
    
      Robert G. Norton v. Edward Mulligan.
    
    A judgment in the name of the State, against a sheriff and his sureties, on the official bond of the sheriff, for the penalty of the bond, binds the property of the sheriff to the amount of that judgment, and stands as a security for all prior and subsequent breaches of the bond.
    A second or any subsequent assessment of damages, for breach of his official bond, will come in and take priority of a judgment against the sheriff, of older date than such assessment.
    After judgment has been obtained upon the sheriff's official bond, and fi. fa. lodged for the penalty, and the sum assessed upon the breach assigned levied, if further breaches of the bond be subsequently assigned, and it be ordered that the plaintiff have further execution, the endorsement of the directions for levying the subsequent assessment, upon the fi. fa. before lodged, does not create a new lien, but restores an old one which has been suspended.
    After judgment has been entered up against the sheriff and his sureties, and fi¡ fa. for the penalty of the sheriff’s official bond has been lodged, and levy made in satisfaction of the breaches assigned, the lien of the fi. fa. is suspended until further assignment; and whilst thus suspended, money levied from the defendants or either of them, should be paid to other liens against them, just as would be done if the fi. fa. was under injunction from equity; but an endorsement on the fi. fa. of an order to collect a new assessment, fully restores the efficacy and original lien of the fi. fa., and gives it precedence of all junior liens against the defendants, whilst it is seeking execution.
    The pleading to a suggestion of further breaches, after judgment upon a sheriff’s official bond, so far as concerns the defendants’s liability for any breach, and as concerns matters of form apart from the assignment of breaches, should be like the pleading to a sci. fa. on judgment; and so far as concerns the defendants’s liability for the breaches suggested, and matters of form in the assignment of them, should be like the pleading to a replication assigning breaches after a plea of performance.
    
      Before Richardson, J. at Gillisonville, Spring Term, 1847.
    REPORT OP THE PRESIDING JUDGE.
    This was a rule on the sheriff, to show cause why he had not applied certain moneys in his hands towards the satisfaction of the above entitled case. To the rule the sheriff made •the following return..:
    
      “In answer to the rule in this case, the sheriff shows far cause the following facts: At April term, 1845, a judgment was rendered in the name of the State of South Carolina, against Edward Mulligan and the sureties,- on his official bond as sheriff of Beaufort district, for twenty thousand dollars, the penalty of the said bond; and execution, therefor, was lodged in the Coroner’s office, and marked “ lodged and entered 14th April, 1845, R. F. Roberts, C. B. D.” , This execution, when first lodged in the Coroner’s office, was endorsed with the following words :
    “Penalty, $ 20,000
    Collect for Wm. Youmans, jr. 608 70.”
    This sum ($608 70) was afterwards collected and paid.— At April term, 1846, another breach of the said bond was assigned, whereon the sum of $816 37 was assessed for the said Wm. Youmans, jr. and the execution aforesaid was farther marked with this endorsement.
    “ Second entry, 13th April, 1846 — J. J. Finley, Sp. Cor.”
    “ Collect for Wm. Youmans, jr. $816 37.”
    This execution, after sheriff Mulligan’s term of office expired, was lodged and entered in the office of this respondent, Í3th February, 1847.
    The sheriff further shows that, at November term, 1845, the plaintiff in the above entitled case, obtained a judgment against Edward Mulligan in his individual capacity, and execution, therefor, was lodged in the Coroner’s office and marked “lodged and entered 17th Nov. 1845. T. S. Brun-son, Coroner B. D.,” and after sheriff Mulligan’s term of office expired, was lodged and entered in the office of this respondent, March 19th, 1847.
    On sale day in this month, this respondent, as sheriff, sold two tracts of land as the property of Edward Mulligan, for the sum of $ ; and certain personal property, for the sum of $ ; making a total of $4602 50; and after applying the sum of $3708 06 to senior executions, a balance of $894 44 remains in his hands, which is now claimed by Wm. Youmans, jr. in satisfaction of the sum of $816 37, assessed for him as above stated, and by the plaintiff in the above stated case, under his execution.
    The sheriff, being unable to decide these conflicting claims, has refused to pay either: and submits the question to the Court.”
    Upon the hearing the foregoing return of the sheriff, the Circuit Judge ordered the money in dispute to be paid to the plaintiff in the above entitled case.
    The securities of Mulligan appealed, and moved to set aside the order,-on the following grounds
    
      1. That the judgment against Mulligan and his sureties, signed April 14, 1845, for the penalty of the official bond of( said Mulligan, binds the property of the defendant to the amount of that judgment, and stands as security for all prior and subsequent breaches.
    
      2. That the said judgment is anterior in date to the judgment of Norton, ordinary, and being yet unsatisfied, takes precedence of it.
    3. That the assessment on the second suggestion of Wm. Youmans, jr. for whom the money is now claimed, was made anterior to the sale of Mulligan’s property, from which sale arose the money now in dispute.
    
      Coleock & Currell, for the motion.
    Martin, contra.
   Oui'ia,per Wahdlaw, J.

It has been supposed in the argument here, that the directions which were given by the court, in the case of the Treasurers v. Bates, for suggestions of further breaches of the judgment recovered upon a sheriff’s bond, were in fact legislative, inasmuch as the Stat. 8 and 9 Wm. 3, ch. 11, has never been made of force in this State. If we had no statutes on the subject, there, could not with any propriety be another judgment of the Treasurers, (or in the form of the bond adopted by the Act of 1829,) against a sheriff for the penalty of his official bond, when one such judgment had already been recovered; and so, of necessity, the court would have been compelled, in order that it might afford to various persons injured by a sheriff’s official misconduct, the relief contemplated by our Aets, and at the same time avoid the anomaly of two or more judgments by'tbe same' plaintiff against the same, defendant, for the same debt, to adopt and regulate some new mode of proceeding. But our Act of 1792 seems to have been overlooked. That Act had the same purpose as the Stat. of Wm. 3d, without resort to a Court of Equity, to confine the plaintiff’s execution, after his recovery upon a penalty intended to secure the performance of covenants, to the damages actually sustained, and costs. The general provision of the Act, like that of the Statute, is that the damages shall be assessed by a jury, upon proof to be offered by the plaintiff, and that the judgment for the penalty shall stand as a security for the sum assessed and costs. The effect of the Act, in conformity with the express provision of the Statute, is to allow a plaintiff, in his declaration, or in his replication, to asoign as many breaches as he may see fit, without fear of objection for duplicity. The Statute was more minute, directing that the various breaches which a plaintiff complains of, may be assigned in his declaration or replication, or that if judgment be given for the plaintiff on demurrer, by confession or nil dicit, such breaches may be suggested on the roll, and writ 0f jnqUjry be thereupon issued ; and that jfor the further breaches after judgment entered, the plaintiff shall by scire facias qUare executio non, have a new assessment or inquiry, and execution of the damages assessed, and so on toties quoties; the judgment for the penalty standing as a secuiity, and proceedings upon it being stayed, whenever the damages already assessed have been paid, together with' the costs and the charges of execution. Our Act being less precise,,, had left the course of proceeding more within the discretion of the court, and in the exercise of that discretion, a suggestion with notice (which may be considered either as being in the nature of a sci.fa. or in lieu of a sci.fa.) has been directed to be employed after, as well as before judgment. Although the defendant cannot plead to a suggestion on the roll of breaches, in the cases where the' Slat, of Wm. 3d directs such a suggestion to be made, he can, with us, plead to a suggestion of breaches after judgment, which, under the Statute, would have been a sci. fa. The case of the Treasurers v. Wiggins, and the case of the Treasurers v. Buckner, shew that no error or default in the defendant’s pleading can save the plaintiff from the necessity of proving the damages for which he would have execution. The latter case directed that the pleading to such suggestion after judgment, so far as concerns the defendant’s liability for any breach, and as concerns matters of form, apart from the assignment of breaches, should be like the pleading tó a sci.fa. on judgment; and so far as concerns the defendant’s liability for the breaches suggested, and matters of form in the assignment of them, should be like the pleading to a replication assigning breaches after a plea of performance; (which direction is here repeated, because this and other parts of the opinion in that case cannot be understood as they have been reported.) Our Act, and the directions given under it, like the Statute of Wm. 3d, contemplate only one judgment and one writ of execution, both for the penalty, with proper entries on the roll of the assessments and of the satisfactions. The chief difference between the Act and the Statute seems to be, that the former does not necessarily contemplate the case of further breaches after judgment, which is expressly provided for by the latter. Indeed, some of our cases, as the case of Mitchell v. Humphreys and Dawkins, and Durkey v. Hammond, have held that after a certain time, if no assessment has been required by the defendant, the judgment for the penalty may be enforced by the plaintiff, unless the Court of Equity interfere. But if the word may, used in the Act, be considered as equivalent to must, as the same word used in the Statutes has been, and the words before he takes out his execution,” be held to mean before he have execution., that is before his final process be executed, the Act will cover every case provided for( by the Statute • and without such a construction, we have no remedy for further breaches occurring after an assessment once made, unless we shall permit a second recovery to be had upon a bond of which the whole penalty has already been recovered. Such a construction, it appears to me, should be given ; if it be given, then the only difference between a case on a sheriff’s official bond, and a case upon an ordinary bond for performance of covenants, is that in the former, (from the necessity of giving remedy to various persons under the same bond, payable to one nominal plaintiff,) after one assessment, if other damages had accrued before the first suggestion, they might be proved upon a future suggestion ; whereas, in the latter, the liberty which a plaintiff has in" the first instance, to assign as many breaches as he sees fit, might well be held to prevent him from showing, under any subsequent assignment, breaches which had preceded a former assessment;

Proper entries made on the roll in the case of the State v. Mulligan and his sureties, would shew, first, that the bond, condition and breach assigned in behalf of W. Yo.umans, having been set forth, upon issue joined and verdict for the plaintiff, the State,.the plaintiff, by consideration of the court, recovered the penalty of the bond, and the jury having assessed the damages upon the said breach, assigned in behalf of Wm. Toll-mans at $>608 70, it was ordered that the plaintiff have execution of that sum, together with costs ; the judgment for the penalty to stand as a security for the sum so assessed, and all other sums to be assessed.

Second : That a writ of fieri. facias for the penalty was lodged, and was indorsed with directions for the sheriff or coroner to levy the sum assessed as aforesaid, together with costs; and that that sum, together with the costs and.the charges of execution, having been paid, further proceedings were staid.

Third : That a further breach in behalf of W: Tollmans having been suggested, and inquiry having been had thereon, a further sum of -$>816 37 was assessed as the damages which had accrued from the said further breach, for which, with the costs incident thereto, it was ordered that the plaintiff bavefurthepexecution; and that in conformity with such order, directions were indorsed upon thefi.fa. before lodged. The second assessment, when directions for levying it were indorsed upon the fi.fa. did not create a new lien, but restored an old one which had been suspended. No additional writ was lodged, or should have been; there was only an order given which authorized the fi. fa. for the penalty that had obtained payment of the first assessment to be again effective for the second one. If the fi. fa, when thus called into ac-i tion anew, does not take date from its lodgment, it can have no lien at all; for there is no law which gives to an order such as that indorsed on the fi. fa. any efficacy in creating a lien. Whilst th e fi.fa. was suspended, money which was levied from the defendants, or either of them, should have been paid to other liens, just as would have been done had the ji. fa. been under injunction from Equity. No notice of other liabilities by the defendant upon the sheriff’s official bond, short of an indorsement on the fi.fa. of the order to collect a new assessment, would have defeated other liens. Such an indorsement as fully restored the efficacy and original lien of th e fi.fa., as the removal of an injunction which had restrained it, would have done. It is not now the time to consider what may be the rights of persons who become purchasers from a defendant during the suspension of the lien of a fi.fa. As to creditors who have junior fi. fa's., it seems clear that they are not entitled to money which comes under the lien of-the older jfi.fa. when it is seeking execution.

It is therefore ordered that the motion be granted; that the order made on the circuit be set aside, and that the rule be discharged.

O’Neall, Evans, Frost and Withers, JJ. concurred.

Motion granted.

Richardson, J.

dissenting. The facts of this rule upon the sheriff, are all plain. In April ’45, judgment against sheriff Edward Mulligan and his sureties was duly entered up at the suit of Wm. Youmans, of course in the penalty of 20,-000 dollars. The damages amounting to $608 70. and the money duly paid. In April ’46, other damages, in $816 37, were assessed for the same Wm. Youmans, in a different cause of action. This second assessment was made under the brief form of proceeding ordered by the court in the case of tho Treasurers v. Bates, in 1831, as a substitute for the regular suit, formerly brought by every one complaining of the defalcations of a sheriff.

But before this second assessment of damages for Wm. Youmans, to wit: in Nov. ’45, R. G. Norton recovered a judgment against the same Edward Mulligan, individually, for $ . Norton’s execution was filed in Nov. ’45.

The question, therefore, is this: Does the second assessment for Wm. Youmans, in April, ’46, come in and take priority of the judgment of Norton, of November, ’45? In a word, can the third lien of Youmans supersede the second lien of Norton, and so come in as if identical with Youmans’ first lien, of April, ’45, and thus reach over Norton’s lien, which stands prior to it by six months?

Such encroaching is either justified by the decision and for-inula ordered to be adopted in Batesr case, or, it is utterly illegal. For, at law, successive judgments bind the defendant’s property according to priority of time in their rendition. (

For instance, before Bates's case, every one complaining of the defalcations of a sheriff, had to sue him and his sureties upon the official bond ; and the first judgment or assessment had, exclusively and for itself alone, the first lien ; and subsequent judgments their liens in the order of priority.

How, I ask, has Bates’s case introduced this species of jus post limini, or rather, annexation and tacking of successive liens of different assessments to the first judgment, upon the official bond of sheriffs? Such assessments, made under the rule of Bates's case, are for different causes, and ought to stand as they did before this mere formula of suing was judicially altered. One judgment or assessment may be for not paying over money; a second for distraining goods illegally, and a tripple penalty allowed, as in DeLeissline's and Blake's case; a third for an assault and battery by a deputy, and so on. The first judgment may be rendered the first year the sheriff was in office ; on the second, the third, and the fourth years, the sheriff may make successive defalcations ; shall the assessments of these defalcations have their liens all carried back to a time anterior, and even before such subsequent defalcations accrued, simply because there had before been a judgment upon the sheriff’s bond for some other defalcation? Can the first judgment make the sheriff’s bond like a recognizance, or the acknowledgement of a penalty on record, to hold a lien for every subsequent and possible future defalcation ?

Are the sureties, too, of the sheriff, and their respective creditors, to be placed in this unknown and contingent point, and to have their judgments against such sureties all superseded, by such a reference of subsequent assessments back to the first judgment; and when, too, this first judgment, as in the very case before us, had been already paid and satisfied, before the second assessment of Youmans ?

If the law be so, then, if there be a judgment on the official bond against the sheriff and his sureties for $100, although that $100 be actually paid, you cannot trust such sheriff or his sureties, even though your lien be secured by a confession of judgment.; you cannot trust, lest second and subsequent defalcations of the sheriff should rise up and augment such $100 judgment, by successive assessments, to the full penalty of $20,000, to overreach your prior judgment.

The law cannot tolerate such unknown perils, and underwrite them by transferring them back to the more formal lien of the first, judgment, which has been kept open merely by the rule in Bates’s case. It is entirely unlike the judgment on the penalty of a bond to pay by instalments.

In such a case, the instalments are on the face of the bond. and the judgment covers only the legible instalments, which are set forth in terms and inseparable from the penalty, which covers all the instalments, in virtue of the express contract to pay by such instalments.

If- Bates's case is thus to overthrow liens, or to introduce such new rules for their order, the sooner we arrest its consequences the better. But Bates's case, duly expounded, is, in itself, a harmless adjudication.

It legislates no such revolution in the established doctrine of liens.

It merely introduces a brief formula for cases after the first judgment, to call the sherifi and his sureties to account quickly and with less expense of costs to them — nothing more was intended. Any thing further would be legislation, and destroy vested rights. For example, Norton’s lien on Edward Mulligan’s estate would be lifted “ ex post facto” i. e. by the subsequent assessment and judgment in favor of Youmans, the very cause of which may not have existed. I would here ask, too, if A recovers against the sheriff and his sureties and has been paid, and the defendants all become insolvent, shall A be liable to be called on to divide with all the subsequent judgment creditors who obtain assessments under A’s judgment, for the whole penalty of the sheriff’s bond? This would be a regular consequence of the new order of liens ; for it clearly pre-supposes that all the assessments are on one footing, i. e. to come in equally under the first judgment, like one penalty to pay instalments to many persons. But can the court make such a contract for unknown parties? Who can, even now, tell what assessments are yet to be made under the first judgment of Youmans, of April,’45? There may be twenty assessments to be yet made. Are such future assessments to come in, to overreach all past judgments against Mulligan or his sureties? Is it not plain, therefore, that every assessment must stand on its own bottom, and have its lien according to the rendition of the assessment itself? Any other rule would not merely introduce a formula, but new law, for such cases ; violating the order of liens, as it stood before Bates's case, i. e. judgments bound the defendant’s property according to the dates of their rendition, respectively. If, therefore, the established rule of liens is still the law, Norton’s judgment must take the money, and the Circuit Court decision was right.  