture thereof. Nor did they mean, that if a short time before the execution of his first bond by a newly elected sheriff, a fieri facias were delivered to the old sheriff, and should be by him levied, which was returnable to a term subsequent to the qualification of the new sheriff, and no return thereof should be made, the securities of the old sheriff should not be responsible; because in the language of the court, such a default did not occur, “ during the time only between the giving of the bond passed by them, anti the execution of the next year’s bond by the sheriff.” Such cases as the two last mentioned, were not by the facts of the case in 6 Har. and John. 96, brought to the consideration of the court. They were not within their contemplation, and it would be doing them injustice therefore to assume; that they had passed any opinion upon them. To attach to securities in sheriff’s bonds, different liabilities from those imposed on them by the opinion of the county court, would be to deprive those bonds of that certain and well defined operation which their terms import; and would leave them for the most part the creatures of the subsequent caprice or designs of the sheriff, who could shift the responsibilities of his securities in different bonds almost at pleasure. The construction given by the county court, to the obligations assumed by the sureties in the several bonds of a sheriff, is strictly conformable to the conditions of those bonds, and to the plainest principles of natural justice. It equalizes as nearly as may be the liabilities of the securities in the several bonds, and properly repudiates the doctrine now insisted on by the appellant, which would in a great measure, render the last bond of the sheriff; answerable for his official acts during his three years5 term.

It avoids surprise and injury to parties who look to the Sureties in the bond at the time they are about to place pro-cess in the hands of the sheriff; and may confide in the Sufficiency of those sureties, with a eertainty that they are not to be deprived of that security on which they have reposed, by the substitution of another less satisfactory to them, and substituted without their concurrence or control» It has been urged as a ground for the reversal of this judgment, that it gives costs against the State of Maryland. This suggestion forms no objection to the validity of the judgment as was adjudged by this court in the case of Charlotte Hall school vs. Greenwell, 4 Gill and John. 409. But Suppose it were, whilst it remains in the record a fatal objection to the judgment; it. is a mere clerical error which this court would permit the appellees to cure, by amending the judgment agreeably to the provisions of the act of 1809, ch. 153, sec. 2. Upon another ground this objection is wholly unavailable to the appellants. It not being a point decided by the court below, the act of 1825, ch. 117, precludes its being brought to the consideration of this court.

The views we have taken of the main point in this cause, relieves us from the necessity of examining the minor questions which have been argued.

Concurring in opinion with the county court, we affirm their judgment.

judgment AFFIRMED.