Cannon v. Snowdon , 23 Tenn. 360 ( 1843 )

Reese, J.

delivered the opinion of the court.

This is an action of covenant, brought by the personal representative of Newton Cannon against Hollis and his sureties as Constable.

The declaration sets out the bond which was signed and sealed by the parties defendant, and by which they acknowledged themselves to be held and firmly bound unto Newton Cannon, Governor of'the State of Tennessee, and his successors in office, in the sum of, &c. And proceeds to describe a good official and statutory bond of a Constable. The defendant demurred, upon the ground mentioned in aprevious case, and determined in the case of the Union BanTcvs. Plummer, that these official bonds, taken to persons in office, having succession, vest in the "office, and do not, and cannot vest in the person of the incumbent. The Circuit Court sustained the demurrer, and the plaintiff has appealed to this court in error.

The principle upon which the judgment of the Circuit Court was founded, has not been questioned by the plaintiff’s counsel, but it is contended, that the bond might not have been taken by and acknowledged before the county court, and might not therefore be statutory. This is possible, but not shown. The declaration contains all which would be necessary to maintain the action as a statutory bond. It is upon the face of it, and as described a statutory bond. Prima facie it vests- in, and belongs to the successor of Newton Cannon, to the office. And those, therefore, who alledge the title of Mrs. Cannon, the personal representative of the private individual, Newton Cannon, must show the grounds upon which that title exists. Having stated such facts as vest the title elsewhere, they must not stop there, but state also those facts which bring back their title again, and revest it. This they have not done.

The demurrer, therefore, was properly taken, and correctly sustained, and the judgment of the Circuit Court will be affirmed.