HAGOOD V. B1<YTHE.
17Wuth v. F'itagerald, 10 Neb. 401, 6 N. W. Rep. 470. The views here expressed ep.title tbe plaintiff to a judgment for tbe amount claimed, and judgment will accordingly be entered, on plaintiff filing with the clerk of the court the refunding bonds in his possession, hereby held to be invalid.
HAGOOD V. BLYTHE
((Jireuit Oourt, D. South Oarolina.
PRINCIPAL AND SURETy-DISCHARGE OF SURETY.-
In order to discharge a surety short of payment 'of the debt there must be some dealing between the creditor and the principal changing the cause of action, or suspending the right of action.
j. UNITED STATES MARSHAL-BoND-JUDGMENT.
When a private person brings suit against a marshal and his sureties on his official bond for official default. the judgment should be, not for the penalty, but for his damages legally assessed. Such suit, and the judgment thereon, are for his sole use. Rev. St. U. 8. §§ 784, 785.
(Syllabu8 by the Oourt.)
At Law. Action on marshal's bond. ,Mitchell Smith, for plaintiff. Barker, Gilliland Fitz Sim0n8 and Brawley
Barnwell, for defendants.
SIMONTON, J. Action at law on a marshal's bond, against him and his sureties. A trial by jury waived. Complaint alleges the collection by the United States marshal of certain costs due plaintiff as clerk of the -court in Farr v. Chick,-$187. 75; the failure to pay the same to plaintiff; and demands judgment on the penalty of the bond. The collection -of the money in July, 1883, by Blythe, marshal, and the failure on his part to pay it over, have been proved, except as to the sum of$12.32, which should be credited on the claim. The answer on behalf of the llureties sets up certain dealings between the plaintiff and Blythe, which they claim dischargethem. It appears from the evidence that in July, 1883, Blythewas removed from office as marshal; that he called on the plaintiff and told him that he had collected these costs, but that he was put to such heavy expenses attending the removal from his office, such :as paying house-rent and other charges, that he was compelled to use the money. He promised, however, to pay it as soon as he returned to his home in the interior of the state. It does not appear what reply plaintiff made to this. This suit began 25th February, 1887. In order to discharge a surety short of the payment of the debt there must be some dealing on the part of the creditor and the principal changing the cause of action, or suspending the right of action. Perhaps, in s court of equity, .unreasonable and inexcusable delay on the part of the creditor, working injury to the surety, may operate so as to discharge him. In this court there must be a contract to give time; that is, an agree-
ment up'onconsideration binding' 'on the creditor. Mere delay,' without such a contract, will not discharge the sureties. Hunt v. U. S., 1 Ga11.32; LocTcev.rJ. S;, 3 Mason, 446; King v. Baldwin, 2 Johns. Ch. 559; 2 Amer. Leaa. ;Cas. 105. If'delaybe relied on it must be shown to have operated as an injury to the surety. Hampton v. Levy, 1 McCord, Eq. 107; Smith v. Tunno, Id. 443. In this case there was delay on the part of the plaintiff, but nothing in the shape of an agreement to give time appears. No evidence whatever is offered showing that the sureties have been injured by the delny. They are not discharged, and plaintiff is entitled to a verdict against them, as well as against their principal. There is no evidence of any demand, however,on the part of the plaintiff. He will be allowed interest on his claim, but as against the he get interest only from the date of the filing of the summons in this case,-25thFebruary, 1887. U. S. v. Ourtis, 100 U. S. 119." The more difficult question is as to the form of the judgment. Shall itbefortbe penalty of the bond? "Or shall it be for the sum allowed above with interest? In South Carolina, before the adoption of Code of Procedure, it was the practice the official bond of the publicofficer either in the name of the state or of any person injured by act of the officer. If the verdict was against the defendant, judgment was entered on the penalty. Inasmuch as suit' could be brought by any party'agatLarge, 384,) ,all suits Were consolidated, and the judgment for the penalty inured' for the benefit of such consolidated suits without priority between them, (Treasurers v. Bates. 2 Bailey, 379, 1 Hill, S. C. 409; Mitchell v.Laurens, 7 Rich. Law, llL) The judg., ment for the penalty is eiltered as security for the several sums assessed for breaches of the condition. This judgment takes priority over any judgment subsequently obtained Against the defendants, eventhongh the assessment damages be ma4e dn a suggestion subsequent to the second jUdgUleht. Norton v. 4 Strob. 357. , In Statev. Moses, 18 S. C. 366, decided after the adoption of the Code, the action was I;lame Of the 'state, verdict for the penalty, judgment accordingly. On appeal it was held that it was proJ?er in cases of this kind-that is, in suits by the obligee of the bond (the state)-to take a verdict (or the penalty, and to enter judgment on the penalty for the ob ligee for tbe of all partieR injured by breach of the conditionof the bond. That thereupon, to avoid a: multiplicity ofsuits, and secure equality among claHnants, an order should published requiring them to come in by a day certain, prove a share in the proceeds of the execution. The counsel f9r the plaintiff in this case upon the court that this is the practice we must observe under section 9H, Rev. St. U.S. This case of Statey. Moses goes beyond the cases cited above of TreaBtirersy. Bates, Mitchell v. Laurens, and others. Theseconsolidated existing suits, and brougnt tliem into one judgment on the bond. State v; MoseB invites thepresentationo( claims not yet in court. There is but one case pending on this' Iharshal's'hond besides this. That is U. S. v. 'Blythe. In it the prayer Isnot for the pemiIty, but for the breach
of the bond. It was said, at the hea.ring, that there are other claims not yet sued. State v. was decided by a court which can administer at thtl same time and in pleadings legal and equitable r,elief·. In order ,to avoid a multiplicity of suits, l!.nd equitably administer assets, it can give judgment,call in creditors, and distribute a fund pro rata, if need be. I baYe serious doubts if this qOlilrt, as a court oflawonly, can administer this relief, and if the practice. so laid down can be follo:wed. Congress has legislated on this subject. Rev. St. §§ 784, 785. Let us <:pmpare thew with the statute law of this state. The cases in South Carolina pro<;eed under act 6, St. at Large, 384', reproduced in the General Statutes, §450. It is in these wor4s: "The pond of any public officer in this state may at all times be sued on by the public, any corporation' or private Pllrson aggrieved by any duct ofany such public officer." All that the person aggrieved has to do is to applyfor a certified copy of the bond, towpich he is entitled by right. Upon this act the case of Treasurers v. Bates built up, the tice, almost by way oflegislating upon it. Norton v. Mulligan,4 Strob. 357. The language used by congress in giving the relief is more full and precise. Sections 784,785, Rev. St. It is to be regretted that in the construction of these sections we c/tn optain but little aid from judicial dech:ions. Of the ca,ses cited in argument, Wetmore v. Rice,l Biss. 237, in which judgment was, entered for the penalty of the bond, really decides thatsuit can be brought in the Upited States courts by a party in his own name, and without regard to citizenship. EverythinK else isobiterdktum. U. S.' v. Davidson, Id. 433, decides that suit may be brought in the name of the United States or of the private person. Adlerv. Newcomb, 2 Dill. 40, simply lays down the doctrine that judgment must be for the amount recovered, and not for the penalty. In Cox v. U. S., 6 Pet. 172, the claim was for $15,000, judgment was for the penalty $20,000. It was held erroneous. In Farrar v. U. S., I> Pet. 373, the judgment was for the breach, which exceeded the penalty. It was set aside. We must therefore construe the sections for ourselves. Section 784 says, in case of a breach ofa condition of the marshalls bond "any person thereby injured may institute in his own name, and for hissole use, a suit on shall be legally assaid bond, and thereupon recover such sessed, with costs of suit, for which execution shall issue in due form." The suit may be "in his own name," that is to say, it need not be in the name of the United States, and it must be for his sole use. If so no one else can come in. The results of the suit are his own. Therefore the section provides that he shall recover I not the penalty of the bond, but such damagea as shall be legally assessed. The execution issues" for these damages so assessed." As the execution is the mode provided for enforcing and 'satisfying the judgment, (2 Tidd. Pl'. 993,) when this execution-which is for the damages so assessed, and costs-is paid, the judgment itself is satisfied. Section 785 pmvides'''that the said bond shall remain after any judgUlent rendered thereon the benefit of any pers()Jlinjured
by the breach of the condition of the same until the whole penalty has been recovered; and the proceedings shall always be as directed in the preceding section,"-that is to say, such injured person may bring suit on the bond notwithstanding the judgment already had on it, in his own name, for his sale use, and may recover such damages as shall be legally assessed, "such suits to continue until the whole penalty is recovered," -that is, until the sum total of the recoveries equals the penalty. If the suits "shall continue until the whole penalty is recovered" it is clear that the whole penalty is not recovered in the first suit. In the case of U. S. v. Curtis, 100 U. S. 119, action was brought on the bond of a paymaster, and breach assigned, was the default in $3,320.83. and interest. Verdict and judgment were for the breach, and not for the penalty. In New York it il;l said that on an official bon'd judgment shall be for the damages, and not for the penalty. O'Connor v. Such, 9 Bosw. 318; Haward v. Parley, 18 Abb. Pro 260. In South Carolina, in courts whose civil jurisdiction is limited to $100 and under, ajudgment can be had on the condition of a bond if the judgment be under $100, although the penalty greatly exceed that amount. Code, § 74: Construing these sections, therefore, I am of tbe opinion that a person aggrieved by tbe action of the marshal may sue on bis bond in bis own name, or tbe suit may be in the name of tbe United States. If the suit be in the name of the United States, the judgment is for the penalty; and, as the United States holds tbe bond for the protection of all con.eerned, it may be that the judgment may remain as security for any person aggrieved, who may come in under it, and suggest his interest. This would be the procedure under the practice in this state. Treasurers V. Bates, 2 Bailey, 362; Norton v. MuUigan, 4 Strob. 356. If, however, the suit be brought in the name of a private person, it is for his sale use. His recovery is the damages legally assessed, and for tbis he issues his execution. Let plaintiff have judgment against each surety in the Bum of $175.43, with interest from the 25th day of February, 1887, and costs.
STANTON'll. UNITED STATES.
(Olrcuit Court, D. Connecticut. January 14, 1889.
DISTRICT ATTORNEYS-CLAIMS-JURISDICTION OF COURT.
Under act Congo March 8, 1887, authorizing suits to be brought against theUnited t;tates to recover items in the account of a district attorney suspended or disallowed by the accounting officer, and providing that the courts "herein mentioned" shall not have jurisdiction "to hear and determine other claima which have heretofore been rejected or reported on adversely by any court, department, or commission authorized to hear and determine the same," a district attorney is not concluded by the rejection of items in his bill by thedepartment having charge of the auditin'g of the accounts of district at· torneys. Under Rev. St. U. S. § 824, providing for the compensation of district attor· neys for the examination before a jUdge or commissioner of persons charged
ON COMMISSIONER BEFORE ARREST.