
    Pass vs. Dibrell.
    An action on the case at common law will lie against the cleric of a court for a neglect of duty, to the injury of a suitor.
    The acts of assembly requiring the clerks of the courts to give bond and security for the faithful performance of their duties, are cumulative, and do not supersede or impair the common law remedy by action on the case for negligence.
    When a clerk, being required, fails to take bond and security in due form, and thereby discharges the surety, and injures the party for whose benefit it is taken, it is not necessary to proceed against the principal, to establish the amount due before the party can sue the clerk on his bond, or for negligence at common law.
    Where the clerk fails to take security, when required by law so to do, he is responsible in an action on the case, to the extent tho security, if taken, would have been responsible.
    The act of 1787, ch. 19, imposing a penalty of two hundred and fifty dollars on the clerk for failing to take a bond to secure the costs to be recovered by the party injured, does not preclude an action for a neglect to take injunction ,or attachment bonds, and such other bonds as are to secure property or money under a fiat of the court.
    Th@ declaration in this cause, in substance, alleges, f£that on the 21st of January, 1832, Sliadrach Price complained by bill to N. W. Williams, judge of the third circuit, and obtained a fiat for a writ of ne exeat to issue to the sheriff of Smith county, or the sheriff of Sumner county, in whichsoever the property of said Pass should be found; that the order of the judge was directed to the clerk of the White circuit court, being the defendant Dibrell, directing him to let writs of ne exeat, injunction, and subpoena issue, agreeable to the prayer of the bill; he, said clerk, taking from the complainant Price, a bond and security for the costs and damages that, might accrue for wrongfully suing out said writ; that the clerk did issue the writ on which the property of Pass was seized by the sheriff of Smith, to wit, a negro girl and a wagon, team, and harness; hut that said clerk wholly failed, and neglected to take bond and security from tbe complainant Price, for the costs and damages that the defendant in equity, Pass, might sustain by reason of said writ of ne exeat being wrongfully sued out. That the suit in equity was defended; and at a court holden the third Monday of May, 1833, was heard, and the bill dismissed, and the complainant Price decreed to pay the costs; yet the wagon, team and harness had not been returned to said Pass, nor had said Price answered to him for the injury sustained by the seizure of the property, to the damage of the plaintiff one thousand dollars.”
    To this declaration, the defendant _ Dibrell pleaded, amongst other things, “that he did take a bond endorsed upon the bill of said Price against the plaintiff Pass, in pursuance of, and conditioned as required by the fiat of the judge with Enoch Murphre as security, and of a copy of which he makes profert.”
    The plaintiff craves oyer of the instrument, and it is set out as follows:
    “I acknowledge myself the within named plaintiff’s security for the faithful prosecution of the within suit, or on failure thereof, pay and satisfy all costs and damages which may accrue in wrongfully suing out the within writ. Witness my hand and seal, this 24-th of January, 1832.
    Enoch MurphRee, [Seal.]
    Whereupon the plaintiff demurred to said plea, as he' did to the other pleas of the defendant. The circuit court, going back to the first fault, adjudged the demurrer for the defendant Eebrell, holding the declaration bad, and ordered defendant to go hence, &c. From this judgment of the circuit court, the plaintiff prosecuted an appeal in' the nature of a writ of error to this court.
    
      Sam. Turney, for plaintiff in error.
    
      A. B. Lane and J. Anderson, for defendant in error.
    The act of 1787, ch. 19, sec. 1 and .3, make it the 
      duty of the clerk, before issuing any writ, or leading process, to take sufficient security of the person applying, conditioned, &c.; and for a violation of his duty in this particular, subjects him to the payment of two hundred and fifty dollars, to be recovered by action of debt by the person injured, together with a further penalty of one hundred and twenty-five dollars — one half to use of the person suing for the same, and the other half to the use of the poor of the county. 1 Scott 387. By the acts of 1794, ch. 1, sec. 4, and 1809, ch. 49, the clerk of the circuit courtisre-quired to give bond and security, payable to the governor, &c., in the sum of ten thousand dollars, for the safe keeping of the records, and for the faithful discharge of the duties of his Office, which shall be lodged in the secretary’s office, and may (be put in suit on the assignment of the governor, by the party injured, &c.
    The right of the plaintiff, if he has any, as well as his remedy, is given by these statutes. His right did not exist at common law, as is manifest from the preamble to the act of 1787, ch. 19, which is in these words: “Whereas transient persons and others, having no property, either real or personal in this State, obtain writs and enter into litigious law suits, where they have not allegations sufficient to support a suit, or property to disburse the charges thereof in case of failure, much to the injury of the good citizens thereof. For remedy, &c.”
    It is insisted that where the legislature, by statute, create a duty, and annex a remedy for its violation, that an individual suing for an alleged violation of such duty, must bring himself within the provisions of the act, by showing himself the person injured, and in his declaration by averment, pursue the remedy given. The plaintiff had an election to have brought his action of debt, upon the act of 1787, and have declared for the penalty of two hundred and fifty dollars. Or deeming that an inadequate remedy, he should have instituted his action agaipst Price; and having ascertained his damages, and failed to collect them off him, have commenced his suit on -the clerk’s bond. .Having done neither, but on the contrary brought an action on the case at common law, we insist, he has mistaken his remedy; and this court declaring the law, are bound to affirm the judgment of the court below. Crain vs. The State, 2 Yer. Rep. 390; -Lee vs. Clark, 2 East’s Rep. 333. Almy vs. Harris, 5 J. - Reports .17-5; 1 Chit. PI. 357, 358. ' '
   Catkon, C. J.

delivered the opinion of the court.

The declaration is good 'in form, and reduces the question to this proposition; can a suit a't common law be maintained against a clerk of a court, for a neglect of duty, to the injury of a suitor? That the plaintiff hás been injured-by the non feasance, and the omission of an,official duty by the defendant, in not taking the bond to secure the return of Pass’ property, and to secure the damages incident to its seizure, waste, and detention,- cannot be denied, judging fi’om the face of the declaration. And “in every /case where an officer is intrusted by the common law or by statute, an action lies against him for a neglect of-the duty of his office.” 1 Com. Dig. Action upon the case for negligence (A 2.) Has this rale of the common law been changed by statute ? The acts of 1794, and 1309 (1 Hay. and Cobbs’ 39), require clerks of the circuit courts to give bond and security, payable to the' governor., in the penalty of ten thousand dollars, for the safe keeping of the records, and the faithful discharge of the duties of the office, which máy be put in suit on ás-signment of the governor,-by the party injured; yet thid is only to secure the community with the joint responsibility of others equally bound with the clerk, should he not be solvent, to indemnify persons injured, and does hot supér-sede or impair the force of the common law remedy bjr an action on the case. The assumption, therefore, in argument, that the remedy was on the clerk’s bond is not tenable. Nor is it true, that before the clerk could be sued, it was necessary, first, that Pass should have sued Price and ascertained the damages sustained, and then have brought an action of debt upon the clerk’s bond. Some fifteen years ago it had been holden by the circuit courts, that when the security of an administrator was sought to be charged, the distributee must first by bill, or suit on the bond against the principal, have established the amount due, before the security could be recovered against; but in the suit of Newsom vs. Dickinson, at Nashville, in 1823 (Peck’s Rep. 285), the supreme court held the security liable in the first instance, disregarding the Virginia adjudications,, that a double litigation was necessary to onerate the security. The clerk here stands in the situation of security for Price, being liable to the extent Murphree would have been,, had the bond been taj ken in due form; and as Murphree could have been recovered against, without Price having been sued, so can the clerk. To good and sufficient security for the return of the property, and to cover the damages for its detention and injury, Pass was entitled, independent of Price’s ability to pay an)'- damages that might be recovered against him; and having been deprived of that security, by the omission of the clerk to take the bond required by law,Pass has the right to hold the clerk responsible, in an ac-’ lion on the case, to the extent the security, if taken, would have been responsible.

The act of 1787, ch. 19, requiring bond and security to be given for the prosecution of suits, and subjecting-.the clerk to the penalty of two hundred and fifty dollars,to be recovered by the party injured, il the clerk fail to take the bond, has no application to a case like the one presented by the record. The bond that the clerk should have taken from Price, pursuant to the order of the judge, was of a different character; the process issued was grounded on the third section of the act of 1801, ch. 6, conferring power on the courts of equity, to issue attachments at law, to carry into effect their jurisdiction, and the bond required, was in substance to have been an attachment bond, not one for the costs of prosecution, the want of which is not complained of in this suit. That the bond set forth is of die foregoing description, or worth any thing to Pass, in recovering the damages he may have sustained by the detention, use and destruction of his property, is not assumed in argument; it wants an obligee, wants form as a prosecution bond; and if good for this purpose, certainly is not as an attachment or injunction bond. From its face, it does not appear who was plaintiff or defendant to the suit Murphree undertakes shall be faithfully prosecuted, and it is very doubtful whether any averment could help so ill framed an instrument. Eason vs. Clarke, 2 Yerg. Rep. 522.

The demurrers to the second, third, fourth, and fifth pleas are well taken; said pleas, if true, amounting to no defence. The judgment will be reversed, and the cause be remanded for a trial, to be had on the first and sixth pleas.

Judgment reversed.  