
    The Treasurers v. Allen Barksdale.
    
      Laurens, Spring Term, 1833.
    ®ebt on Sheriff’s bond. This case was tried before Justice Evans, who made the following report:: 3 o Jr
    iioA"g“in°t‘Tho ficial bond, for briTbma? T“d
    ao acü°n^fdebt bona.
    howtowijmay agent^conusant deb'cdnca“fin"
    where a writ with m;U o£ Sdgod with sheriff and thB and toll ™a 'IT1 hT, ThaTlT answerable _ to aTi ?Tcmpiain-“iasi*,™ Sir *ed against, ti» se£T£ie“ Wdó® TThTgl toTT
    
      The facts of this case as proved and admitted, are as Prior to the year 1817, one William Bowen was indebted by note to Merrill and others. The note was sent to Mr. Henry Young for collection, some time in 1817. Mr. Young renewed the note, which remained in his possession, until 1824. He then made an affidavit, setting forth the amount and date of the note, that it had been in his pqssession from its date, and that Bowen had paid no part of it to him or the payees, to his knowledge or belief. Upon this affidavit, an order was made by a Justice of Quorum for bail, and the writ lodged with the Sheriff, Barks-dale, who arrested Bowen, and held him to bail. The writ was in assumpsit; in the bail bond, it is mentioned, as a writ in debt. On the return of this writ, a motion was made to discharge the bail — refused by the circuit Court. A judgment was rendered against Bowen and á ca. sa.was issued, and returned nonestinventus. After return, Mr. Young, the Attorney of the plaintiffs in that action, called on the successor of Barksdale, and procured an assignment of the bail bond to the plaintiffs, Merrill and others. An action was brought against Halbert, the bail of Bowen, which was decided in favor of the defendant, on the ground that the bail bond was void. Soon after the execution of the bail bond, Bowen left the State. In December 1826, he was resident at Milledgeville in Georgia, and during that month, he received by virtue of some legislative of the State of Georgia, upwards of $19,000 in cash, and forty Africans. He paid of this sum $2,000, to his creditors there, and about a month after, removed to Florida. He afterwards became insolvent, and has since died. On the 25th July 1829, the plaintiffs in the case against Bowen, sued the present defendant Barksdale, in an action on the case, and were nonsui-ted for want of security for costs. This action lias been since brought, in the name of the Treasurers.
    “The points made in the pleadings, and in the argument, were the following vit:
    “1. That no action \yould lie against the Sheriff on his official bond.
    “2. That the cause of action did not accrue within four years before the commencement of this suit.
    “3. That the affidavit and order for bail in the action against Hunt, were void on the face of them, and the Sheriff therefore not bound to take bail.
    “4. That the bail bond taken was valid, and the opinion of the Appeal Court in the case of Merrill v. Hal-bert erroneous. •
    “5. That the plaintiffs, by taking an assignment of tlm bail bond, discharged the Sheriff.
    
      “6- That the aceeptan.ee of the bail bond, has pfe-vented the defendant from resorting to Bowen whilst he was solvent, for indemnity.
    “On the first ground, I am of opinion the action is properly brought. The words of the act of 1795.. 2 Brev.lÍ7, are, “The bonds may be sued for, by any person who may consider himself aggrieved by any misconduct of the sheriff.” To take a void bail bond, is the same as to- take none. It is an omission to do what the law requires of him, for which he and his se - curities are liable. The only difference in their liability, is, that he-’must be sued to insolvency first. If a nulla bona has been returned against him in any case, he and his securities may be jointly sued, without any previous action against him.. This was decided in the case of the Treasurers v. Bates,. 2 Bailey’s Rep. 362.
    “On the second ground, it is sufficient to say, that, the statute of limitation, does not apply to an action of debt on a bond. It is true that the plaintiff might have sued the sheriffin an action on the case, and if he had done so, the statute might have beenpleadedin bar of the action. But it is ■ also true, that he has entered into a contract, to secure the performance of his official duty by an instrument to which the'stat. of lim. does not apply, and this may have been, ohe of the reasons which operated with the Legislature in requiring him and his securities to be bound in a bond, rather than a simple contract. The plea of the stat. of lim. is therefore overruled.
    “I am of opinion the third ground cannot avail the defendant. The objections are, that the affidavit was made by an agent, that the sum due is not set forth with sufficient certainty, and that the affidavit does not negative the payment of the debito the payees. To these objections, the answers are satisfactory. 1. That the affidavit may be made by the plaintiff his wife or a third person, 1 Tidd. 154. 162. 2. That the amount of the note, and the time when due are set forth. 3d. That the affidavit states, that the note had always been in the possession of Mr. Young, that it ucver had been paid to him, nor to the plaintiff, as he believed. In Lowe adrar, v. Mayson, 3. McCord 313, the plaintiff swore that notes had been found •among his intestate’s papers, from which it appeared the defendant was indebted $1700, and this was held sufficient.
    lBaiiey, m
    “The appeal Court in the case of Merrill v. Halbert, decided that the bond taken by the defendant Barks-dale was void, and this is a sufficient answer to the fourth ground.
    “In relation to the fifth ground, I think the correct rule is laid down in 2 Saunders 61. Note 7, If the bond be valid, aadthe plaintiff take an assignment, it will discharge the sheriff, but if the bond be void, the plaintiff may still proceed against the sheriff. The reason is this, -the bond is the sheriff’s security. If the plaintiff take an assignment of it, and it be good, the liability of the bail, is substituted for that of the sheriff; but if it be void, the assignee takes nothing in lieu of the sheriff’s liability. In this case there was no agreement to accept the assignment in discharge of the sheriff, and in the absence of proof, the law will not imply such an undertaking, where there is no consideration.
    “Neither can the sixth ground avail the defendant. The plaintiffs in that action, have not in any way interfered with any efforts of his to indemnify himself out of Bowen. It was the misfortune of both of them, that they did not know the hail bond was void, but the loss must fall-on him, out of whose conduct, the loss has ■arisen: it was the defendant’s fault, that he did not take a sufficient bail bond. I am therefore of opinion, that none of these grounds can avail the defendant, and that the plaintiffs are entitled to recover.”
    The jury found a verdict for the plaintiff, for the amount of the recovery against Bowen, and the defendant appealed, and moves for a new trial on the grounds ■ taken below.
   Johnson J.

delivered the opinion of the Court,

We concur generally in the view taken by Mr. Justice Evans, of the questions, which were made on the circuit. Tire third, fourth and fifth, in the order in which they are stated in the brief, were disposed of in the case of Merrill v. Halbert, and I am satisfied that the authority of that case, will not suffer by an examination of the principle. Concede that according to the statute 23d. Hen. 6 ch. 9 it is sufficient that the condition of the bail bond should require the defendant to appear and answer generally, — yet if the sheriff, who ought to know what ought to be the form of the bond, will as a condition of discharging him upon bail, superadd a specification inconsistent with the true object, it will upon the plainest principles, control the general expression. A bail bond, like all other contracts, must be construed according to the obvious import of what is plainly expressed upon its face, and we are not at liberty to substitute one condition for another, even in a bail bond. As authority, therefore, that case is decisive upon these points. I incline to think also, that the judgment in that case, is conclusive against the defendant by way of estoppel. But it is unnecessary to consider that question now.

Irby & Thompson, for the motion.

Young, contra.

Motion dismissed.

G’Neall J. concurred.

Harper J. absent.  