Opinion
04-23-1811
Monroe (Governor) v. Redman and Others
Williams, for the appellant, Wirt, contra. Williams, in reply.
In an action upon a sheriff's official bond, in the district court of King and Queen, the writ was served on Vincent Redman, (the sheriff,) and Fouchee G. Tebbs, one of the securities; the return being that the other securities were no inhabitants. Issue was joined on the plea of nil debet; and, when the cause came on for trial, the defendants proved that the defendant Redman resided in Richmond county, out of the King and Queen district, at the time of issuing the writ; and (admitting the defendant Tebbs to have resided within the district at that time) they moved the court to dismiss the suit, as no writ of capias ad respondendum had been previously issued against the said Redman in the district in which he resided: whereupon the suit was accordingly dismissed; " The court considering that the defendant Redman was bound by the obligation for performance of a personal duty, in which the defendant Tebbs was not jointly, or jointly and severally, bound."
Note. The bond was in the usual form, binding the obligors jointly and severally, with a condition in the form prescribed by law. Rev. Code, vol. 1, c. 80, s. 10. --Note in Original Edition.
On the motion of Archibald M'Call, (the relator, for whose benefit the suit was brought,) an appeal was taken.
Judgment reversed, and cause remanded.
Williams, for the appellant, relied on the proviso in the 24th section of the district court law, as authorizing the action in this case, though one of the defendants resided out of the district.
Rev. Code, vol. 1, p. 77.
Wirt, contra. The proviso applies to bonds, or covenants, for payment of money, or for performance of joint and several contracts; but not to bonds with collateral conditions. The contract here is, that the sheriff shall perform the duties of his office; not that the securities as well as the sheriff shall.
Williams, in reply. This is certainly " a joint and several bond for the performance of a contract," viz. that the sheriff should perform his duty.
Besides, the defendant appeared and pleaded; after which it was too late to take an objection of this nature.
Bradley v. Welch, 1 Munf. 284; Williams, & c. v. Campbell, 1 Wash. (VA) 153.
The Judges, Cabell, Brooke, Roane and Fleming concurred.
OPINION
Wednesday, April 24th. The Judges, CABELL, BROOKE, ROANE and FLEMING concurred in opinion that, after issue joined, it was too late to take advantage of the non-residence of the defendant; Roane observing that he conceived the point settled in Bradley v. Welch, and the true construction of the act of assembly to be, that the writ is to be dismissed, upon condition that advantage be taken on the first calling of the cause.
N. B. No opinion was given upon the point, whether the suit might have been dismissed if the objection had been taken in time. --Note in Original Edition. Note. See 3 Tuck. Bl. Appendix, note D. p. 51, and 1 Wash. (VA) 153, 154.
Judgment unanimously reversed, and cause remanded for farther proceedings upon the issue joined.