Others v. Others
| Decision Date | 30 June 1850 |
| Docket Number | No. 98.,98. |
| Citation | 8 Ga. 569 |
| Parties | David J. Bothwell and others, plaintiffs in error. vs. E. O. Sheffield and others, defendants. |
| Court | Georgia Supreme Court |
In Equity, in Dooly Superior Court. Decision on demurrer, by Judge Warren, May Term, 1850.
The bill in this case, filed by David J. Bothwell and others, as the securities of E:0. Sheffield, former Sheriff of Dooly County, alleged, that the amount of the bond was $5000; that Sheffield and his Deputy collected, on sundry executions, an amount largely ex-ceeding the sum of $5000, which they failed to pay over, alleging as their excuse, that the money was deposited in their office in the court-house of Dooly County, and was destroyed by fire when the court-house was consumed. The hill alleged that many of the plaintiffs in fi. fa. had commenced suits against the Sheriff and his sureties to an amount exceeding the penalty of the bond, and others had not yet commenced suit; that two of the creditors had died pending the suits, and their representatives were not yet made parties; that the Sheriff was resisting the recovery, on the ground stated, but should he fail in his defence, the judgments against the sureties would largely exceed the penalty of the bond. The prayer of the bill was, that the Court would so direct the recoveries, that the creditors first entitled should recover to the amount of the bond, and the remainder be restrained from prosecuting their suits against the sureties.
On demurrer, the Court dismissed the bill, on the ground that complainants had a complete Common Law remedy.
This decision is assigned as error.
Hines & Hines, for plaintiffs in error.
Bailey, for defendants.
By the Court. —Lumpkin, J. delivering the opinion.
We concur fully in the judgment of the Circuit Court, that the securities have a plain and adequate remedy at Common Law. Whenever, by previous recovery, the penalty of the Sheriff's bond has been exhausted, they can plead this fact, and protect themselves from further liability; and this being the case, it would be unjust to the more vigilant suitors who have been aggrieved or injured by the official misconduct of the Sheriff, to restrain them from prosecuting their rights at law. Acts of 1847, p. 201.
Judgment affirmed.
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Tuttle v. Short
...A prior judgment for breach of duty exhausts the penalty of the bond, and respondent had no right to bring this action. Bothwell v. Sheffield, 8 Ga. 569. 35 Cyc. 1912. 5581 C. S. is merely a procedural statute, and leaves unchanged the substantive law that the penalty of the bond limits the......
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Witter v. Mass. Bonding & Ins. Co.
...of a surety, or in other words, that “the liability of the surety cannot be extended by implication.” In the case of Bothwell v. Sheffield, 8 Ga. 569, it is expressly held that sureties on a sheriff's bond, after recoveries have been had in the amount of the bond, may protect themselves aga......
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Witter v. Massachusetts Bonding & Insurance Co.
...of a surety, or in other words, that "the liability of the surety cannot be extended by implication." In the case of Bothwell v. Sheffield, 8 Ga. 569, it expressly held that sureties on a sheriff's bond, after recoveries have been had in the amount of the bond, may protect themselves agains......