
    CONSTITUTIONAL COURT, COLUMBIA,
    APRIL, 1806.
    Commissioners of the Treasury v. The Executors of J. Moore.
    In an action against a sheriff on his bond to the treasury, or against his sureties, for default of paying over or accounting for moneys levied or collected by execution, it is not necessary to prove that the sheriff was ruled to pay over or account.
    Motion for a new trial. Debt on a bond given by W. R. Davis and his securities, conditioned on the part of Davis to perform the duties of sheriff of Camden district. Defendants pleaded perform, anee. Plaintiffs, in their replication, set forth a breach, viz.: That Davis had received, as sheriff, £30 upon a certain execution placed in his hands to be executed, &c., which money he had not paid over to the person intitled thereto. Davis’ receipt was produced; but there was no evidence to shew that Davis had ever been ruled, or even called on for the money. Issue was taken on the breach assigned. It was objected at the trial in Sumter district, before Trezevant, J., that the evidence produced was insufficient to prove the fact slated in the breach ; for although it did appear that Davis had received the money as sheriff, and that the person now claiming in this action, was intitled to that money; yet it did not appear that Davis was guilty of any neglect or violation of duty in not having paid the money over, because it did not appear that he had ever been called on to pay over the money: and that at all events, as the person intitled to the money had neglected to prosecute his demand against the sheriff within a reasonable time after he retired .flora office» his securities were absolved from their liability.
    
      Trezevant, J., in his charge to the jury, told them that no advantage could be taken of the circumstance of laches of the party *n not pressing the sheriff for the money, (if such a defence was maintainable at all,) under the pleadings filed in the present case ; and that if the defendants could avail themselves of such a defence they ought to have pleaded it specially.
    The motion in this court was argued by Richardson, for de. fendants.
    Cited 2 Ves. Jr. 12, 518. The condition was-submitted as on a writ of inquiry. All the circumstance's of the case ought to have been submitted. The securities not to be answerable forever, but only according to the reason and nature of their under, taking, and provided the obligee uses reasonable diligence.
    Branding, against the motion.
    This case is not within the principle of the casé cited. Plaintiff might have been ignorant that the money was received. There was no compromise or agreement to the prejudice of the securities, between the plaintiffs and the sheriff.
   April 28,1806.

Bay, J.,

delivered the opinion of himself, Grimke , Waties, and Brevard, Justices. There' was no necessity to- lay the sheriff under a rule. It was his duty to pay over the money. The presumption is, that he kept it wrongfully. Waties, J., said he had changed his opinion on the subject. That he had formerly held, that the sheriff’s sureties were not bound in case the executor’s creditors neglected to rule the sheriff, or otherwise neglected to use diligence to recover the money from the sheriff. But now he thought otherwise, and that creditors were not bound to pursue the sheriff. Brevard, J., said, he would express no opinion how far the evidence of laches on the part of the real plaintiff in an action like this, might avail the defendants, (being the securities of the sheriff) as they had not pleaded specially the nature and circumstances of such defence in the present case, which he though! they ought to have done, in order to avail themselves thereof. That this defence^ if it could be supported, (Would go to defeat the plaintiffs’ right to recover altogether, as to the securities; and, therefore, he conceived it would be improper to allow such evidence to go to the jury upon the submission of the condition of the bond, as on a writ of inquiry, because in such case the special circumstances submitted cannot go to defeat the action, but only to diminish the damages. The ground of his opinion against a new trial was, that there was. evidence before the jury sufficient to authorize them to find against the defendants on the issue joined.

Wilds, J., was of opinion a new trial ought to be granted. That in such a case as the present, one of two innocent persons must sufferand wherever that is the case, the law will throw the loss on him who has been least viligant and attentive. In all contracts there is a reciprocity ; there are reciprocal duties to be performed. He who claims to recover against a sheriff’s securities for the sheriff’s breach of duty, ought to show that he himself has not been negligent of his duty. The sheriff’s failure of duty may be imputed to his want of attention to bis own interest. In the present case, he thought the real plaintiff ought to have proved a demand on the sheriff, and even that he had taken every necessary step to obtain the money from him, before he could make the securities answer, able, and that the defendants were infilled to give all the circumstances of laches in evidence, on the submission of the condition of the bond.

New trial refused.  