James v. State ex rel. Taylor ( 1873 )

Si'MRALL, J.,

delivered the opinion of the court:

Suit was brought by the State, as nominal plaintiff, for the use of Alonzo H. Taylor, against the sheriff and his sureties on his bond. The breaches are, substantially: that the real plaintiff, Taylor, was assignee of all the right, claim and interest of one Palmer, to an attachment suit in his favor, as plaintiff, against one Steele, upon which judgment was recovered, and the attached property subjected to the debt; money was levied upon by the sheriff, which was in his hands, which he has failed to pay over to Taylor. Another breach is, that he failed to return an execution.

The cuestión was raised by demurrer to the declaration, whether Taylor, being equitable owner of the judgment, and any money realized upon it, could maintain the action. Article 188, Code of 1857, page 137, prescribes that “ the bonds of all public officers * * * shall be payable to the State of Mississippi, and shall be putin suit in the name of the State, for the use and benefit of any person injured by the breach thereof,” and such persons shall be liable for costs.

In the absence of judicial construction in this State, and' elsewhere, it would seem to be the clear purpose of the legislature to give the remedy on the bond of the sheriff, or» other public officer, to any person who had sustained an injury by the misfeasance or nonfeasance of the officer. To whomsoever a substantial right belonged, affected injuriously by the non-action or misconduct of the sheriff, for him the remedy was meant. Intended, of course, in subordination to the rules prevailing in reference to actions and pleading.

At common law, the assignee of a judgment could not sue in his own name, because such chose in action was not assignable ; yet courts of law have long recognized the beneficial interests of the assignee, and afforded them all the aid and protection consistent with its modes of- procedure. Whilst parties suing at law must be clothed with a legal title, yet, when brought to its notice that another than the plaintiff has the equitable interest in the subject of the suit, that interest shall be secured. Thus, in Vanhouten v. Riley, 6 S. & M., 410, the assignee of the judgment, who was a distributee of the estate, was protected in the use of the process of the court, to obtain satisfaction out of the property of the estate, which had "lately been distributed.

In Brown v. Lester, 13 S. & M., 393, the suit was brought in the name of the Governor, by the usee, in an action against the clerk of the circuit court, upon his official bond, for a failure to place the suit upon the issue docket, whereby the plaintiff failed to recover a judgment at that term, and his debtor became insolvent.

The objection was made by demurrer to the declaration, that the plaintiff did not show a cause of action in himself, it being claimed that one Weaver, being the nominal plaintiff in the suit omitted to be docketed, was a necessary party. But, said the court, “Weaver was but a nominal party to the first suit. The plaintiff was the party beneficially interested, and the party who has sustained the injury. Suits on these bonds must be brought by the party injured. Weaver has sustained no injury. The suit must be brought in the name of the Governor, for the party injured.” The condition of the bond in that case was for the faithful performance of the duties of the office. “ A failure to discharge a duty” is a breach for which the injured party may recover damages.

The condition of the sheriff’s bond, as defined in the Code 'of 1857, is a comprehension, in general words, of his entire official duties, instead of an enumeration of the various things required of him, as under the previous law. The condition is, “ that he shall discharge all the duties of said office, and all the things and acts required by law, or incident to the said office.”

The case of Matthews v. Bailey, 25 Miss. Rep., 36, (de’cided in 1852), was a suit by the assignee of the judgment creditor, upon the sheriff’s bond. Among other stipulations In the bond, the sheriff “ shall pay all money collected by him to the persons to whom the same is due, his or their •lawful attorneys, executors, administrators, or assignees.'1'1 It was held that the “ assignee,1’ being named in the condition, could, of course, maintain the action. But the correctness of the principle laid down in Governor use of Brown v. Lester, 13 S. & M., 393, is distinctly affirmed, and said not to be distinguishable in principle from the case before the court.

We are unable to see how the rules of pleading stand in the way of sustaining the suit. The legal plaintiff in the cases quoted was the governor; in the case before us, the State. So that the obligee of the bond, as legal plaintiff,' having legal title, sues for the use of the party injured. In all suits upon official bonds; the usee, in the intendment of the statute, represents the beneficial right, whether he is entitled to the money withheld by the sheriff, as plaintiff in the judgment, or as his assignee. Neither can sue directly upon the bond, because neither have legal title to the instrument. But the assignee of the judgment, and of the money due upon it, is the only party that can be injured by the default of the sheriff, and he presents his claim for redress through the legal title, the obligee of the.bond.

We think the case is covered by that of Brown, Gov., etc., v. Lester. The rule there laid down meets our entire approval.

Wherefore the judgment is affirmed.