Beall v. Cochran

18 Ga. 38 | Ga. | 1855

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] Ought the sureties to pay the money recovered on the first judgment ? and because of that judgment ? To state the case free from all embarrassment growing out of the Act of 1839, (Cobb's Dig. 500,) authorizing one of several parties, plaintiff or defendant, to appeal, and which urgently demands legislative explanation and amendment, as was made manifest in Stell vs. Glass, (1 Kelly, 475); and Allison vs. Chaffin, and another, (8 Ga. R. 330,) and other decisions of this Court — suppose the suit had been brought separately in this case, against the Sheriff and each of the sureites — and this could have been done, the bond being joint and several — and suppose judgments had been recovered against each of the sureties on account of the alleged misconduct of the principal ; and then, on the trial against the Sheriff, he should have been acquitted of all delinquency — is it possible that Equity would not relieve the sureties by injunction, against the payment of the judgments against them ? If it would not, there would, unquestionably, be a most signal and lamentable failure of justice in such a case. Sureties made to respond for the default of their principal, of which he was never guilty! They mulcted, perhaps, in the entire penalty of the bond, and he discharged from all liability, leaving them, of course, without the right of recourse over against their principal for contribution!

It is said Courts make precedents. We disclaim all srich pretension. It is .nevertheless true, that all precedents had a beginning; and if none can be found for this case, it is because, under our peculiar Statutes regulating the relation of principal and surety, and the rights of the latter, resulting from that relationship, after as well as before judgment, the case, itself, is one sui generis.

Whether the Act of 1799 authorized a suit against the sureties on a Sheriff’s bond, for any default or misconduct in his office, anterior to a recovery against the principal, I will not discuss. Certain it is, that no action can be brought .until an order be passed for that purpose, on the application of the party aggrieved. The showing for this purpose, if not required to bo made on affidavit, should bo more special than it has been. It would save much trouble and expense to sureties — it might have prevented this case.