majority">MANNING, J.—

By virtue of the statute in such cases provided, appellee Caffey sued.appellant Johnson, late sheriff of Montgomery county, and the other appellants as sureties on his official bond, for injury suffered by plaintiff from the wrongful acts of Johnson, done under color of his office as sheriff, in seizing and selling property of defendant, to satisfy a writ of execution against another and different person. The demurrer filed to the first complaint and afterwards put in again to the amended complaint, was not insisted upon in the argument; and was properly overruled.

The argument here relates to the liability of the sureties upon the bond on which the suit is founded. This bond was made a year or two after Johnson had been elected to—and entered upon—the office of sheriff, and after two other bonds had been. successively executed by him and other sureties, for his fidelity in discharging its duties. In form the bond is unimpeachable; and it was taken, approved and filed by the judge of probate, upon whom the duty of performing *333those acts on behalf of the- public, is imposed by statute. But the objection to it is—that it was executed after two others had been made and delivered—without an application in writing made and sworn to, by any surety to either of them, and without any complaint made by a grand jury, or members of the Court of County Commissioners, that the bonds previously given were insufficient or defective. Upon these grounds it is insisted that this is, therefore, not a statutory official bond of Johnson,—and that it cannot have force as a common law obligation, because (as argued), it is not supported by any consideration.

In reference to this last defence, it is sufficient to say that there is no plea upon which it can rest. It is only by a special plea, that a defendant may “ impeach or inquire into the consideration of a sealed instrument.”—Code of 1876, § 2981 (2632.) There is no such plea,'nor is there any plea of' non est factum filed in this cause. The question comes up only upon exceptions to the introduction of the bond sued on as evidence, and to the refusal to exclude it afterwards. And since it was charged in the complaint that the joint liability of the defendants was based upon their having executed the bond, and it was set forth in the complaint as the foundation of the action, and no plea was filed denying that defendants had made it, or otherwise impeaching its validity,—no reason is shown why it should not have gone to the jury. According to the issue joined, the contention in the court below must have been over the charge that the sheriff had under color of his office, committed the wrongful acts complained of. But no questions upon the sufficiency of the evidence to this point, or upon the correctness of the charges of the court to the jury, are presented by this record.

It can not be admitted that the bond would be invalid, because not executed upon a requisition founded on the petition of a surety, or report of a grand jury, or of commissioners, if that question were presented by the pleadings. There is nothing to prevent a sheriff, or other public officer, and. other persons as his sureties, from voluntarily executing a new bond,—or to hinder the officer representing the public, from accepting it,—to secure the faithful performance of' official duties. The presumption would, perhaps, be that the principal was induced, in such a case, to procure the new bond to be made, to satisfy sureties upon one previously executed. The evidence shows that such was the prompting-motive in the present case. There is no error in the record..

Let the judgment be affirmed’.

Stone, J., not sitting.

Citation profile

How this case has been treated — in progress