Treasurer of the State v. Holmes

The opinionof a majority of the Court was delivered by Prentiss, J.As the defendant’s plea in bar in unquestiona- bly bad, and has not been relied upon at all, the only question to be decided, is, whether the matter contained in the writ of scire facias is sufficient to entitle the plaintiff to maintain it. Neither the treasurer of the state, nor the state itself, being a party to the recognizance, it is very clear, that the writ cannot be supported, unless the case comes within the first section of the statute, made in addition to and amendment of the act, con- stituting the Supreme Court of judicature and county courts, de- fining their powers, and regulating judicial proceedings. (Comp, slat. ch. 7,p. 101.) The statute provides, “that when any sher- iff or high bailiff hath been, or shall be sued for any neglect, de- fault, or unjaithfulness in his office and duty, and judgment hath been or shall be rendered against such sheriff or high bailiff, for any such neglect, default, or unfaithfulness, as aforesaid, and exe- cution shall have issued thereon, and a non est inventus shall be le- gally made against such sheriff or high bailiff, on such execution ; and also when any sheriff or high bailiff shall have been, or may be committed to jail, on any execution, issued on such judgment as ajoresaid, that then, and in every such cáse, the person or persons so recovering such judgment, may in his, her or their own name and right, sue out a writ of scire facias against any or all of such sheriff’s or high-bailiff’s bondsmen or sureties, returnable, &c. and unless satisfactory cause be shown to the contrary, such judg- ment had and rendered against such sheriff or high-bailiff, shall be affirmed against such bondsmen, surety or sureties, with legal 51 interest and additional costs.” By the terms of the statute, to entitle a party to the remedy by scire facias, against the sureties of the the sheriff, there must have been a suit against the sheriff for his neglect or default, a judgment therein ascertaining his neglect or default and the damages accruing therefrom, and an execution issued on such judgment, with a return of non est inven-tus on such execution, or a commitment of the sheriff to jail thereon, in such case, the party so recovering such judgment, may, in his own name and right, sue out a scire facias against the sureties of the sheriff, and such judgment so had and rendered against the sheriff may be affirmed against the sureties. By the language of the statute, the judgment which entitles the party to the writ of scire facias, and which is to be affirmed against the sureties, is a judgment rendered in a court of record, in the course of a suit, founded on the neglect or default of the sheriff The second section, in speaking of it, uses the emphatick words, “rendered by any court in this stale,'’'’ In this case, there has been no suit against the sheriff for his neglect or default, no judgment against him, ascertaining his liability and the amount of damages, nor any execution issued on any such judgment. The extent issued by the treasurer against him, and on which he was committed to jail, may be in the nature of an execution, but it is not an execution issued on a judgment, rendered or recovered against him, in a suit for his neglect or default. The judgment to be affirmed, must be one so rendered or recovered, and the plaintiff never having recovered any such judgment, there is no such judgment against the sheriff, which can be affirmed against the sureties. It is impossible, therefore, to bring the case within the terms of the statute. It has been argued by the plaintiff’s counsel, that if the case is not within the letter of the statute, yet it is within the equity of it, and that the object of the Legislature being to provide ample security for the faithful performance of the duties of the sheriff, and to give to every party injured by his neglect of duty an adequate and efficient remedy, the Court ought to give to the statute such a construction as will carry into effect this object. But as the plaintiff is not a party to the recognizance, the statute must be considered as creating the right as well as the remedy against the sureties, and having prescribed specifically the mode in which the remedy is to be pursued, that mode must be followed, and the Court are not at liberty to adopt any other. Such appears to have been the principle adopted in the construction of a statute on the same subject, in New-York. It is there enacted, “that in case of any recovery, by any party aggrieved, against any sheriff, for any default or misconduct in his office, it shall be lawful for the justices of the Supreme Court, upon motion in open court, to order the bond so given by the sheriff to be put in suit against such sheriff or his sureties, or any or all of them.” In the People vs. Speaker, 18 Johns. R. 390, it was determined, that to entitle the party aggrieved by the default of the sheriff, to have the bond put in suit against the 52 sureties, under the statute, he must have previously recovered a judgment against the sheriff, in an action against him, grounded directly on such default, and that it was not enough that he had proceeded by attachment against the sheriff for his default, and that a judgment had been recovered against the sheriff, on the recognizance given by him for his appearance, on the return of the attachment. If the state, or the treasurer of the state, could have maintained an action on the case against the sheriff for his neglect of duty, a judgment might in that way have been recovered against the sheriff, which would have brought the case within the statute, and given a right to the remedy by scire fa-cias against the sureties. But if this could not have been done, and the treasurer was bound to pursue the course directed by the act, regulating the collection and payment of taxes, and that course is the only one which can be pursued in such case, it must be supposed, that the legislature considered the remedy thus given, altogether as ample and efficient, as the security of the publick revenue, and the nature and exigencies of the case, required. This remedy is an extent against the sheriff, directed to the high-bailiff; and if the high-bailiff omits or neglects to discharge his duty in executing the extent, he forfeits double the sum contained in such extent, to be recovered by the treasurer, in an action of debt, brought on the statute, against the high-bailiff, or against him and his sureties. If the sheriff is committed to jail on the extent, and escapes, the keeper of the jail is made answerable, unless he escapes through the insufficiency of the jail, in which case the county is accountable, and has its remedy over against the sheriff and his sureties. (Comp, stat. ch. 49, sec. 11.) It is true, if the sheriff remains in jail without committing any escape, no remedy is given ; but if the Legislature have not seen fit to furnish a remedy in such an event, it does not belong to the Court to provide one. Except in this instance, the remedy appears to be full and complete. In the present case, if the sheriff, as is said, was permitted to escape, the remedy by the statute was direct against the keeper of the jail. But if neither that nor any other remedy existed, it would not affect the present question. The settled principle with regard to sureties is, that they are not to be made liable, unless the case is brought within the very terms and scope of their undertaking. This principle requires, that a strict construction should be given to the statute in this case, in favour of the sureties, and by it, they can be made liable only to the extent, and in the manner prescribed by the statute.- In the case just cited, Spencer, Ch. J. said, that they were bound to give a construction to the statute on this principle, and that it forbid an equitable or enlarged construction: The case before us is manifestly neither within the words or meaning of the statute, and the defendants are entitled to judgment.