TITLE 4. Against cer officers. S96. Actions against the officers named in the preceding ninetysecond section of this Title, shall be brought against them individually, tain public specifying in the process, pleadings and proceedings, their name of office; and such actions may be commenced in the same manner as against individuals; but the defendants shall not be held to bail in any case unless upon the order of a judge of the court in which the action is commenced, founded upon proof by affidavit, that the same is brought for some personal misconduct in office, or upon some personal liability assumed or incurred, by such defendants in their official character. When not to be held to bail. On contracts of predoces Pien in abate. ment. Abatement of suits by ofli $97. In actions against county superintendents of the poor of any county, and against overseers of the poor of any town, to enforce any liability of such county or town, or to recover any sum of money, damages or expenses, which such county or town may be liable to pay, the defendants shall not be held to bail. $98. When any contract shall have been entered into, or any liability shall have been incurred, by or in behalf of any county or town, by any officer thereof within the scope of his authority, the same remedies may be had against any successor of such officer, in his official character, as might have been had against such officer, if he had continued in office. $99. In suits against any of the officers named in this Article, the omission to name any other officer in the process or declaration, may be pleaded in abatement; and if not so pleaded, such omission shall be deemed to have been waived, and shall not be objected in any other stage of the proceedings. $100. No suit commenced by or against any officers named in cer's death, this Article, shall be abated or discontinued by the death of such officers, their removal from, or resignation of, their officers, or the expiration of their term of office; but the court in which any such action shall be pending, shall substitute the names of the successors in such office, upon the application of such successors, or of the adverse party. Substituting defendant. Certain judg ments to bo S101. But before any new defendant shall be so substituted without his consent, at least fourteen days' notice of the application for that purpose, shall be personally served on him. $ 102. If judgment be rendered for any debt, damages or costs, laid before against the board of supervisors of a county, against the county susupervisors. perintendents of the poor of any county, against any town or the su pervisor thereof, or the overseers of the poor thereof, on account of the liability of such county or town; and such judgment be not suspended by writ of error or otherwise, or be not paid and satisfied before the next annual meeting of the board of supervisors of the county, a certified copy of the docket of such judgment, or the record thereof, if required by such board, shall be laid before the board of ART. 4. supervisors of the county at some annual meeting thereof. ed like taxes. $103. The board of supervisors shall add the amount of such To be collect judgment, together with interest thereon from the time of recovery, to the first Monday in February then next, and also the expenses of the certified copy of the docket or record of judgment mentioned in the preceding section, to the tax to be laid upon the county or town against which, or against the officers of which, such recovery shall have been had; which sums shall be assessed, levied and collected, as other contingent charges of such town or county, and shall be paid by the county treasurer, to the person recovering such judg ment. paid by coun ty treasurer. $104. But if the treasurer of the county, against which, or against When to be whose officers, such judgment shall be had, have sufficient monies in his hands belonging to such county, not otherwise specifically appropriated, he shall be bound to pay the amount of such judgment, upon the production of a certified copy of the docket thereof, or of the record, if required; and if he shall fail to do so on demand, he shall be personally liable for the amount of such judgment, with the interest, to be recovered in an action by the party in whose favor such judgment was rendered, or his representatives. pervisor and $105. If the supervisor of a town or the overseers of the poor of a when by su town, against whom any judgment shall have been rendered, which overseers. shall not be suspended by writ of error or otherwise, have sufficient monies in their hands belonging to their town, not specially appropriated, they shall in like manner pay the amount of such judgment and the interest thereon, upon the like evidence; and for a failure so to do, they shall in like manner be responsible personally to the party in whose favor such judgment was obtained. sor. S106. If the recovery be had against a town in its own name, the By supervisupervisor thereof shall, in like manner and upon the like evidence, pay the amount thereof with interest, out of any monies in his hands belonging to such town, not specially appropriated; and for a failure to do so, shall be personally responsible for such amount, to the party in whose favor such judgment was obtained. tion not to S 107. When a judgment shall be recovered against the board of When execu supervisors, or the county superintendents of the poor, of any county, issue." or against any town, or the supervisor or the overseers of the poor thereof, no execution shall be awarded or issued upon such judgment, unless the same shall have been rendered for the costs of a suit commenced by any of the said officers in their individual names; in which cases, such costs shall be collected of the plaintiffs individually, and the amount thereof shall be allowed to them in their account of offi To issue -. gainst certain TITLE 5. cial expenditures, by the board authorised to audit such accounts, if such suit appear to have been necessarily commenced in good faith. $108. In suits by and against loan-officers, commissioners of loans, officers. commissioners of common schools, and commissioners of highways, trustees of school districts, and trustees of gospel and school lots, the debt, damages or costs recovered against them, shall be collected in the same manner as against individuals; and the amount so collected, shall be allowed to them in their official accounts. Application to sue she riff's bond. Proof to sup port it. Suit when and how brought. TITLE V. OF SUITS AGAINST SHERIFFS, SURROGATES AND OTHER OFFICERS, SEC. I. When and to whom application for leave to sue sheriff's bond. 2. Proof and papers to accompany application. 3. Order for prosecution; suit how to be brought. 5. Judgment not to bar suits for other delinquencies. 6. Other parties may apply during suit or after judgment. 7. Suits by them not to be affected by other suits or judgments. 8. Same plaintiff may sue for new delinquency. 9. Scire facias upon judgments for delinquency prohibited. 10. Suits on such bonds private suits, &c. 11. Judgment and costs against relator as plaintiff. 12. Matters necessary to be stated with plea of judgment recovered. 13. In what cases sureties to be acquitted on such plea. 14. When to be acquitted of a portion of the claim. 15. Direction on execution against sheriff and sureties. 16. When execution against bodies to issue. 17 & 18. Distribution of monies collected among several plaintiffs. 20. Proof to support it; suit how to be prosecuted. 21. Proceedings in suits on bonds of register and assistant. $1. Whenever a sheriff shall have become liable for the escape of $ 2. Such application shall be accompanied by proof of the default or delinquency complained of, and that no satisfaction for the same has been received; and by a certified copy of such official bond. § 3. Upon such application and proof, the court shall order that such bond be prosecuted; and the applicant shall thereupon be authorised to prosecute the same, in the said supreme court only, in the name of the people of this state, stating in the process, pleadings, proceedings and record in such action, that the same is brought on the relation of such applicant. (32) 1 R. L. p. 421, § 6; Laws of 1827, p. 219, § 5. § 4. In such actions, the same pleadings and proceedings shall be TITLE 5. had, as are provided by law in the case of suits upon bonds, with other Pleadings, conditions than for the payment of money, except as herein otherwise &c. therein. provided, and judgment shall be rendered for the defendants, in the like cases. quencies not § 5. But such judgment shall not be a bar to any other suit that Other delinmay be brought on the same official bond, by the same plaintiff, or by affected. any other plaintiff, for any other delinquency or default of such sheriff, than such as was assigned as a breach of the condition of such bond, in the action in which such judgment was rendered.33 may sue. $ 6. During the pendency of any suit upon such official bond, or Other parties after judgment rendered in such suit, any other party aggrieved by the default or delinquency of such sheriff, may, in like manner, apply to the supreme court for leave to prosecute such official bond. S7. Upon such leave being granted, the applicant may prosecute Not affected such bond, in the manner herein before provided; and the pendency of any other suit, at the relation of any other person, on the same bond, or a judgment recovered by or against any other person on such bond, shall not abate, or in any manner affect such suit, or the proceedings therein, except as herein provided. by other suits plaintiff' may $8. Any person who may have recovered any judgment upon When samo such official bond, may, in like manner, apply for leave again to pro- sue. secute such bond, whenever he is aggrieved by any other default or delinquency than such as shall have been the subject of the former action, and shall proceed therein in like manner as herein before provided. not to be $9. No scire facias shall be brought upon any judgment render- Scire facias ed upon such official bond, by the party at whose relation such judg- brought. ment was obtained, or by any other person, for any breach of the condition of such bond. private suits. $ 10. Every suit brought upon such official bond, and every judg- Such actions ment rendered therein, shall be deemed the private suit and judgment of the party on whose relation the same shall be brought or obtained; such suit may be discontinued and the relator may be non-suited, as in private suits; and the judgment therein may be cancelled and discharged by the relator, in the same manner as if he were the nominal plaintiff, and shall be deemed satisfied, in the same cases as judgments by individuals. against rela $ 11. If the suit be discontinued, or the relator be non-suited, or Judgment judgment be rendered for the defendants, upon verdict, demurrer, or tor. otherwise, costs shall be awarded against the relator, as if he were the nominal plaintiff, and judgment shall be rendered for such costs, and execution thereon awarded against him, in the same manner. (33) Laws of 1827, § 7. TITLE 5. Plea of judg meat recover ed, when not good. When sure ties to be acquitted. When of a portion. $12. No such suit shall be barred, nor shall the amount which the plaintiff may be entitled to recover therein be affected, by any plea or notice made by any surety in such bond, of a judgment recovered thereon, unless it be accompanied by an allegation that the sureties in such bond, some or one of them, have been obliged to pay the damages assessed in such judgment, or some part thereof, for the want of sufficient property of such sheriff whereon to levy the same, or that they will be obliged to pay the same, or some part thereof, for the same reason; nor unless such plea or notice be verified by the oath of the defendant making the same. S 13. If it appear that the amount of any damages so recovered, which such surety has been obliged to pay, or will be obliged to pay, as specified in the last section, is equal to the amount for which such defendant shall be liable, by virtue of the bond, he shall be acquitted and discharged of all further liability, and judgment shall be rendered in his favor. S 14. If it shall appear that the amount of any damages so recovered, and which such surety has been obliged to pay, or which he will be obliged to pay, is not equal to the amount of such surety's liability, the amount thereof shall be allowed to such defendant, in estimating the extent of his liability in any such action. Direction on $ 15. Whenever a judgment shall be obtained against a sheriff and execution. Execution against bo dieɛ. ments; distri his sureties, a direction shall be endorsed on the execution issued thereon, by the attorney issuing the same, to levy the amount of such execution, in the first place, of the property of such sheriff, and if sufficient property of such sheriff cannot be found to satisfy such execution, then to levy the deficiency of the property of the sureties.34 $ 16. In every such case of a judgment against a sheriff and his sureties, no execution against the bodies of the defendants shall be issued, until an execution against their property shall have been returned unsatisfied, in whole or in part. Several judg$17. Whenever several judgments shall be obtained at the same bution. term, upon any official bond of a sheriff, for damages amounting in the whole to more than the sums for which the sureties therein shall be liable, the supreme court shall order the monies levied upon such judgments, from the property of the sureties, to be distributed to the relators respectively in such judgments, in proportion to the amount of their respective recoveries.35 Ib. monies collocted. $ 18. If executions be issued upon several judgments obtained at the same term, upon any such official bond, and sufficient monies shall not be raised to satisfy all of the said executions, the supreme court shall distribute the monies collected on such executions, to the rela (34) Laws of 1827, § 7. (35) 1 R. L. p. 422, § 6. |