Guffin v. Ingram

.Willard, A. J.,

dissenting. The plaintiff sues as Sheriff upon a bond given to his predecessor in office and turned over to him as Sheriff. The plaintiff was nonsuited, and now moves to set the nonsuit aside. Cason, the late Sheriff, levied on property of N. Ingram, under an execution against his property, and left the property in the possession of the judgment debtor, taking an obligation on the part of Ingram, in which the defendants joined as sureties, to the effect that the property should be returned to the” Sheriff at any time on demand. The instrument in question was sealed, and contained a penalty or an ascertained sum of money, and must be regarded as a bond.

It appears that the bond was forfeited; that the property is wasted and lost, and that the judgment debtor has died insolvent.

No question is made as to the right of Cason, the late Sheriff, to sue upon the bond; but it is said that it is not assignable, and has not been, in fact, assigned, and that the present Sheriff had no right of action upon it. Section 16, at page 160, of the General Statutes provides: “That it shall be the duty of every Sheriff to turn over to his successor all the furniture appertaining to his office, the original writ book and sale book, and also the original execution book, or a correct certified copy thereof, and also all original bonds officially taken by him, also all mesne process not served, and all final process partially or wholly unexecuted.”

Section 55, on page 168, of the General Statutes refers to this Section as if the additional words “other papers” were contained in it.

It is clear that the statute intended not only to make all bonds answering the description assignable, but also to make the act of turning them over a good and valid assignment of them. Unless it means this, it is without practical efficiency to accomplish the end *256intended, namely, to put the new Sheriff in the same position as that occupied by the retiring Sheriff as regards the possession of the means of enforcing the process of the Court.

The only question that remains is, whether the bond' in suit is of the class included in those described by the Act.

The Act embraces all bonds taken by him officially — that is in the character of Sheriff There is nothing in the language or intent of the statute to confine it to bonds which the Sheriff is specially authorized to take by law. Such is not the plain import, while the intent of the statute demands the fullest transfer of all that may be essential to the protection of the judgment creditor.

The bond in suit is undoubtedly within the description, and must therefore be regarded both as assignable and as already assigned.

The nonsuit should be set aside and the cause remanded for further proceedings.