Justices of the Inferior Court v. Smith

[504] By the Court. Starnes, J. delivering the opinion. Error is assigned in this case, because the Court decided that the plaintiffs had no sufficient cause of action, inasmuch as the bond on which they brought suit, was illegal and void. We are of the opinion, that it is a valid bond, for the following reasons.: [1.] The Justices of the Inferior Court are the agents and trustees for the control and management of various public interests in the County of which they are officers. Among these, are the funds for the education of the poor. For the purposes of this agency, as this Court has held in the case of The Justices of the Inferior Court of Pike County, vs. The Plank Road Company, (9 Ga. R. 485,) they are collectively, a corporation with limited powers. As such, it would seem a fair and legitimate inference, that in managing these funds, which they are required by law to receive and disburse by their agents, they have authority to require a bond from any one, as a condition on which they entrust such, their agent, with the management and disbursement of the fund. And also, that as such agent, in their quasi corporate character, they have the right to bring suit upon such bond, in case of breach thereof. [2.] We think, however, that authority to take, and sue upon such bond, is more plainly to be derived from the special legislation on the subject of the poor school fund. It is true, that the Act of December 10th, 1840, authorizing the appointment of commissioners by the Inferior Court, who should have authority to appoint a Clerk and Treasurer for this fund, Avith compensation, and requiring that officer to give bond for the faithful performance of his duties is, (at least so far as such appointment of commissioners and Cleric and Treasurer is concerned,) repealed by the Act of December 27th, 1843. But that Act of 1843, still treats the Inferior Court as the primary custodians of the poor school fund; authorizes them to receive the fund intended for this purpose from all sources; to levy and collect an extra tax for the pur [505] poses of this fund,” to appoint commissioners, or such other persons as they may deem proper, to superintend the proper application of the fund, and the education of the poor ; and to pass and enforce such rules and regulations as they may deem best calculated to promote the objects of this Act.” Sotchh. 185. Here is still to be found direct and express authority to the Court from the Legislature to appoint some person who shall make “ proper application of the fund,” and who consequently shall receive and disburse the same. It cannot matter by what name such person shall be called ; and the appointment is not vitiatedby his being called Clerk and Treasurer. This,, indeed, would seem the most appropriate appellation. Though there is no express authority in this Act to require bond of such person thus appointed, yet, there is implied authority ; because there is authority to pass and enforce such rules and regulations as maybe best calculated to promote the objects of the Act. Such a grant must be liberally construed; and if, under and by virtue of it, the Court has, as a regulation — and finding what they have done within the scope of this authority, we must presume that it was done in pursuance of it — required bond and security of the person appointed, for the faithful performance of his duties, such bond is certainly taken by authority of law, and the breach of it constitutes a good cause of action. The faithful performance of duty which such person undertakes, is that contemplated by the Act — the safe custody and proper application of tho fund ; and a failure properly to account with the Court for tho same, or to pay over the same when directed by them, to their agents, or his successor in office, will constitute a breach of the bond. ” [3.] It is true, that the Act of 1843 allows no compensation as a consideration to the person giving such bond. But the seal imports a consideration; and if the obligees had pleaded a want of consideration, such plea would have been held bad upon demurrer. Rutherford vs. The Ex. Com. Bap. Con. &c. 9 Ga. R. 54. [506] [4.] In the argument, our attention was called to the fact, that James A. II. Macon, the principal in this bond, had departed this life since the commencement of the suit. This fact cannot influence the direction which we feel it our duty to give this case. It comes to us upon demurrer to the sufficiency of the cause of action only, and before it has gone to final trial. If before that trial, as the action survives against the other defendants, the death of this co-defendant be suggested upon the record, by the law of force in our State (8 and 9 Wm. III. ch. 9. §8, Schley’s Dig. 290. Hotchk. 549) the suit may proceed against the surviving defendants. Let the judgment be reversed.