11 S.C. 392 | S.C. | 1879
The opinion of the court was delivered by
The action is against the sheriff and his sureties on his official bond, for failure to pay money received on executions. On the trial, which resulted in a verdict for plaintiff, the court refused certain requests to charge, and this refusal is the only ground of exception to the verdict. The first request involved the proposition that no suit can be maintained upon the sheriff’s official bond without a previous order of the court. This objection is not well taken. The statute {Qm. Stat. 215, §11,) provides that “ the bond of any public officer in this state may, at all times, be sued on by the public, any corporation or private person aggrieved by any misconduct of any such public officer.” The sheriff, in the execution of ordinary process, acts as a public officer, and is thus within the provisions of the -statute. The principle that the courts will not permit one acting under their immediate orders and supervision to be sued for such action, independently of a due control over such proceedings, is inapplicable to such a case. If the objection had been valid it could not have been taken by way of charge. - The time to raise the question would have been before the defendant .had answered, as it involved the question of his obligation to answer. If, however, he submits to answer, the court would presume an order when necessaiy and not permit that fact to be put in issue in the cause.
It is objected that a recovery having been had against the sheriff for the misconduct alleged, he cannot be joined in the action on the official bond. Even if pleaded properly, which it was not, this is not a defence. The bond is a different cause of action from that on which the judgment was recovered. The bond is alleged as a joint bond, and the sheriff, as one of the joint' obligors, was a proper party.
The next proposition is, that the plaintiff cannot recover upon an allegation of judgment recovered against Henry S. Cason alone, and that the act of Henry S. Cason should be charged, which rendered his sureties liable. The last part of this propo
The fifth and sixth requests to charge relate to matter waived by failure to demur or answer.
An objection was discussed in the argument on the ground
The appeal must be dismissed.
Appeal dismissed.