
    
      Sarah E. Mitchell vs. E. R. Laurens, and others, his sureties.
    
    Judgment for the penalty of the official bond of a Master in Chancery, was onterod in a suit instituted by A. B. Other suitors, whose actions were pending at tho samo time, were then ordered to file suggestions. At the close of the term, A B. proposed to prove his damages and take verdict as upon a writ of inquiry. The other suitors objected, as there was not time to try all the cases; and A. B’s. case was continued, that all the oases might be tried at the same term.
    A judgment for the penalty of an official bond, is for tho benefit of all persons who may prove damages upon breaches assigned. Tho judgment and jft. fa. thereon create the liens. Suits pending at the same time will be consolidated, and if the damages assessed in those suits exceed the penalty, the creditors will take ratably, until the penalty is exhausted, a creditor afterwards obtaining an assessment of damages upon breach assigned, has only to indorse the amount of his damages upon the fi-fa. and direct the sheriff to collect it.
    
      Before Frost, J., at Charleston, Fall Term, 1853.
    The report of his Honor, the presiding Judge, isas follows :
    “ The plaintiff in this case had, at a former term, entered up judgment for the penalty, on the official bond of Edward It. Laurens, against'himself and his sureties. At the same term, many other suits were at issue by other plaintiffs against Lau-rens and his sureties; but according to the practice of the Court, only one judgment was entered, and that at the suit of the plaintiff in this case, against Laurens and his several sureties. At the same term an order was entered that all the other plaintiffs, whose suits were at issue, should file their suggestions, under the judgment recovered by the plaintiff, and prove the damages sustained by the breaches respectively set forth in their several suggestions. At this term the plaintiff, having entered her case on the inquiry docket, was ready to prove her damages. It was postponed several times, on the suggestion that the defendants were not ready. A day, late in the term, was appointed for the trial of the case: then the attorneys of the other suitors appeared, and objected to the trial of this case, because they were ready for the trial of their suggestions, and there was not time to try all the cases; and the effect of trying the plaintiff’s case would be to give her a preference over the other plaintiffs: that the damages claimed under the various suggestions exceed the penalty of the bond ; and thus some of the plaintiffs would be excluded from the benefit of the judgment which had been entered up, in the name of the plaintiff, for the common security of all their damages ; and that it was contrary to the terms of the order for filing of the suggestions, that any such advantage should be obtained by the plaintiff. Some of the suggestions had been entered on the inquiry docket ; and others had not been, at the time when the motion was made by Mr. Pressley and other attorneys, that the plaintiff’s case should be continued. On the statement of facts and grounds of law urged against the trial of the plaintiff’s case, at a time when many other plaintiffs could not, within the brief remaining period of the term, try their cases, the plaintiff’s case Avas continued.”
    The plaintiff appealed, and now moved this Court to reverse his Honor’s decision, directing her cause to be continued, and to allow the plaintiff, upon the future assessment of her damages, to take an order to collect the amount due her nunc fro tunc.
    
    1. Because these parties, (plaintiffs in other causes upon suggestions in re against the same defendants,) upon whose motion the case was ordered to be continued, were not parties to the cause then before the Court, and the defendants being represented by their counsel, they had no right to move in the matter.
    2. Because the ground upon which they claimed a right to have the plaintiff's case continued, viz: that there was not time to try all the causes, was insufficient in law to deprive the plaintiff of her priority on the docket.
    3. Because his Honor erred in ruling, that all the suggestions of damages were one case, and must be proved at one time ; whereas it is here contended, that although the judgment is one, the suggestions are many and independent cases, and are to be proved as such.
    4. Because the case was of inquiry, and no motion having been made by the defendants to transfer it to the issue docket, the plaintiff was entitled of right to proceed, prove her claim, and have her damages assessed by the jury, with an order from the Court to collect the amount under the execution in the case.
    5. Because the order to continue was contrary to law and the rules of practice.
    
      W. Whaley, for appellant.
    
      Pressley, contra.
   The opinion of the Court was delivered by

Glover, J.

Under the practice settled in the case of the Treasurer vs. Bates, (2 Bail. 362,) the first judgment, recovered for the penalty of an official bond against a public officer and his sureties, enures to the benefit of all persons who may then, or afterwards, establish judicially a breach of the condition. By suggesting breaches and serving a rule, the damages sustained by the party in suggestion can be ascertained ; and he may have execution of the judgment rendered for the penalty, to the extent of his recovery. ‘ Where several actions are pending against the same officer and his sureties, they will be con. solidated, and if the penalty of the bond be insufficient to satisfy all the damages which have been assessed on the several breaches of the condition, then the verdict should pursue the form indicated in the case of the Treasurer vs. Bates (1 Hill, 409).

It was held, in Norton vs. Mulligan, (4 Strob. 355,) that a subsequent assessment of damages, on suggestion of breaches of an official bond, will take priority of a judgment recovered against the officer, of older date than such assessment. A lien attaches on the penalty when th’e first judgment is rendered, not only in favor of the party for whose benefit the action is brought, but also in favor of all who shall afterwards prove breaches of the condition of the bond ; and to obtain satisfaction of these subsequent recoveries, it is only necessary to endorse on the fi. fa. the amount of the damages subsequently assessed, with directions to the sheriff for further execution of the judgment “ which creates no new lien, but restores an old one which" had been suspended.”

If the officer be insolvent, and the recoveries against him exceed the penalty of his bond, the penalty will be ordered to be paid over to his creditors ratably, where they are all before the Court, and their cases have been consolidated. A party suggesting breaches of an official bond after the penalty has been paid to the sheriff, and distributed among those whose damages had been assessed, will lose the benefit of the lien which the judgment for the penalty had created in favor of the suing creditors. No laches can be imputed to the other plaintiffs in the several suits against Edward R. Laurens and his sureties. Like the plaintiff, in this matter, they were ready for trial at the last term, and it was not for the want of diligence, but for the want of time, that all the cases were not disposed of then. The assessment of the plaintiff’s damages would have given her no preference over others whose suits had been consolidated, and were then at issue. If she had executed a writ of inquiry, the sheriff would have been restrained, by the order of this Court, from paying the amount of her assessment, until the damages of the other plaintiffs had been ascertained and the ratable share of each had been fixed.

The continuance of a cause must, generally, be left to the discretion of the presiding Judge, and as an order for consolidation had passed, it was fit that all these causes should be heard at the same time. Unless the continuance, therefore, would have defeated the plaintiff’s lien, the discretion vested in the Judge was properly exercised. If the plaintiff lost no advantage by the act of the Court, she would not be permitted to enter judgment nunc pro tunc, even if the judgments had been several; but the judgment had already been entered for the penalty which created a lien in favor of all the plaintiffs whose cases had been consolidated. “ To allow the plaintiffs,” in the language of the grounds of appeal, “upon the future assessments of their damages to take an order to collect the several amounts due them nunc pro tunc,” would anticipate a more appropriate order, to apply the penalty ratably when all the assessments shall have been made.

Motion dismissed.

Q’Neall, Withers, Whitner and Munro, JJ., concurred.

Wardlaw, J., absent at the hearing.

Motion dismissed.  