Wilkinson County MsArchives Court.....Carmichael, Mr 1839
************************************************
Copyright.  All rights reserved.
http://usgwarchives.net/copyright.htm
http://usgwarchives.net/ms/msfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Deb Haines ddhaines@gmail.com December 8, 2005, 9:41 am

Source: Reports Of Cases Argued And Determined In The High Court Of Errors And Appeals Of The State Of Mississippi
Written: 1839

Carmichael, Appellant, v. The Governor et al.

pages 236-239

In an action on a sheriff's bond for failure to pay over money, it is not 
necessary to aver in the declaration, that the chief justice of the county 
court had approved of the sureties and administered the oath, and if 
necessary, the omission can only be taken advantage of by demurrer, it being a 
defective statement of title, and not a defective title. The endorsement of 
the chief justice is merely evidence, that the law has been complied with.

The declaration should aver, that the money mentioned in the breach of the 
bond assigned was collected by the sheriff, daring his continuance in office 
and under legal process.

Judgment against a sheriff on motion to pay over money, is not evidence in an 
action against the sureties on the sheriff's bond to establish the breach 
thereof, in failing to pay over the money.

APPEAL from the circuit court of Wilkinson county.

This was an action of debt, instituted by the governor of the state, at the 
instance of William Stamps, who sued for the use of the West Feliciana Rail 
Road Company, against the appellant, as one of the sureties in the sheriff’s 
bond, of John Slade, sheriff of said county, for failing to pay over the 
proceeds of an execution, by him collected and returned satisfied.

Winchester, for the appellant.
Henderson and Boyd, contra.

Mr. Chief Justice SHARKEY delivered the opinion of the court.

This action was instituted by the appellees against the appellant on a 
sheriff’s bond, in which the appellant was surety for the sheriff. A demurrer 
was interposed to the declaration, which, it is agreed, was either sustained 
or confessed: the record shows no disposition of it. After the demurrer was 
sustained, the parties had leave to amend, and did amend, and the defendant 
failing to plead, judgment by default was taken, and damages asessed by a 
jury. It does not appear that an amendment was made in the declaration by the 
record, but this fact, also, is admitted by the agreement. At the execution of 
the writ of inquiry, the defendant appeared by counsel, and contested the 
admissibility of testimony, and requested the court to charge the jury, and 
being overruled, took his bill of exceptions, which discloses part of the 
ground relied on to reverse the judgment.

The case as it is presented by the record, stands with the declaration without 
amendment, and a demurrer thereto undisposed of, and a judgment by default, 
and inquiry of damages; it is only by the agreement, that we are informed that 
the demurrer disposed of; and the declaration amended.

The first ground taken is, that the declaration is so wholl defective in the 
statement of a cause of action, that no judgment could be rendered. It is 
insisted, that it was necessary to aver in the declaration, that the chief 
justice of the county court had approved the sureties, and administered the 
oath. We do not think this was necessary, but if necessary, it was only such a 
defect as could have been taken advantage of by demurrer, being a defective 
statement of title, and not a defective title. Or if the proper endorsement 
never was made on the bond, and it was essentially necessary to its validity, 
a plea of non est factum, would have reached the defect: or if it were merely 
an escrow until the approval and endorsement of the chief justice, that fact 
might have been pleaded or given in evidence. When the sheriff has executed 
his bond with sureties who have been approved, he has done all that the law 
requires of him. The endorsement is to be made by the chief justice. Suppose 
he were to refuse to make the endorsement, although he approved the sureties, 
wou1d the bond for that reason be void? Or would it be even voidable, and if 
so, would it lie with the sheriff or his sureties to avoid it? The liability 
of the sheriff and his sureties, arises from their own act in giving the bond, 
and the endorsement is merely evidence that the requisites of the law have 
been complied with. If the defect was even a good cause of demurrer, the first 
demurrer would not reach it, but a second should have been put into the 
amended declaration, and the defect is cured by the default and inquiry of 
damages, which are equivalent to verdict on issue joined.

It was also urged, that it should have been averred in the declaration, that 
the money mentioned in the breach, was collected by the sheriff, during his 
continuance in office, under legal process. This is undoubtedly true, because 
the condition of the bond covers nothing but money so collected, but we think 
the declaration contains sufficient averments in this respect.

The only remaining point arises out of the bill of exceptions. It appears, 
that a motion had been made against the sheriff for failing to pay over the 
money for which this suit was brought, and judgment was rendered against him, 
on the motion for the amount collected, and damages. Two breaches of the 
condition of the bond were assigned; the first, for the non-payment of the 
money collected on execution, and the second, for the non-payment of the 
amount of the judgment. On the inquiry of damages, the plaintiff offered no 
other evidence to the jury, but the record of the judgment so recovered, which 
was objected to as insufficient, but the court overruled the objection.

Although there was judgment by default, the plaintiff was bound to prove the 
breaches and damages, the bond being merely inducement to the action, and not 
the foundation of it. Was the judgment against the sheriff sufficient for this 
purpose?

Judgments, when introduced to prove the mere fact that such a judgment was 
rendered, and the legal consequences, are evidence against every person; but 
when, introduced to prove a fact, upon the supposed existence of which, the 
judgment was founded, they may or may not be admissible according to 
circumstances. For the latter purpose, they are binding on parties and 
privies, but no one can be bound by a judgment, unless he be a party to the 
suit, or in privity with the party, or possess the power of making himself a 
party; for otherwise, he has not the power of protecting himself by cross-
examining witnesses or introducing testimony. 1 Starkie on Evidence, 182 to 
189. Where a party is not bound by a judgment, it cannot be evidence against 
him, to establish the fact on which it was rendered. This judgment could not 
have been introduced for the mere purpose of proving that such a judgment was 
rendered, because that fact was wholly immaterial in regard to the plaintiff’s 
case, but it must have been introduced to prove the existence of the fact on 
which it was supposed to be founded, to wit; the collection of the money by 
the sheriff under an execution, and it, therefore comes within the rule 
established by the authorities. Carmichael was no party to it, nor could he 
have made himself so, and had, therefore, no power to contest the recovery. 
The case of Carmack et al. v. The Commonwealth, for the use of Boggs, reported 
in 5 Binneoy, 184, is analogous in principle. A judgment in trover was 
recovered against the sheriff alone, and a scire facias was afterwards 
prosecuted against him and his sureties, on his official recognisance to 
recover the amount of the judgment. It was held that, although the sureties 
were liable in the original cause of action against the sheriff, yet that the 
judgment was not binding on them, nor evidence of the amount of damages, on 
the ground that they had nothing to do with the first suit. They were 
permitted to make their defence precisely as though the first suit had not 
been brought.

If the judgment was admissible in evidence, it was certainly conclusive, 
unless it was fraudulent; and the consequence wouid be, that Carmichael would 
be bound by a judgment to which he was no party, and had no opportunity of 
making defence, and which might have been different, if he had been permitted 
to defend. For these reasons, the judgment was improperly admitted as 
sufficient evidence to establish the breaches of the bond and amount of 
damages.

The judgment must be reversed and venire de novo awarded.


Source: Reports of Cases Argued and Determined in the High Court of Errors and 
Appeals of the State of Mississippi, by Volney E. Howard, Reporter to the 
State; Vol. III; Containing the Cases for December Term, 1838, and January 
Term, 1839. NEW ORLEANS: E. JOHNS & CO., STATIONERS’ HALL, 1839.

File at: http://files.usgwarchives.net/ms/wilkinson/court/carmicha57wl.txt

This file has been created by a form at http://www.poppet.org/msfiles/

File size: 9.1 Kb