Towns v. Hicks

By the Court. Nisbet, J. delivering the opinion. [1.] The breaches in this case are sufficient. In addition to the general breach assigned, the plaintiff assigns special breaches, with quite sufficient distinctness and particularity. They are issuable ; that is, the defendant is clearly notified of what constitutes the ground of damage to the plaintiff. He is informed of what he is to defend against. The plaintiff avers that the usees were both judgment creditors of certain persons; states the amount of each judgment; that executions issued on them and were levied by the Sheriff on certain slaves; that a large amount of money was raised from the sale of the slaves, and went into the hands of the Sheriff. He also avers, that the usees, Moore and Myrick, were also the owners, by assignment to them, of another judgment against the same defendants, the amount of which is stated, which had also alien upon the same fund. He states the aggregate amount due to them upon these three judgments ; also, that a rule was moved against the Sheriff for the money; that an issue was formed thereon and sent to a Jury, and a verdict rendered against him for the amount due to them on all these judgments ; that a judgment was entered in their favor for that sum, upon which execution issued, and upon which execution there was a return of nulla bona, and therefore, he says, they are damaged, &c. One of the arguments advanced against the sufficiency of the assignment of breaches is, that the declaration does not state the amount due upon these judgments severally, to each of the usees. That, we think, was not necessary. Each judgment, its amount, &e. is set forth — upon a rule against the Sheriff a judg [243] ment for a specific sum is awarded in their favor jointly. By judgment of the Court, the Sheriff is in default to them that sum, and they sue jointly upon his bond to recover that sum. A recovery in this action would be a good bar to any subsequent several action on the bond brought by either of them. [2.] The Court below held, that the execution which issued on the judgment on the rule against the Sheriff, was irregular and void, and therefore the action could not be sustained upon the bond against the Sheriff and his sureties. We agree with the Court, that the execution was irregular and void, but we deny the consequence deduced from that fact by the Court. It does not follow, that because the issuing of an execution upon the order absolute, or the judgment of the Court, was irregular, the plaintiffs have no right to proceed upon the bond for the default of the Sheriff The proceeding against the Sheriff, by rule, is not a suit in which a judgment is rendered on a verdict, which may be enforced by process of fieri facias. It is a proceeding addressed to the Court. There may, or may not, be any issue of fact to be tried by a Jury. If there is none, the Court grants an order that the Sheriff pay over the money to the persons entitled to it; that is the judgment of the Court, that so much money is in the hands of its officer, and that he pay it. If there is an issue of fact sent to a Jury, (as in this case,) it is for the purpose of informing the mind of the Court — of instructing its conscience— for money rules against the Sheriff are in the nature of equitable proceedings before a Chancellor. When that is done, the Court will, as where there is no issue, award its judgment. In either case, the Sheriff refusing to comply, is in contempt, and the proper proceeding against him is an attachment for the contempt. [3.] But what then ? Is the party injured by the fault of the Sheriff denied his remedy on the bond ? By no means. The reasoning upon which the Court below went, must have been after this fashion, I suppose : a return of nulla bona upon a fi. fa. against the Sheriff is necessary to charge his sureties; there is a Ji. fa. in this case against the Sheriff and a return of nulla bona; but the fi. fa. and the return are void; therefore the sureties are not liable on the bond. The vice of which reasoning is found in the assumption that a return of nulla bona is necessary to charge the sureties. Their undertaking is to make good the official defaults of their principal. That default is, in this case, established [244] by the judgment on the rule; that fixes their liability. Equally unfounded is the idea that a rule absolute against the Sheriff is a satisfaction, and therefore the sureties are not liable. As before stated, it ascertains, in the most solemn form, his default, to protect against which the bond is given,- and their liability continues until that is paid. Let the judgment be reversed on the three grounds taken in the assignment.