Heidenheimer Bros. v. Brent

59 Tex. 533 | Tex. | 1883

West, Associate Justice.—

The suit was dismissed as to the sheriff, and prosecuted against his sureties alone. The special exceptions of appellees filed, both to the original and amended pleadings of appellants, point to the fact thj„t these pleadings fail to show that the money sought to be recovered of them, as sureties of the sheriff, ever came into his hands by virtue of any process or precept lawfully directed to him. They object to the pleadings of the appellants, because they do not show that the money sought to be recovered was ever received by their principal in his official capacity, and by virtue of his office as sheriff, and in the due and usual discharge of his duty as such officer.

These exceptions are well taken. Undér the facts disclosed, it is not clearly and specifically averred, taking all the allegations together, that the appellants did not consent to the private and unofficial disposition by sale of the attached goods that the. sheriff is alleged to have made. On the contrary, the fact that the appellants are now seeking in this action to recover a portion of the proceeds of that sale, would seem to indicate that they had originally authorized it, or afterwards ratified it.

But whether that be so or not is not material; the sale was not made by virtue of any order, writ or process of the court, or by its authority. Under the terms of the bond, the appellees cannot be held responsible.

The liabilities of sureties are striotissimi juris, and cannot be extended by construction. To charge the sureties on a sheriff’s bond, the act complained of must not only be one which he might rightfully do ás sheriff, but which must be actually done by him as sheriff, under a claim of right to do the act as such officer. It must be a violation of the conditions of his bond.

The mere fact that the sheriff had the money in question in his possession is not enough to bind his sureties. It must also appear that it came into the hands of the sheriff by virtue of some process or lawful authority, and that he then failed to pay it over. Hamilton v. Ward, 4 Tex., 356; State v. Long, 8 Iredell (Law), N. C., 415; Schloss v. White, 16 Cal., 65; People v. Pennock, 60 N. Y., 421.

The facts on which this action is based are set forth in the pleadings, and are not such as to make the sureties of the sheriff liable.

The judgment is affirmed.

Affirmed.

[Opinion delivered June 5, 1883.]