Smith v. Stapler

Trippe, Judge. This was a suit against the sureties on the ordinary’s bond, that officer being dead. All facts necessary to the full understanding of the case are given by the reporter. Was the action maintainable? We think not; and the court did not err in dismissing it. Section 321, Code, provides that ordinaries “must give bond and security in the sum.of $1,000 00, for the faithful discharge of their duties as clerks of the ordinary.” By section 341 they are, by virtue of their offices, clerks of their own courts; “but they may, at their own expense,. appoint one or more clerks, for whose conduct they are responsible.” Taking these two sections together, it is evident that the bond required by the first does not make sureties thereto liable to a bidder under proposals for building a bridge, because the ordinary did not award the contract to him, although he might be the lowest bidder. The bond was not required to cover any such liability, any more than it was to cover any other erroneous act of the ordinary. If a bidder in such a case is entitled to the contract, and the ordinary fails or refuses to so award it, he is not without remedy for the enforcement of his rights. A prohibition might stop an illegal contract with another, or a mandamus might compel the ordinary to execute a legal one under proper circumstances. Certain it is that the bond required by section 321 does not bind the sureties to it for all illegal or erroneous actsjof an officer invested with such high authority as the ordinary. Other grounds might be given to sustain the judgment in this case, but it is useless to state them.' Judgment affirmed.