State v. Parchmen

• Decision Date: 31 December 1859
• Citation: 40 Tenn. 609
• Parties: THE STATE, for Nolin's use, v. PARCHMEN et al.
• Court: Tennessee Supreme Court

40 Tenn. 609

THE STATE, for Nolin's use,

v.PARCHMEN et al.

Supreme Court of Tennessee.

December Term, 1859.

FROM STEWART.

Verdict and judgment for the defendants. Plaintiffs appealed.

Kimble, for plaintiff in error; House, for defendants in error.

MCKINNEY, J., delivered the opinion of the court.

This was an action of covenant brought by Nolin against Parchmen (as former sheriff of Stewart county), and the sureties to his official bond, for alleged breaches, of the condition thereof.

It appears from the bill of exceptions, that the defendant, Parchmen, was duly elected sheriff of said county on the 4th day of March, 1854, the day fixed by law for such elections; and that on the 3d day of April following, he executed the bonds required by law, and was regularly qualified and inducted into office by the County Court of said county.

It further appears, that on the 11th day of March, 1856, an execution issued from the office of the Circuit Court of said county, founded on a judgment in favor of Nolin, the plaintiff, against Newell and Pritchett, for $1,081.09, tested of the March term, 1856, of said court, and returnable to the July term ensuing; which execution came to the hands of Brandon, one of the deputy sheriffs of said county, by the special direction of the plaintiff, Nolin, a day or two after its issuance.

It likewise appears, that at the election on the first Saturday of March, 1856, one Bogard was elected to the office of sheriff of said county, and on the 3d of April, 1856, the latter was duly qualified and entered upon the execution of the duties of his office.

It does not appear that, in point of fact, Parchmen, whose term of office had nearly expired, had knowledge of the fact of the issuance or delivery of said execution to his deputy. The proof shows that Brandon, the deputy, retained the execution in his hands, and that on the 8th of July, 1856, he received a payment of $700 from the defendants in the execution, which he credited thereon, and paid the same over to the plaintiff a few days thereafter. And on the 1st of December, 1856, he returned said execution to the clerk, and procured the issuance of an alias execution. The proof tends to establish pretty clearly that Brandon acted as the agent of the plaintiff in this matter, and that he had permission from the plaintiff to retain and hold up the execution.

In November, 1856, Newell and Pritchett, the judgment debtors failed, in consequence of which the residue of the plaintiff's judgment remains uncollected.

Upon this state of the facts, several breaches of the condition of the official bond of Parchmen are assigned, of which only two need be noticed. First, the failure to execute and make due return of said execution to the July term, to which it was returnable. And, secondly, the neglect of Parchmen, on going out of office, to deliver the same over to his successor.

In answer to the first breach assigned, it is said for the defendants, that, in law, Parchmen was not sheriff at the date of the issuance of the execution, namely, on the 11th day of March, 1856; that, under the constitution (Art. 6, sec. 15), the term must be held to commence from the day of the election, which, in this particular...