Tute, Fay & Mowrey v. James

The opinion of the court was delivered by Ross, J. This is scire facias upon a bond of recognizance, taken to - the treasurer of Orleans county, entered into by the defendants as sureties for James A. Kendall, sheriff of the county of Orleans, and conditioned for the faithful performance of the duties of the office of sheriff, by the said Kendall. The plaintiffs allege a breach of said bond, to their damage; and state that said Kendall had deceased before the bringing of this suit; that administration had been taken upon his estate ; that they had presented their claim for damages to the commissioners on said estate, who had never made any return of their commission, or made any allowance or disallowance of their claim; that the whole of said Kendall’s estate did not amount to $300, and had been wholly expended in supporting the widow and minor children of said Kendall; and that there is not, and never had been, [63] any estate of said Kendall, out of which any part of the plaintiffs’ claim can be, or ever could have been, collected or secured. These allegations are all admitted by the demurrer of the defendants. The question presented is, whether these admitted facts bring the case within the provisions of § 73, ch. 30, of the Gen. Sts. By that section, the sureties in the bond of recognizance of a sheriff may be prosecuted for official misconduct, neglect, or default of the sheriff, by an action of debt or scire facias, brought directly upon the recognizance, without first bringing a suit against the sheriff, whenever service of process cannot be made upon the sheriff “ by reason of the removal of such person from the state, leaving no known attachable property therein.” The general provisions of the statute are to the effect that a party, before he can be allowed to proceed against the sureties of a sheriff on his recognizance, must obtain judgment against the sheriff, take out execution against him, and have the same returned unsatisfied. Section 73 seems to have been passed, to furnish a remedy for a party injured by the official misconduct, default, or neglect, of a sheriff who had at the time of bringing the suit, removed from the jurisdiction of the court, and left no known attachable property in the state, by the attachment of which, service could be made, and jurisdiction, to the extent of the property at least, be obtained against the sheriff. We think “ removal ” in this section, is used in the ordinary acceptation of that word, and means the change of the domicil of the sheriff, while in life, from this to some other state. The departure of one’s soul from his body, which takes place at death, is not a removal of “ such person” from the state. The person consists of both soul and body, and “ the removal of such person,” means, the removal of the soul and body in life, and not the withdrawal of the former from the latter merely. Attachable property, spoken of in this section, is predicable only of a living person. A deceased person neither has nor possesses property, but leaves to others an estate. The ordinary meaning of all the language of the operative clause of the section, is opposed to the construction claimed for the plaintiffs. The plaintiffs urge that we must place their construction upon this section, or there is no statutory provision by which a [64] party injured by the official misconduct, default, or neglect of a sheriff who has deceased, can obtain satisfaction from his sureties in the recognizance. They say, that, although they might, through the commissioners on the estate of a deceased sheriff, and the probate court, obtain judgment for damages sustained from his official misconduct, default, or neglect, they could not, because the probate court issues no executions, have execution on such judgment, and have the same-returned unsatisfied, so as to comply with section 69 of the same chapter. It is true, a party injured cannot, in the case of a deceased sheriff, comply with the letter of section 69 ; but he can comply with the intention and spirit of that section. Ho can have the extent of the liability of the sheriff’s estate to respond to him in damages, determined. He can, by an order of distribution of that estate, obtain all the satisfaction of such damages, which the law affords from the sheriff’s estate. Satisfaction obtained, in whole or in part, by an order of distribution by the probate court, is as effectual for the relief of the sureties, as that obtained upon an execution. The purport of section 69 is, to compel a party claiming damages from the official misconduct, default, or neglect of a sheriff, to establish, in some proper form, the extent of the liability of the sheriff, and to obtain all the pecuniary satisfaction he can, of the damages thus determined, from the sheriff, before he can make use of the remedy furnished by that section against the sureties in the recognizance. We think the spirit and intention of the section are observed when such liability and satisfaction, in the case of a deceased sheriff, are obtained through the instrumentality of the probate court, and that the plaintiffs’ is not a casus omissus, but was intended to be, and is, in effect, provided for by section 69. The fact that the plaintiffs would obtain no satisfaction of their damages by pursuing the estate of Kendall, cannot excuse them from complying with the statute. If a party should obtain satisfaction from the property or estate of the sheriff, he would not need the remedy furnished him by that section against the sureties in the recognizance. We think there was no error in the pro forma judgment of the county court for the defendants, and that judgment is affirmed.