Wyche v. Myrick

14 Ga. 584 | Ga. | 1854

By the Court.

Starnes, J.,

delivering the opinion.

[X.] .Lt js first insisted, in this case, that the order of the Inferior Court, establishing the record, in the case of Matthew JL Myrick vs. Sarah Estes, which had been destroyed by the burning of the court-house, was no evidence against Wyche, the security; inasmuch as the judgment was void, there being no process attached to the writ, and no verdict or confession of judgment.

We find by that order, that the original writ, judgment and execution, are therein recognized as having been lost, and a a copy thereof was thereby established. If it were necessary, we think that in such a case, it might very properly be intended, that by original writ, petition and process were meant, as they usually go together in our practice; and thus, the process might bo shown to have been established.

Biit we place the point upon another and more satisfactory ground. By the Act organizing this Court, we are required “ to hear and determine upon matters contained in the transcript of the record, and not otherwise”. On looking to that source, upon which we are thus made to depend for the facts, we find that the order of the Court to which wo have referred, is preceded by a petition, process and confession of judgment, judgment, fi.fa., levies, &c., and the Clerk who sends this record to us, certifies that it contains' a true exemplification from the record of his Court in the case of Matthew II. Myrick vs. Sarah Estes. Wc must now' receive the record, as showing that process was issued, and also confession of judgment. And ás to these, the point is thus settled.

It is true that no return of service, of the petition and process, in that case, appears, by the record, to have been made. But this defect is cured, after confession of judgment, (which is tantamount to a verdict.) (4 Anne, eh. 16, sec. 2. 1 Ch. Pl. 723. Tidd. Pr. 927.) And especially by virtue of the Statutes of Jeofails. (Tidd. Pr. 923. Wilson vs. Nichols, 16 Shep. 566. .Smith and another vs. Taylor and Wife. 11 Ga. 20.

[2.] The next position assumed by plaintiff in error is, that the order absolute against the Sheriff, (Lockett,) was not proper evidence to bind Wyche, the security,' because it rested on an admission of the principal, after his term of office had expired ; and no admission made by such principal, after the relation between them, of principal and security has terminated, should be allowed to bind the security.

The principle stated in the latter part of this proposition, may be conceded, as a general rule, to be correct; but it is not applicable to this case, for two reasons: 1. The rule was not, in point of fact, made absolute by virtue of the Sheriff’s admission, but because of his failure to appear and show cause for what otherwise appeared official delinquency, occurring while he was regularly in office, and the relation of principal and security, was confessedly subsisting between himself and Wyche. 2. By our Law a responsibility of this officer t<i the “ order and rule of the Court”, as to all matters pertaining to the discharge of his duties while in office, continues after the term of his office has expired. We are inclined, therefore, to hold that the relation of principal and surety continues between the Sheriff and his securities, in the case of such a proceeding against him, quoad that transaction.

[3.] The liability of the Sheriff for 20 per cent, on the amount collected by him, was not created by the rule absolute, as supposed, and is not, therefore, in the nature of a penalty, (as for contempt,) for which the surety is not responsible.

The liability in this case has been fixed by a proceeding, under the Act of Bee. 11th, 1841. That Act declares, “ that from and immediately after the passage of this Act, that whenever a rule absolute shall be obtained against any Sheriff, Coroner, Justice of the Peace, Constable, Clerk of the Superior or Inferior Court, or Attorney at Law, for the payment of money, when such money shall not be promptly paid, that such demand shall thereafter draw an interest, at the rate of 20 per cent, per annum”. (Cobb’s N. D. 579.) By this Act it is obvious that the Legislature has, as it were, given to the rule absolute, in such a case, the character of a judgment, which is to hear interest at the rate of 20 per cent. &c. The Act does not provide, that upon the Sheriff failing promptly to pay, he shall be punished by having to pay such amount of interest, or that “ he shall be compelled to pay the same”, &e.; but it declares that thereafter, “ such demand shall draw an interest, at the rate of 20 per cent, per annum”. The payment of this interest, therefore, is made an incident of Law, and cannot, properly, he considered alone in the character of a penalty, for official misconduct.

The liability which is thug cast upon the principal, by effect «f Law, must be considered as one of the incidents to the contract, when bond was. given by himself and sureties, for his proper discharge of official duty.

Judgment affirmed.