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Brown v. Lester.

ALBERT G. BROWN, Governor, use of R. B. ELLIS, vs. STERLING
H. LESTER.

The clerk of the circuit court is required to give bond conditioned for the faithful performance of the duties of his office; whatever, therefore, is a duty required by law is covered by the condition; and a failure to discharge such duty is a breach of the bond, for which the injured party may recover damages commensurate to the injury.

It is, under the statutes of this state, the duty of the clerk of the circuit court to make out proper dockets of causes in the order required by the law; and a breach of this duty is a breach of his bond, for which he will be liable in an action to any party injured thereby.

In an action on the official bond of a clerk of the circuit court, the plaintiff alleged as a breach that he had instituted his suit, (the parties to which and cause of action he described,) to a particular term at which it was brought to issue, and he was entitled to a trial, and would have obtained a judgment at the next term, had the case been put on the docket; but the clerk omitted to place it there, by which omission he lost the opportunity of a judgment at that term, and thereby lost his debt by reason of his debtor's insolvency, which, if he had obtained judgment at the proper time, would not have been the case: Held, that the breach was well assigned, and exhibited a cause of action against the clerk.

The omission to discharge a duty prescribed by a directory statute, may not vitiate the proceedings of the officer as to third persons; but he is liable to any party injured by his failure.

In an action on the official bond of a clerk of the circuit court, the suit must be brought in the name of the governor of the state for the use of the aggrieved party; where, therefore, a suit has been instituted by one for the use of another, and the latter desires to sue for neglect of the clerk in the conduct of the suit, on his official bond, he must institute the suit in the governor's name, for his own use, and not for that of the nominal plaintiff.

IN error from the circuit court of Lowndes county; Hon. Francis M. Rogers, judge.

The opinion sufficiently states the facts.

Brown v. Lester.

Isham Harrison, Jr., for plaintiff in error,

Cited and commented on 7 S. & M. 649; Rev. Code, 126, § 101; Hutch. Dig. 736, § 101; Ib. 475, 476; Ib. 738, a. 3; Rev. Code, 247; H. & H. 488, § 37; Hutch. Dig. 738, § 4; Act 1830, p. 163, § 4.

Harris and Harrison, for defendant in error,

Reviewed the statutes, and cited 1 How. (Miss.) R. 41; 3 Ib. 165; 3 S. & M. 234-248; Day v. Graham, 1 Gilman, 435; 6 Wend. 486; Smith's Com. § 670, 671; 3 Iredell, 23; 8 Vern. 280; Neal v. Gaines, 1 Stew. 159.

Mr. Chief Justice SHARKEY delivered the opinion of the court. This action was brought to recover damages for a breach of the official bond of defendant, given as clerk of the circuit court. The statute requires the clerks to give bonds, which may be put in suit by any person injured. The condition of the bond is for the faithful performance of the duties of the office, and for seasonably recording the judgments, decrees, and orders of the court, &c. Hutch. Code, 432. Whatever, therefore, is a duty required by law, is covered by the condition; and a failure to discharge a duty which is required, is a breach of the bond, for which the injured party may recover damages commensurate to the injury.

The breach assigned is, a failure to place on the issue docket a suit commenced by the plaintiff at the preceding term, which was at issue, whereby plaintiff failed to obtain a judgment, and lost his debt by the insolvency of the defendant in the suit.

The defendant demurred to the declaration, and assigned causes; the demurrer was sustained, and to reverse that judgment, the writ of error is prosecuted.

The first act which requires a docket to be made out is found in the revised code. It expressly requires the clerk, before every term of the court, to enter in a docket all causes, (and those only) in which an issue is to be tried, in the same order in which they stand in the proceedings. Rev. Code, 126, § 101.

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Brown v. Lester.

The act of 1823 makes it the duty of the clerk, in making out his issue docket, to set causes for particular days, and to issue subpœnas accordingly. Rev. Code, 247. The act of 1824 declares that the court shall take up the causes in their order, as they stand upon the docket. The act of 1825 makes it the duty of the clerk to make out a separate docket for state causes, which is to be taken up on motion of the district attorney. Hutch. Code, 737, 738. By these acts it will be seen that the clerk is bound to make out proper dockets. This is an important duty which can in no wise be omitted. It is indispensable as a guide to the court, which cannot otherwise proceed regularly in the mode prescribed by law. Not only is it important to the court, but to suitors also in various ways. To prepare a docket which shall contain, in their order, all the causes that properly belong to it, is a duty covered by the condition of the bond.

A further question is, Has the breach been well assigned? The assignment is made with great particularity, perhaps with more than is necessary. The plaintiff avers that he had instituted suit at a particular term, and describes the parties and the cause of action, which was brought to issue at the first term; that he was entitled to a trial at the next term, but the clerk omitted entirely to place it on the docket; that if it had been placed there, he would have obtained a judgment, but failed to do so in consequence of the neglect, whereby he lost his debt by the insolvency of the defendant in that suit, which he would not have done if he had obtained this judgment. The plaintiff seems to have brought himself fully within the rule for assigning breaches by stating specifically in what particular the breach occurred, and how he was injured thereby.

But it is objected that the statutes are only directory, and that no suit can be maintained for a violation of the directions. The omission to discharge a duty prescribed by a directory statute, may not vitiate the proceedings of the officer as to third persons, but certainly he is liable to any party injured by his failure.

Another objection taken on the demurrer is, that the plaintiff does not show a cause of action in himself, Weaver being a

West Feliciana Railroad Company v. Stockett.

necessary party plaintiff. The suit, which was omitted to be docketed was in the name of Weaver for the use of the plaintiff. Weaver was but a nominal party to the first suit; the plaintiff was the party beneficially interested, and the party who has sustained the injury. Suits on these bonds must be brought by the party who has been injured; Weaver has sustained no injury, and is not a necessary party. The suit must be brought in the name of the governor, for the use of the injured party.

The other causes of demurrer relate to the certainty with which the breach has been assigned, and fall within the remarks on that subject. We are therefore of opinion that, in pleading, the plaintiff has set out a good cause of action. Whether he can sustain it by proof, is a different question.

Judgment reversed, and cause remanded.

WEST FELICIANA RAILROAD COMPANY VS. SAMUEL STOCKETT, Administrator of E. Stockett, deceased.

The 12th section of the act of limitations of 24th of February, A. D. 1844, which provides that no action at law or in equity shall be brought against an executor or administrator, after the expiration of four years from the qualification of such executor or administrator, is prospective, and applies only to administrators appointed after the passage of the act.

Were it otherwise, and the act to be construed to embrace administrators ap pointed prior to its passage, and the limitation to commence running as to them from the passage of the act, it would not apply to a case where letters of administration had been granted less than nine months before the act took effect, until those nine months had fully elapsed; because, until their lapse, no right of action existed in the creditor, and the limitation had nothing until then to take effect upon.

The legislature may pass an act of limitations, which shall apply to existing causes of action, but some reasonable time should be allowed, within which suits may be brought; but if the act is silent as to any such intention, it cannot be construed to apply to cases where such construction would cut off all remedy.

West Feliciana Railroad Company v. Stockett.

On appeal from the circuit court of Wilkinson county; Hon. Stanhope Posey, judge.

The West Feliciana Railroad Company sued Samuel Stockett, as administrator, upon a note made by E. Stockett, deceased. The defence was the statute of limitations. The jury found for the defendant, and the plaintiff appealed. The opinion states the facts.

C. C. Cage, for appellant,

Reviewed the statutes, and cited Abbott v. McElroy, 10 S. & M. 100.

Gordon and C. Posey, for appellee,

Cited Hutch. Code, 669, § 105; Ib. 831, § 12; Ib. 674, § 1; Robertson v. Alford, MS.; Dowell v. Webber, 2 S. & M. 452; 13 Wend. Rep. 267; Greenway v. Hunter, Meigs, Rep. 73; Dawes, Judge, v. Shed et al. Ex'rs, 15 Mass. 6; 11 Maine Rep. 150; 14 Ib. 254; 16 Mass. Rep. 429; Ang. Lim. 167 (n.)

Mr. Chief Justice SHARKEY delivered the opinion of the court. The plaintiff in error sued on a promissory note, made by 'defendant's intestate, dated the 16th of May, 1842, and payable on the first of November of the same year. The defendant relied upon the statute of limitations of four years, and obtained a verdict.

By the act of 1822, actions on notes were limited to six years. This provision has not been changed. As the suit was brought on the first of June, 1848, six years had not elapsed from the maturity of the note. But by the act of the 24th of Feb. 1844, it is provided that no action at law or in equity shall be brought against an executor or administrator, after the expiration of four years from the qualification of such executor or administrator.

Administration was taken out in this instance, before the passage of the act of 1844, viz. on the 13th of Nov. 1843. More than four years had elapsed from the date of this statute until the institution of the suit, but the question is, At what time did the statute begin to run on this claim?

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