Armstrong v. Pugh

19 Ala. 209 | Ala. | 1851

DARGAN, C. J.

This was a Armstrong, and his securities upon i the County Court of Pike, to recover by him as clerk upon a judgment rendered in said County Court* in favor of the plaintiff, against John Lindsey. The securities pleaded, that Wilkinson, one of them, thirty days before the liability of their principal accrued, gave notice to the judge of the County Court of said county, to cause Armstrong, the clerk, to renew his official bond. To this plea the plaintiff demurred, and the demurrer was sustained by the court.

It is made the duty of the respective1 county judges, whenever application is made to them by a security of any clerk, sheriff, or other county officer, to issue a citation to such officer, to appear before them on some day named therein, not less than ten, nor more than fifteen, and renew his bond, with good and sufficient securities, for the faithful performance of the duties of his office. And upon the execution of such new bond, the security or securities making the application, shall bo discharged from the obligation of the bond previously entered into by them. But such discharge will not relieve them from the liabilities which had been incurred before that time. — Clay’s Big. 5-34, § 13-14. Under this statute, it is clear that the liability of a security must continue until the officer gives the new bond in accordance with the order of the County Court, or until the office shall be declared vacant for a failure to do so, which may be done under the 15th section of the same act. That a security makes application to the judge of the County Court does not discharge him, but his liability continues for the official acts of the officer, until the new bond is given. The security perhaps can compel the county judge to issue the citation by mandamus, and his refusal may give the security making the application a cause of action against him; these however, are not questions before us. The only question is, whether the application of a security to the county judge to require a new bond from the officer, will discharge him from liability for the subsequent defaults of the officer. It is certain that it will not; consequently, tlio demurrer was property sustained.

Let the judgment be affirmed.