I am unable to concur in the opinion of the Chief Justice. This is an action by the State on three official bonds of A.F. Free, as treasurer of Barnwell County. The defenses before this Court are estoppel by former judgment and the statute of limitations. A judgment was heretofore obtained against the same parties, except Peacock, on two other official bonds of Free, both given after the bonds involved in this suit. The plea *Page 211 of estoppel is based on this judgment. It is not claimed that the defaults here alleged under the bonds in suit in this case were actually set up in the suit on the later bonds from which the former judgment resulted, but only that they might have been set up. In the former suit the judgment was not entered for the penalty of the bonds, but for the actual supposed default under them. It is true, in that suit on the last two bonds judgment might have been entered for the entire penalty, under which all claimants might have proven their demands, and it is also true that the sureties on those bonds were liable for continuing defaults standing against the treasurer when they were given. But sureties on the bonds in force when the default first occurred are also liable. State v. Moses, 18 S.C. 372. We know of no rule of law which requires the State to sue all the bonds in one action. Even if judgment had been entered for the entire penalty on the last two bonds in the former suit, the State could still have sued the first three bonds, for they were not annulled by the giving of the last two bonds, nor merged in any judgment recovered on them.
The vice in the argument of the respondent is in assuming that the State could not elect to collect actual defaults occurring under the first three bonds by suit on those three bonds, even after judgment on the last two. If an official bond is not nullified by the giving of a subsequent bond or merged in the new bond, then it is not for the sureties to say that the State as an injured party may not sue the first bonds for a default occurring under it, because the State has either from choice or mistake not proved its claim in a suit on the last, when it might have done so.
If the sureties were the same on all the bonds, we do not see how that could be any reason for denying to the State the right to enter judgment for the penalties of all the bonds in one action or several; but in this case the sureties are not all the same, and cases may arise where it would be of the utmost practical importance to enter a separate judgment for the penalty of each bond in a separate action. I can discover *Page 212 no principle upon which the right to do so can be denied. The period of limitation of an official bond is twenty years, and this action is, therefore, not barred by the statute.
I think the judgment of the Circuit Court should be reversed.