66 Ga. 492 | Ga. | 1881
This suit is brought on a sheriff’s bond against the administrator of the sheriff and the sureties on his official bond. The breach set out in. the declaration, is the failure of the sheriff to pay over certain moneys collected by him on a certain fi. fa. in his hands. That the money was collected by the sheriff is not denied, and that on a money rule against him to pay it over, a rule absolute and attachment was issued and still it was not paid by the sheriff, are also admitted facts.
That the sheriff is liable is therefore clear, and that fact is not contested. The sureties, however, defend on the ground that the execution, by virtue of which the money was collected is a void process, and that they are not bound by the rule absolute against the sheriff, because they were not parties to it, and were not heard thereon ; and the error assigned is that the court rejected the decree, bill, etc., on which the execution which raised the money issued, as testimony, — holding that the sureties were bound by the rule absolute, and that the testimony offered did not show the invalidity of the execution.
The question here is, what effect has this rule absolute on the sheriff and on his sureties. That the sheriff is concluded by it on a suit on the bond is clear. It was so held in the leading case in our reports — 7 Ga., 445 — and there, too, it was held that the sureties could “set up any defense which the sheriff himself could in answer to the original .rule which was taken against him.” So it would seem from that case that the sureties could only set up such a defense as the sheriff could have done in answer to the rule. Could the sheriff, with the money in his pocket collected under it, have set up the invalidity of the process by which it was brought into court ? Certainly not. The tax collector was not allowed to do this in the case in 56 Ga., 290; and to rule that the sheriff could, would seem to outrage all reason and principle as well as the clear public policy to allovv no agent of the public to dispute the legality of the means by which he collects money for the public, or for any citizen virtute officii.
In the case of Taylor et al. vs. Johnston, governor, for the use, etc., 17 Ga., 521, Judge Lumpkin evidently thought sureties as well as sheriff were concluded as to the breach of the bond by the rule absolute, for he says : “Is not his disobedience to the rule absolute such ‘ official misconduct’ as constitutes a breach of the bond ? And is not the judgment against him conclusive against the sureties and everybody else of that fact?”
But in this case it is not necessary to go so far. It is
It was the duty of the plaintiff in error to set it out in his bill of exceptions and show thereby the error. It was a bill of direction and interpleader, it seems from what is said about it, and the issue was whether this legacy and another abated, and the decree is that there was no.abatement.
It was equivalent to a money decree for that legacy. The decree, too, is that the specific property be sold to pay it and other liabilities, but it is not'that the executors sell.
In every view of the case we see no plain path which the law makes out for us but to affirm the judgment, and require this sheriff and these sureties to pay over the money which the rule absolute required him to pay, and the neglect and refusal to pay which under that rule was a breach of his and their obligation.
Judgment affirmed.