39 Md. 177 | Md. | 1874
delivered the opinion of the Court.
Suit was brought in this case on the 3d of December, 1859, on the official bond of William Logan, late sheriff of Washington County, executed on the 5th of Decern
In support of this position, counsel for the appellants rely solely upon the 10th section of the Act of 1794, ch. 54, which provides, “that in any suit which shall or may hereafter be .ordered or directed on any administration, testamentary, inspector’s, collector’s, or sheriff’s bond, the clerk shall, and he is hereby directed before the issuing of the writ to endorse thereon the name or names of the party or parties at whose instance, and for whose use the said suit was instituted; and in case the said action shall or may be struck off', discontinued, or non prossed, or in case there be a judgment on verdict in favor of the defendant, the party or parties at whose instance the action was instituted, shall bo answerable for the legal costs of suit, and may be proceeded against by attachment,’’ &c. The argument is that this endorsement thus required to be made by the clerk, is a con
In our judgment this reasoning proceeds upon an erroneous view of the purpose and effect of the legislative enactment, cited in its support, and of the nature and character of suits upon official bonds in which the State is obligee. The true character of such actions is well stated in the case of State vs. Dorsey, et al., 3 G. & J., 75. That was a suit upon a collector’s bond in the name of the State for the use of the Levy Court of Baltimore County. After suit brought the Levy Court became extinct and another body politic and corporate, was created in its place. The defendants interposed this as an objection to the further prosecution of the suit, by pleas in abatement, puis darrien continuance. Upon demurrer to these pleas the question arose whether the action could be further prosecuted, and on that point the Court say: “ When suit is brought on a private bond for the use of an individual, the individual for whose use it is entered, is not the legal plaintiff; the use is only entered for the protection of his equitable interest, and if he dies pending the suit, his death is not the subject of a plea, nor is there for the purposes of the suit, any necessity for suggesting his death, but the suit goes on as if he were still living, or the use had never been entered.
The object of the provision requiring the clerk to make this endorsement was simply to have some person designated and made responsible for costs, including the defendant’s costs in case the suit should in any manner terminate in his favor. The omission or neglect of the
Nor can we perceive how' the security intended for the defendants by this provision of the Act of 1794 has not been afforded them. The original writ was properly endorsed, and so were all the renewals up to the last, and it appears by the amended docket entries respecting that writ that Nesbitt’s death was suggested and his administrators asserting the same right, had leave to and did appear, and had the case entered on the docket “at their
It was admitted that Nesbitt held his office as clerk in 1853 and 1854, and up to the time of his death, and that Logan was elected sheriff in the fall of 1853 for twoyears and qualified and served from that time to the fall of 1855. By granting the defendants’ second prayer the Court instructed the jury that the bond sued on was not responsible for any fees which accrued to Nesbitt, as clerk, unless said fees were written out in words at full length and were placed in the hands of Logan, as sheriff, between the first days of January and March, 1855. By their third and fourth prayers they assert the additional proposition that this bond was not responsible for any fees except such as accrued to Nesbitf, as clerk, after the 1st of March, 1854. This proposition is based upon the first clause of the 11th section of the Act of 1779, chapter 25, “that no officer herein before mentioned, under the penalty of two hundred pounds for every offence, shall send out his fees on execution but once in every year between the first day of January and the first day of March.” We agree with the appellants’ counsel that this clause was not repealed by the Act of 1822, chapter 219, as intimated by Judge Dorsey, in his edition of the laws, 1 Dorsey’s Laws, 154. It remained in force, and is embodied in the Code, (Art. 38, sec. 2,)' with slight modifications in these words: “No officer, under the penalty of five hundred dollars, shall send out his fees on execution more thorn once in every year, between the first day of January and the first day of May.” But we do
The plaintiffs’ first prayer is to the effect, that if the jury find that after the execution and approval of the bond sued on, Logan admitted and acknowledged to the witness G-arlinger, that Nesbitt had placed in his hands for collection, and that he had received for collection, as sheriff, Nesbitt’s fee-bills for the year 1854, then such admission and acknowledgment is evidence in the absence of proof to the contrary from which the jury may infer that such fees were received by the said Logan, at the proper time and in the manner required by law. In our opinion, this instruction was properly granted. The sheriff and clerk were both public officers, bound by oath to the proper discharge of official duties.
The law made it the duty of the sheriff to collect the fees of the clerk lawfully placed in his hands for that
The defendants’ sixth prayer asserts, that the facts detailed by the witness Gfarlinger, are not sufficient to found a verdict for the plaintiff thereon, because they show no specified amount of fees placed in the hands of Logan, as sheriff, and furnished no sufficient data, by or upon which the amount can he ascertained by them. This, even if free from other objections, goes too far. It denies that this testimony was sufficient to warrant the jury in finding a verdict for any amount in favor of the plaintiff. It overlooks the fact that Garlinger proved the actual receipt by Logan of the specified sum of $80 and some cents, on a lee-bill for 1854, due Nesbitt as clerk. This with the inferences allowed under the plaintiff’s first prayer, furnished the jury with data, sufficiently definite to sustain a verdict for at least that sum,
The defendants’ fifth prayer was granted, and they have abandoned their second exception. . No other questions are presented by this appeal, and it follows the judgment must be affirmed.
Judgment affirmed.