Governor v. Wiley

COLLIER, C. J. In proceeding on a penal bond, the plaintiff may declare for the penalty; or under the act of 1824, “regulating proceedings on penal bonds,” he may set out the condition, either in whole or in part, and assign one or more breaches; or if the defendant does not by his plea tender an issue, he may assign breaches in his replication; and where judgment is rendered for the plaintiff on demurrer, or by default, if he has not previously assigned breaches, he may suggest them on the roll. If the declaration be substantially defective in the assignment of breaches, the plaintiff will not be allowed to strike them out after demurrer, on the ground that the declaration is good without them. Watts’s ex’rs v. Sheppard, 2 Ala. Rep. 425, and cases there cited; Lardler v. The State, 2 Har. & G. Rep. 277. It has been held, that whore the plaintiff in an action of covenant speci — 178 — fies breaches in his declaration, he cannot recover for other breaches not particularly stated. Finley v. Bœhm, 3 G. & Johns. Rep. 42. So, where the plaintiff declares on the penalty of a bond, and the defendant craves oyer and pleads conditions performed, the plaintiff may assign breaches in his replication; but if he assigns special breaches in his declaration, he cannot countervail the plea of defendant by assigning others. Gentry v. Barnett, 6 Monr. Rep. 114; Dixon v. The United States, 1 Brockenb. Rep. 177. It is stated as a general rule, that an entire replication bad in part, is bad for the whole, but this rule applies only where the matter objected to, is material. 2 Saund. on Pl. and Ev. 775, and citations there. Although the plaintiff or defendant may fortify the declaration or plea by the replication or rejoinder, yet it is not allowable for a party to depart from the case or defence which he has first made, and thus have recourse to another. This is what is technically called a departure in pleading. Id.; U. States v. Morris, Paine’s Rep, 209; Hallett v. Slidell, 11 Johns. Rep. 56; Pollard v. Taylor, 2 Bibb’s Rep. 234; 5 Ala. Rep. 341; Tarleton v. Wells, 2 N. Hamp. Rep. 306; 1 Chit. Plead. 618. Where, in a declaration upon a penal bond, conditioned to perform some duty, several breaches are assigned, if one of them be good, a demurrer to all of them will not be sustained, though the others be bad. The correct practice in such case is to demur severally to each breach. Botts et al. v. Bridges, 4 Ala. Rep. 274; Harmon v. Thompson, 2 How. Rep. (Miss.) 808; McCoy v. Hill, 2 Litt. Rep. 372; Taylor v. Pope, 3 Ala. Rep. 190. And the law is the same where the breaches in such case are assigned in the replication. Martin et al. v. Williams, 13 Johns. R. 264. See also Dowsland v. Thompson et al. 2 Bla. Rep. 910; Owen v. Henderson, 7 Ala. Rep. 641. In the case before us, the declaration contains two counts, the first on the penalty merely, while the second sets out the condition of the bond, alledges four several breaches, which substantially affirm that the defendant Wiley, as register, failed to take security, or sufficient security, (according to the order of the judge for that purpose,) upon issuing the injunction, in consequence whereof the beneficial plaintiff is — 179 — unable to obtain satisfaction of his judgment. The replication to the plea of covenants performed, states two breaches; the first of which alledges that N. B. Cloud, upon a bill describing a judgment for $350, and praying that the same might be enjoined, obtained an order for an injunction to issue according to the prayer of the bill; and that the register so unskilfully and negligently issued the same, that he enjoined the sheriff from collecting a fi.fa. issued on the judgment for $452 66 — since which time Cloud has become insolvent, and the judgment last mentioned cannot be satisfied, &c. The second breach is substantially the same as those embraced in the second count of the declaration. It is provided by the act of 1824, that in all actions in any court of record, upon any bond, or on any penal sum, for nonperformance of any covenants or agreements contained in any indenture, deed or writing, the plaintiff may assign as many breaches as he may think fit, and the jury shall assess damages for such as he shall prove, &c. Each count in the declaration is regarded as a distinct and independent cause of action, and although it may not be allowable for a plaintiff who has assigned breaches in his declaration according to the statute, to assign others in a replication to the plea of conditions performed, yet this rule will not apply where the declaration contains several counts, one of which is on the penalty only. In such case, the count on the penalty is not demurrable, yet upon the coming in of the plea, it devolves upon the plaintiff to aid it by showing a breach, which can only be done by a replication assigning it. The replication, then, as it respects the first count, is not bad, because it assigns a breach other than those stated in the second. In respect to the first breach assigned in the replication the question is, whether it shows such a breach of the official bond of the register as entitles the plaintiff to an action against him and his sureties. The act of 1839, “to authorize and establish separate courts of chancery,” provides that the registers before they enter upon the discharge of their duties, shall give bond with securities in the sum of ten thousand dollars, payable to the governor, &c., “for the faithful discharge of their respective offices.” Clay’s Dig. 345, § 7, — 180 — By the terms “ faithful discharge,” in the connection in which •they are used, we are to understand a stipulation that the register shall correctly, with exactness and according to law, perform his official duties; and if he does an act under color .of his office, and as an officer, so inaccurately and imperfectly as to occasion a loss to a party to the proceeding, this is a breach of the condition of his bond. The breach alledged is, that the register issued an injunction to restrain the collection of a fieri facias, without an authority for that purpose, and that the plaintiff, in consequence thereof, was unable to obtain satisfaction of his judgment — the defendant, while the injunction was operative, becoming insolvent. This breach is well assigned, and is a direct denial that the register faithfully discharged the duties of his office. In the Governor, use, &c. v. Hancock & Harris, 2 Ala. R. 728, which was action on a sheriff’s bond against his sureties, this court said, “ we will not say that the sureties of a sheriff are not liable in some cases of malfeasance,; but in such case we think the malfeasance must include a misfeasance also : as, for instance, if the sheriff should wantonly destroy property levied on by him, this would be a tortious act, but .there would likewise be a tortious omission of his duty, which is, to keep the property safely.” It has been held, that the •official acts of the clerk of the circuit court, embrace every act that the law requires him to perform in virtue of his office; .the issuing of a writ of error is an official act, and so is his taking bond with two or more sufficient sureties upon issuing such writ: if therefore, he issues a writ of error with superse-deas, without taking from the defendant in the judgment a bond according to law, with two or more sufficient sureties, he will -be liable on his official bond. In such case the bond may be sued on by any person injured, and a recovery be had to the amount of the penalty thereof. McNutt, Governor, v. Livingston, 7 S. & Mar. Rep. 641. These citations, if they .do not directly sanction, certainly strengthen the conclusion we have expressed as to the sufficiency of the first breach assigned in the replication. Upon this point we have but to .add, that the demurrer was improperly sustained. It was proved at the trial, that the sheriff to whom the injunction was addressed, had no other execution in his hands — 181 — ill favor of Hall against Cloud, than that described in the declaration. The record which was offered, as an injunction, does not recite that it issued under an order, but is in terms a mandate from the register himself to the sheriff, to desist from all further proceedings on an execution in his hands in favor of Hall against Cloud, until further order of chancery, •which has taken the matter in controversy under its consideration. By an act passed in December, 1841, the registers in Chancery were authorized to grant writs of injunotion and ne exeat, and all special orders which it would be competent for the chancellor to grant, in vacation. But -a statute of February, 1843, declares that it shall not be lawful for registers in chancery to grant or dissolve injunctions. At the time the injunction in question issued, an order of a chancellor or judge, was necessary to authorize it; and we think it should appear on the face of the process, either by a •recital of the fact, or necessary inference, that it issued under proper authority. The register does not even designate the precept an injunction, or inform the sheriff in what manner the court of chancery had taken “ the matter in controversy under its consideration.” For any thing appearing to the contrary, it might have been by an original bill, which did not arrest the action of the execution. The paper then addressed to the sheriff was the mandate of the register, if its terms are to be regarded as indicative of its character, without any thing to show it was issued under competent authority ; and thus considered, it was a nugatory act, to which obedience could not have been coerced. Again: Should not an injunction describe an execution upon which it operates with such particularity, that it may be identified by a comparison of the one with the other, so that the officer to whom it is addressed may be chargeable for a contempt if he fails to yield obedience to it? We will not affirm that such is the law ; but it is clear that the process in question is defective for the generality of its terms. Here the only description of the execution is, the names of •the parties to it, and a statement that it was in the sheriff’s ¡hands. If he had several executions between the same par — 182 — ties, it would have been impossible for him to know which was intended to have been affected by the injunction, and thefore might have disregarded the injunction as to all of them. Does the fact that he happened to have but one execution, give to the injunction vitality and force ? However these questions may be answered, we are of opinion, for the reason first stated, that the process was inoperative as an injunction of the execution, and should not have been obeyed by the sheriff. This being its character, the plaintiff could not legally have been prejudiced by it, and the defendants are not liable for an irregular act of the register, upon his official bond. Whether the register is individually chargeable in any form of action, is a question not presented by the record, and we have consequently not considered it. The view we have taken will suffice as a guide to further proceedings, and have but to add, that the judgment is reversed, and the cause remanded.