#### *B. Williamson vs. James King, adm'r. of S. Bacot.*

1. Where a party lias once had a plain and adequate remedy at law, which he has lost *by*his own laches, it may be well doubted whether the court of equity will aid him with another remedy, of which he might also have availed himself in the ordinary form, had he acted promptly.

2. The bond given by sheriffs under the Act of 1795 may be regarded as joint and several, and either the sheriff or his representatives, may be sued alone upon it.

3. Where a sheriff has collected money, on execution, and has failed to pay over the same, an action of assumpsit will lie either against him or his administrator; and the statute of limitations does not bar the action until four years after demand is made.

*Before*Dunkin, Chancellor,

*Darlington,*

*Januani Term,*1840.

The substance of this bill is, that Samuel Bacot, deceased, was formerly sheriff of Darlington District. The complainant lodged in his office several writs and executions, in respect to which it is alleged that the sheriff failed in his duty. After the death of Bacot, the complainant called on his administrator, the defendant, “to account with him, and settle the demands and liabilities, due and incurred from and by his intestate, to him, (the complainant,) for the neglect of duty in the sheriff's office, and to pay over,” (fee., but that the defendant refused, alleging, or pretending, as the bill states, that nothing was due, (fee., and at other times, “setting up stale and complicated accounts and demands, in the name of his intestate, against the complainant.”

The bill prays that the accounts and demands pretended and set up by the defendant, as well as the liabilities and dues from the said Samuel Bacot, as sheriff, may be enquired into and ascertained ; and that an account may be stated, and the complainant have such other relief as his case requires. No discovery is sought; nor is it alleged in the bill, or at the hearing, that the estate of the intestate was insufficient to meet any demand which might be established.

Several grounds of defence are assumed by the answer; but it is only deemed necessary to consider that which insists on the adequacy of the legal remedy, and the consequent want of jurisdiction in this court. It appeared, from a statement prepared by the commissioner, under a *42former order, that the account or demand of the complainant was, exclusively, for moneys collected by him, defendant’s intestate, as sheriff, and which was proved, as the Court understood, from the entries- in the sheriff’s hooks. The statement accompanies this decree.* It is not alleged that this might not have been equally well proved at Law; but it is said the defendant set up stale and complicated demands in favour of his intestate. This would hardly give the Court jurisdiction. But the answer denies the existence or pretence of any such stale and complicated demands, and no proof to that effect was adduced.

It is hardly necessary-to say, that this is not a creditors’» bill, or bill to marshal assets. It appears to the Court, that the complainant has plain and adequate remedy at law, and that this bill must be dismissed.

*43BRIGHT WILLIAMSON, *) vs*5 Bill for account and JAMES KING, adm’r. of *j*relief. Sam. Bacot. 5

By an order of the Court of Equity, for the Cheraw Equity District, made at its last session, the accounts were referred to me, as referee, and haying had the same under reference I submit the following report:

It appears, after examining the books of Samuel Bacot, when sheriff of Darlington District, and from other evidence, that Bright Williamson had numerous claims lodged in the office of said Bacot, for collection, and much money in fact collected and paid over, or applied to his (Williamson’s) use, by the said Bacot.

Of monies collected by Samuel Bacot, as sheriff of Darl-ington District, for B. Williamson, and not paid over and applied, the balance is, (without interest,) nine hundred and eighty eight dollars and 14-100 cents ; adding the interest from first of March, A. D., 1835, to 10th January, A. D., 1840 — from the time when demand on Bacot’s administrator seems to have been made, till the sitting of the court — the amount will be one thousand three hundred and nineteen dollars and 47-100 cents; which amount I find to be due, by the administrator of Samuel Bacot, to Bright Williamson.

The statement of the accounts, and the various cases in the sheriff’s office, from which the above result is produced, are herewith submitted as a part of this report. All of which is respectfully submitted.

(Signed) J. A. DARGAN. JANUARY 4, 1840.

*Copy of Bacots*Bond, *and extractfrom the Bill.*

“State of South Carolina: Kow all men by these presents, that we, Samuel Bacot, Bright Williamson, Thomas *44Williamson, Rasha Cannon, Cyrus Bacot, and Lawrence Prince, are held and firmly bound unto Benjamin T. El-more and Lyon Levy, Esquires, Treasurers of the State aforesaid, and their successors in office, in th e full and just sum of seven thousand dollars, • to be paid unto the said Treasurers, and their successors in office. To which payment, well and truly to be made and done, we bind our heirs, executors and administrators, firmly by these presents, sealed with our seals, and dated this twenty sixth day of January, in the year of our Lord, one thousand eight hundred and twenty one.

Whereas, the above named Samuel Bacot hath been duly elected sheriff, for the District of Darlington, in the state aforesaid, for the term of four years, from the second Monday in February next. The condition of the above obligation is such, that if the above bound Samuel Bacot shall duly and faithfully discharge the duties of the office of sheriff, to which he hath been elected, as required or to be required by law, and that he is not, at this time, under any obligation either in honor or law, to share the profits of the office aforesaid, with any person or persons whomsoever, and that he will not directly or indirectly sell or dispose of his said office, or the profits thereof, but will either resign and settle his accounts, or continue in the actual discharge of the duties thereof, by himself or his deputy or deputies, for and during the term for which he is elected, if he should so long live : Then the above obligation to be void and of no effect, or else to remain in full force and virtue. Samuel Bacot, (L. S.) Bright Williamson, (L. S.) Thomas Williamson, (L. S.) Rasha Cannon, (L. S.) Cyrus Bacot, (L. S.) Lawrence Prince (L. S.) Sealed and delivered in presence of Maurice W. Hunter.”

“And that your orator is the same Bright Williamson, above named, as one of the securities to the official bond of the said Samuel Bacot.”

The complainant moves the Court of Appeals to reverse the Chancellor’s decree, and to confirm the report of the referee, on the following grounds:

I. Because Court erred, in dismissing the complainant’s bill for want of jurisdiction, when the jurisdiction was plain and obvious, in this — that , the bill alledged that the *45complainant, (Bright Williamson’,) w*as one of the securities to the official bond of said Samuel Bacot, defendant’s intestate.

II. Because the complainant has no adequate remedy at law.

III. Because, if the Court has jurisdiction, then the report of the referee should be made the decree of the Court.

ARGUMENT.

The complainant does not seek to make the *securities*of Bacot liable; if he did, then a return of *nulla bona*against the sheriff, [Bacot,] would be necessary. A. A. 1795.

*Com. of the Treausury vs securities of Newbxj.*1 Mc-Cord Rep. 184.

His Honor, however, seems to think that the bill was brought to charge the securities.' He says: “No discovery is sought; nor is it alledged in the bill, or at the hearing, that the estate of the intestate was sufficient to meet any demand which might be established.”

The complainants’s equity consists in this: That he was one of the securities to Bacot’s official bond, and, therefore, a co-obligor in a joint bond. He could not, therefore, maintain an action against Bacot, were he living, because he would be both plaintiff and defendant; his remedy would be in equity. *See the terms of the bpnd\ It is*joint; *and Livingston, Ex1 or. vs Livingston,*Ordinary, 2 *M. Con. Rep.*428. Nor could he maintain his action against Bacot’s Adm’r. *Boykin vs Ad,mr\*of *Watson*— Tred. *C. Rep.*157. But by the A. A. 1795, 2 *Brev.*117, it is provided, that “the bonds may be sued on by any person who may consider himself aggrieved by any misconduct of the. sheriff.” Any omission to do his duty, renders the sheriff, as well as his securities, liable on the bond — the sheriff’himself, at once — his securities only after he has been pursued to insolvency. The A. A. was intended to afford a higher security to parties in the sheriff’s office, against the sheriff himself, than an action on the case. The Statute of Limitation might be pleaded in such an action. But under his bond, the sheriff contracts by specialty, to do his duty; and for the breach— his neglect of duty — an action of debt may be brought against *him. Treasurers vs.*Barksdale, 1 *Hill,*273, 4, 5. *46Tlie bond should, therefore, be joint and several; in this instance it was only joint.

*Equitas sequitur legem.*The complainant is entitled to all the remedy which others might have. Bacot, as sheriff, collected and failed pay over moneys to him. He is in equity and good concience entitled to the remedy which prevents the plea of the Statute of Limitations. As the technical forms of law stand in his way, this Court will interpose, to give him relief.

The very statement appended to his Honor’s decree, together with the report of the referee, shews that at law there is no adequate remedy. In an action on the case the whole claim would be barred by the Statute of Limitations, and the complainant is entitled to the highest remedy.

The accounts have been made up with great care and labour. If the Court has jurisdiction, there can be no reason to send them back to the commissioner.

A. D. S.

*

 STATEMENT AND REPORT OF REFEREE. Samuel Bacot *Sheriff of Darlington*District, *So. Ca.*

To Bright Williamson, Dr,

1822.

May 7. To this amount received on decree ol William & Prince, vs *)*Jesse Herring, £ $10 00

“ To balance received in Win '& Prince vs James King, 7 15

“ “ “ “ B. Sammons, for C. Williamson, vs Abigail 7 Sloan, Adm. of Allen Sloan. 5 15 36

“ “ “ “ B. Williamson, vs Jos. Oliver, 19 00

*“*“ “ “ The same vs Thos. Horton, 4 00

“ •* “ “ Williamson & Prince, vs Jas. Hoole, 25 23

“ “ “ The same, vs Thos. Cook & Mitchel Russell, 85 46

“ “ “ “ Williamson & Lide, vs John White, 19 30

“ “ “ “ B. Williamson vs M. Bowie, 58 79

“ “ “ “ Williamson & Lide, vs C. Clements and ) Jno. A. Truitt, ■ 105 70

“ “ “ “ B. Williamson, vs Jacob Cook and Michael Hill, 103 54

“ “ “ “ The same, vs Wm. Teat, 33 99

“ “ “ “ The same, vs N. Muldrow, 67 48

“ *• “ Same vs Elijah King, 24 15

“ “ “ “ Same vs James Lewis, 33 01

“ “ “ “ The same vs Jno. Hood, 23 66

“ “ “ “ The same vs Jas. Hoole, (bal.) 66 13

“ •* “ “ The same vs James Melton, (bal.) 37

“ “ “ “ Same vs Dennis Mclendon, 11 37

“ ■ “ “ “ Same vs Wm. Rogers, 22 00

“ “ Amount received in Winson and Lide vs G. Rollings, 77 53

“ “ “ “ B. Williamson vs Rich. Rollings, (bal.) 20 00

“ “ Same vsRobt. Taylor, 5 90

“ “ “ “ Same vs Lewis W. Rollings and R. Rollings, 24 59

“ “ “ “ Same vs C. Hunt, 16 37

“ “ “ “ Winson & Lide vs Arthur Pigot, 13 62

“ « “ “ B. Williamson vs Jno- Stewart, *3 37*

“ “ “ Same vs Augustin Williamson, (bal.) 5 00

“ “ “ “ Same vs Jacob Cook, 41 00

*43*“*Same vs. Dempsey Whiddon, 20 ¡00 f988 14

Interest on this amount, from 1st March 1835 to 10 January 1840. (4 years, 10 months 10 days) 331 33

#1319 47

*Curia, per*Dunkin, Chancellor.

Samuel Bacot, formerly sheriff of Darlington District, collected money on several executions in which tlie complainant was plaintiff. It is alleged that after the death of Bacot, the complainant demanded the money of his administrator, the defendant, who had refused to pay the amount received, as proved by the sheriff’s books; and the solvency of Bacot’s estate is not questioned. On this statement, it is difficult to suppose a case in which the legal remedy is more plain and ample, by an action of assumpsit, or other form of action, against the administrator. It is urged, however, that the statute of limitations would bar a recovery in this form of action. But that the sheriff executed a joint bond with the complainant and others, as sureties, for the faithful performance of his duties as sheriff; that in an action on sueh bond, the plea of the statute would not apply; but that, as the bond was joint, an action at law would only lie against tlie survivors; and the object of this bill is to have the advantage of this bond against the administrator of the sheriff.

The bond of the sheriff ivas taken under the Act of 1795. In the *Treasurers*vs. *Bates,*(2 Bail. 375,) it is said *47by the Judge who delivered the opinion of the Court, that “ in a just construction of the whole Act, *as to the sheriff,*the bond may he regarded as either joint or several, and he or his representatives, may he sued alone upon it.” This was not the precise point adjudicated in that case, and this Court does not now deem it necessary to express any definite opinion upon it. Where a party has once had a plain and adequate remedy at law, which he has lost hy his own laches, it may he well doubted'whether^ this Court will aid him with another remedy, of which he might also, perhaps, have availed himself in .the ordinary form, if he had acted promptly. But, admitting the full force of the complainant’s argument, it is not alleged in the hill, nor did it appear hy the evidence, that the complainant would he defeated, in an action of assumpsit, hy the plea of the statute of limitations. In *Wright*vs. Hamilton, (2 Bail. 51,) it was held that, in such action, the statute does not run until demand made. No allegation is made of a demand on the sheriff, nor that the demand on his administrator was more than four years prior to the filing of the hill.

The Court is of opinion that there is no error in dismissing the hill for want of jurisdiction; and the decree is affirmed.

BENJ. F. DUNKIN.

We concur.

David Johnson, Wm. Harpek, J. John-STON.