
    Harrison, et als. vs. A. V. Brown, Gov., &c.
    
    Action. Parties» Sheriff's bond — who may sua thereon. The party injured, and he only’ by the breach of a sheriff's bond, payable to the Governor, may maintain an action on the bond in tho name of the Governor for hr3 upo.
    This was an action of covenant in the circuit court of Montgomery county, in the name of Aaron V. Brown, Gov., &c., against Harrison and others, securities of A. Wheless, formerly a sheriff of Montgomery county. The declaration alledges the execution by the said sheriff, jointly with the defendants, of a bond, payable to Aaron V. Brown, Gov., &c.; the condition of which was that the said sheriff, in his office of sheriff and as collector of the public taxes should “well and truly execute, and true return make of all process and precepts to him directed, and satisfy and pay all fees and sums of money by him received, to the person or persons, to whom the same should be due, &e., and in all things well, truly and faithfully execute the said office of sheriff, during his continuance therein.” The breaches of this bond, assigned in the declaration, are that the sheriff had not well and truly executed, and true returns made of process and precepts to liim directed, nor satisfied and paid all fees and sums of money, by him l’eceived, to. the person or persons entitled to receive them; that the said Wheless had not “kept anything in the said bond or obligation on the said defendant’s part to be performed, fulfilled and kept.” The declaration further avers, that “the said A. Wheless, sheriff and collector of the public taxes of Montgomery county aforesaid, did receive the sum of twenty-five thousand dollars, it being part of the money had and received by him upon process and precepts to him directed, upon fees, &c., by him received, and in other ways, in his official capacity as sheriff; also being a part of the money received for public taxes, as collector of the same as aforesaid. And the said Wheless hath not paid out the same,” &c. At the September term, 1851, Johnson, Judge, presiding, there was a trial upon the plea of payment, the action being debt, and a verdict rendered for the plaintiff. The defendants moved the court in arrest of judgment, but the motion being overruled, judgment was rendered in pursuance of the verdict, and they appealed in error.
    Kimble, for plaintiff in error.
    Attoeney General, for the State.
   McKinney, J.,

delivered the opinion of the court.

The judgment must be arrested in this case. There is no authority of law for maintaining such an action in the name of the Governor. In his official capacity, he is not, and cannot be, injured by a breach of the condition of the sheriff’s bond, and, therefore, in such capacity, can maintain no action thereon. By the act of 1777, chap. 8, sec. 2, it is provided that the penalty of the sheriff’s bond shall be payable to the Governor and his successors; and that, “upon a breach of the condition of such bond, the party or parlies injured, may maintain an action thereon, and that such bond shall not become void on the first recovery, or upon judgment given for the defendant, but may be put in suit, and prosecuted from time to time, until the whole penalty shall be recovered.”

Under this statute the practice was, in case of breach of the condition of the bond, to the injury of a particular person, to procure an assignment of the bond to such person, by the Governor, and to institute suit thereon, in the character of assignee.

But by the act of 1835, chap. 16, § 1, it is provided that, “In all suits hereafter brought upon sheriff’s bonds, in this State, it shall and may be lawful for the party or parties injured, by reason of the breach of the conditions of said bonds, to institute suits thereon, in the name of the Governor of the State, for his or their use, and to make profert of a copy of said bond in the declaration.

From these statutory provisions, and from the nature of the case, the proposition that the Governor,in his official character cannot, and that none other than the party injured (by reason of the breach of the condition of the sheriff’s bond,) can maintain an action thereon, is too obvious to require either argument or illustration.

Judgment arrested.  