Kendall v. Error

• Decision Date: 31 August 1852
• Docket Number: No. 10.,10.
• Citation: 12 Ga. 36
• Parties: Prothro & Kendall, plaintiffs in error. vs. Matthew Orr et al. defendants in error.
• Court: Georgia Supreme Court

12 Ga. 36

Prothro & Kendall, plaintiffs in error. vs. Matthew Orr et al. defendants in error.

No. 10.

Supreme Court of the State of Georgia

AUGUST TERM, 1852.

Debt, on Sheriff's bond, in Pike Superior Court. Tried before Judge Stark.

This was an action of debt brought by Prothro & Kendall, against Matthew Orr and his securities, upon the official bond of Orr, as Sheriff of Pike County, for money alleged to have been collected by him on a ft. fa. in favor of Prothro and Kendall, against one Joseph B. Askew.

The defendants, among other things, pleaded a former recovery upon the said bond, by Reuben Brown, to the amount of the damages sustained by Brown, in consequence of Orr having collected and failed to pay over money on certain fi. fas. placed in his hands, in favor of Brown.

Upon the trial it appeared in evidence, that Orr was elected Sheriff of Pike County, on the 3d day of January, 1842, and executed his bond on the 11th day of February, ensuing.

The Court charged the Jury, " that the bond sued on, was a Common Law bond, not having been given within the time prescribed by the Statute, and that the judgment rendered in the case of The Governor, for the use of Reuben Brown, against Orr and his securities, was a bar to the plaintiff's right to recover in this action."

The Jury found a verdict for the defendants; whereupon, counsel for plaintiff moved the Court for a new trial, upon the grounds, among others, that the Court erred, in charging the Jury that the bond sued on, was a Common Law bond, and that the recovery in the case of Brown, was a bar to the plaintiff's right of action."

The Court refused to grant a new trial, and this decision is assigned as error.

Counsel for Prothro and Kendall, then moved the Court to have the verdict and judgment rendered in the case of The Governor, for the use of Brown, against Orr and his securities, corrected, by entering it up for the sum of $20,000, the penal sum of the bond, in lieu of $984.00, the amount of the damages sustained by Brown, and the amount for which the verdict and judgment had been rendered; so that by scire facias, they, the said Prothro and Kendall, might come in and have their claim against Orr satisfied.

The Court refused the motion, and this decision is assigned as error.

O.C. Gibson, for plaintiff in error submitted:

That there had been no former recovery on the bond sued on, and that the bond was given in compliance with [the Statute. Prince, 177, 178. Cobb's Digest, 502, 200, 208, 1114, 1142, 1 Kent, 394. 1 Kelly, 380. 3 Geo. Rep. 499.

H. & G. J. Geene, submitted the following points, and authorities for the defendants in error.

1. The amount of the verdict found by the Jury, on the trial of the action pleaded in bar, was not the criterion by which the Court was, or should have been governed, in ascertaining its legal effect, when pleaded to a second suit founded on the same bond, but only the fact whether or not there had been a former recovery on the same bond. See 3 Kelly, 499. In that case, the first recovery pleaded in bar was for less than the penalty of the bond.

2. The record of a former recovery pleaded and introduced, showed that that action was founded upon the same bond that the present one is, and in favor of the same plaintiff, (Crawford, Gov &c.) against the same defendants, but for the use of differ-ent individuals. But one recovery can be bad upon a Common Law bond. 3 Kelly, 499.

3. The bond sued on, is a Common Law bond, it not having been given within 30 days after the election of Orr. See Stephens and others vs. Crawford, 1 Kelly, 574. Same, 3 Kelly 499. Crawford, Gov. &c. vs. Howard, 9 Geor. 314.

4. The facts sought to be proven by Wiley E. Mangham, were irrelevant to any issue before the Court, and were properly rejected. See 10 Geo. Reps. 560. The plaintiff stated no object or legal purpose for which he sought to introduce the testimony, neither does this bill of exceptions show for what purpose the testimony of Mangham was offered.

5. As to the refusal of the Court to amend the verdict and judgment, see 2 Kelly, 341. 8 Geo. Rep. 208.

By the Court.—Lumpkin, J. delivering the opinion.

This is an action of debt, brought by the Governor, &c. for the use of George Prothro and Elisha Kendall, against Matthew Orr, the late Sheriff of Pike County, and his securities on his bond, for an alleged default, in failing to pay over money collected for the plaintiffs, on a fi. fa. at their instance, against one Joseph B. Askew.

To this action, the defendants pleaded, among other things, that the instrument sued on was not a statutory, but a Common Law bond, because the same was not made and delivered within thirty days from the time of the election of Orr to the office of Sheriff, as required by the Statute; and that one recovery having been had thereon already, in behalf of the then Governor, for the use of one Reuben Brown, there could be no other suit established on said bond, for the recovery of the whole, or any portion of the penalty thereof. The plaintiff moved to strike out the plea of former recovery, upon the ground that the instrument sued on, was a statutory and not a voluntary bond; and that the plea did not show that the whole penalty of the bond had been exhausted, which was $20,000, but that a recovery in favor of Brown, was had in the sum of $964.47 principal, and $385.85interest, and the sum of $26.25 cost only, it being the amount of damages which he had sustained in the premises.

The Judge of the Circuit Court, acting upon the adjudication of this Court, as it was his duty to do, overruled the demurrer to the defendant's plea, and this is the only alleged error in the bill of exceptions, which we find it necessary to consider.

The Act of 1809, requires the Sheriff to make application for his commission to the Executive, within twenty days after being elected to the office. (Prince, 177.) The Act of 1811, bound the Sheriff, in ten days after being notified of the arrival of his commission, to take the oath of office, and give the security required by law. (Ibid, 178.) And the Act of 1823, declared the office vacant, provided the officer elected failed to apply for and obtain his commission, and qualify within the time prescribed by the Acts of 1809 and 1811. Ibid. 183.

Now the construction heretofore put upon these several Statutes by this Court was, that more than thirty days must not intervene between the election of the Sheriff and the date of his bond. In this case the election took place on the third day of January, 1842, and the bond was given on the 11th of February next ensuing. Consequently the presiding Judge pronounced the bond not good as a statutory bond. And if there was error in this judgment, the fault is outs, not his.

It is again argued, however, and we must say with great force, that more than thirty days might necessarily elapse between the time of the election and the execution of the bond, and that still its validity as a statutory bond would not be destroyed. The Sheriff might, from circumstances beyond his control, be unable to apply for his commission, until the last day of the twenty allowed him for that purpose. Owing to the press of business in the Executive...