Citation Numbers: 29 Ga. 110
Judges: Benning, From, Lumpkin
Filed Date: 6/15/1859
Status: Precedential
Modified Date: 1/12/2023
By the Court.
delivering the opinion. '
Upon a careful examination of the whole record, we feel constrained to award a new (rial in this case. Without considering the alleged errors separately, we prefer to submit our views generally, upon the law of the case, as applied to the rights of the parties.
The first bond v/as forfeited by the failure to deliver on the day of sale. Now, what took place afterwards was not necessarily a discharge of the bond. Expenses might have been incurred for the re-advertising, &c. The negro might have depreciated in value, so as not to have brought the amount' of the fi. fa. on the next sale day. In that event, the surrender of the negro, and the postponement of the sale? would only, go in mitigation of damages, and not in absolute discharge of the first bond.
There was error then in the holding, that the postponement, which Avas forced upon the parties, by reason of the first, failure, would prevent any recovery upon the bond.
As to the right of the Sheriff to maintain this action, for the use of the three parties for whose benefit he sues, upon the doctrine of substitution, we think the action was Avell brought in behalf of Toliver Jones and Edward Giddens, the securities of the Sheriff, rvho were compelled to pay the execution of Ezekiel B. Smith. True, the Sheriff has paid nothing, and by reason of his insolvency — which the Court should have allowed to be shown— nothing could be collected out of him. But his securities have been forced to pay this liability for him. They are entitled, therefore, to be substituted to all the rights of their principal; and amongst the rest, that of suing on the forthcoming bond.
It is said on the argument, that the Court did not intend
But how is it, as to the Turner and Stallings and Perkins case ? Their ft. fus were levied on the negro George also. And to prevent circuity, instead of collecting their respective demands out of the Sheriff’s securities, as did Smith, they propose to go directly upon the forthcoming bond. And it may be that, in principle, it is the same thing; and that, in equity, such a procedure would be sanctioned. But apart from the technical objection, that neither the Sheriff nor his securities, have any thing to pay on these claims, there are substantial reasons upon the face of the record, why this should not be done. To get the benefit of the testimony of James K. Giddens upon the trial of this case, he has been released by the creditors. Pie then has been discharged. Can his securities upon his bond be made responsible? It would seem not. And if no recovery can be had against the Sheriff or his securities, no action over can be had upon the forthcoming bond.
There is another stubborn fact disclosed upon the face of this record, which has not received that attention which its importance apparently deserves. After the negro George was again taken into custody by the Sheriff, it was agreed by one of the counsel for the creditors, or some of them, in writing, that he should be permitted to go into the possession of the defendants,the Evanses; and they were to bring the Sheriff another bond, for the delivery of the boy, that day week— that is, a week from the first Tuesday in July, 1844. Before that time arrived, the negro was run off to Texas, no bond was executed, and the Sheriff was unable to get hold of the property.
If the testimony of Col. Levi B. Smith was admissible to prove that he urged the Sheriff to sell George on the day of sale, we are clear that the reply of the Sheriff should have been let in, in explanation ofhis conduct.
Judgment reversed.