Poer v. Brown

Wheeler, C. J. It is objected to the judgment, that the sheriff’s bond does not appear to have been properly taken, and is invalid, because, it is insisted, there is no sufficient evidence of any action of the County Court, directing in what sum it should he given, or approving of the sureties upon the bond, as the statute directs. (Dig., Art. 2882.) The giving of the bond presupposes that the sum for which it is given, had been previously fixed by the court, and is sufficient evidence of the fact. It is an admission that this pre-requisite of the law had been complied with, which the obligors cannot afterwards be heard to controvert. The endorsements upon the bond do furnish evidence of its approval, sufficient to authorize the clerk to take charge of and record it; and that is all that the statute requires. The entry of the chief justice, was for the better information of the [37] clerk, doubtless, whose endorsement is evidence that the bond was approved by the court. The objections to the want of evidence, that the bond was properly taken and approved, if well taken in point of fact, might be disposed of, by a reference to our opinion in the case of Wright v. Leath, (supra, 24.) But they are susceptible of another answer in this case. They go to the question of proof of the due execution of the bond. But such proof was not necessary under the pleadings. The action was founded on the bond, and its execution was not put in issue, or denied by a plea of non est factum, supported by affidavit. The plaintiff, therefore, was not required to prove the execution of the bond; it must be taken that it was duly executed by the defendants. (Sayles’ Practice, § 417; Hart. Dig. 741.) The due execution of an instrument includes its delivery; consequently, further proof of the complete execution of the contract, between the obligors and the state, could not be required. There is nothing in the objection to the evidence of the demand of the money of the sheriff. The authority of the person making the demand, was not called for or questioned. It was not necessary, therefore, that he should have produced it. Moreover, the evidence shows that it was recognised by the sheriff, by the payment of a part of the sum demanded. There was, we think, no error in permitting the plaintiff to discontinue as to the principal obligor, and take judgment against the sureties. The present, though more summary than ordinary suits, is nevertheless a suit; and we see nothing in the case to make it an exception to the general rule provided by the statute, that relieves the plaintiff from the necessity of proceeding against the principal, or enables the plaintiff to discontinue as to him, when he resides beyond the limits of the state, and proceed to judgment against the sureties. (Hart. Dig., Art. 670, 705.) We are of opinion that there is no error in the judgment, and it is affirmed. Judgment affirmed.