*Columbia*

Heard before Chancellor Desaussure.

XIÍ3KI.XXXVIIÍ

#### Dunlap and others, *vs.*John Bynum, administrator of W. C. Tyson and Presley Garner.

A. being indebted by judgment, was elected sheriff, and, together-with lus surety, entered into a bond to the state for the faithful dis» charge of the duties of his office. While sheriff, he collected money on certain execui ions, and had not pa.d over the amount before his-death. His estate was so far insolvent as to be unable to pay both liis-private judgment debts, and these monies so collected. The court decreed that the pla.nt ill's, whose monies he had collected, and who churned the benefit of his bond to the state, were not entitled to a priority of payment over the private judgment creditors, whose debts were decreed u> be first paid. Bui the surety was ordered to pay the amount collected by the sheriff and which he had not accounted for.

The bill stated that the complainants were judgment creditors of Thomas H. Wade, and had sued out executions on their judgments, which were lodged in the office of Wright G. Tyson, then sheriff of Richland district, and continuing to be so till his death. — That the said Tyson collected the amount due on their judgments some time in the beginning of the year 18J6, and died, soon after, without paying the same over to the complain ants. — That since his death John Bynum hath administered on the estate of the said Tyson, and complainants have applied to him for payment of the monies collected on their judgments and *executions ;*bat *he has*refused to do so, on the, grounds that there were before, and at the time when the said Tyson became sheriff of Richland district, judgments against him in favor of his individual creditors to a larger amount than all the assets of the said Tyson : and that these judgment creditors are entitled to a priority, in the distribution of che said assets, to the complainants. — That before his entering on the duties of his said office as sheriff, the said Tyson gave his bond to the state, with security, according to law, on the 24th January, 1816, in the penal sum of dollars, conditioned for the faithful performance of his duties as sheriff as aforesaid, ansi P>esh'y Garner joined in said bond as one of his securities. — That complainants *647-applied to the said surety to pay tit»- said sums of money so collected by said sheriff; but he has declined to do so, on the ground that the adr' y.trator of the said Tyson is bound to apply the assets _„-*e said Tyson, in discharge of the complainants’ démitiiífs, in preference to his judgment creditors ; and that in case he' was to pay the complainants’ demands, he would then file his bill in this court, and compel the said John Bynum to refund the same from the assets of the said Tyson. The bill prays the court to decide between the conflicting pretensions, and to give complainants relief, either out of the assets of Tyson, or by compelling the security to pay the amount due to the complainants by the said Tyson.

The answer of John Bynum, the administrator of Wright Tyson, the late sheriff of Richland district, admits that the complainants’ exhibit contains a true statement of the monies collected by said Tyson, in his character of sheriff, on the executions of the complainants ; but that át the time the said monies were collected, the said Tyson was indebted on several judgments, on which executions had been lodged, to an amount greater than the value of the assets of the sáid intestate, which have come to the hands of the said defendant, a statement of which judgments is filed. The defendant admits that the said W. Tyson, before entering on the duties of his office, gave bond and security according to law, as stated in complainants’ bill. The defendant submits, and prays the direction of the court, whether the complainants are entitled to avail themselves of the security given to the public, so as to give their claims a preference to those of the private creditors, or whether the said P. Garner would have a right to do so if he had discharged the complainants’ demands ? Whether any debt to the'public was contracted at all by the said W. Tyson, as there had been no forfeiture of the condition of his bond before his death, and a bond given as a contingent security is not considered a debt, in the administration of assets, until forfeiture of the condition ; and at any rate it is not a debt of record, and cannot take precedence of private judgments ? And ■glso, whether the court can new divest the judgments and, *648executions of their Hen on the assets, especially as they had this lien before the existence of the plaintiffs’ de-niands ? Defendant denies combination, &c. The Mil was taken pro confesso as to Garner.

*647FEB’Y, 1817.

*648This question has been, well argued, and is of much importance as to the principle involved in it, though the amount in question be not very large.

The claim of the complainants to a priority of payment out of the assets of Tyson, the intestate, is founded on several acts of the legislature. The first is the act of 29th July, 1769, the eighth section of which provides that the sheriffs shall give bond to the public Treasurer, in behalf of the public, for the faithful performance of the duties of their offices j which bonds should remain in the treasury, and may be sued for by order of the court for; satisfaction of the public, and all private persons aggrieved by the misconduct of the said sheriffs. The 9th section provide^,, that the sheriffs shall have the same powers, and be subject to the same suits, fines, penalties, and disabilities, which the sheriffs in Great 'Britain are liable to by the laws and statutes of Great Britain. -,

The act of the 12th December, 1795, re-enacts the obligation of the sheriffs to give security in a fixed sum, payable to the treasurer of the state, conditioned for the faithful performance of their duties *;*which bonds are to he deposited in the treasury, and may be sued for by the public, or any private person who may be aggrieved by the said sheriff,* for which purpose the treasurer shall, •upon application at the treasury office, deliver to any person applying, a certified copy of any sheriff’s bond there, deposited, which copy shall be evidence in any suits to be instituted.

The act of 1789 was also cited and relied on for complainants. It is enacted by the 26th section, that executors and administrators shall, in the administration of assets, pay the debts of the testator in the following order ¡- — funeral and other expenses of the last sickness 3 next, charges of probate of the will, or letters of administration *1*next, debts due the public 3 next, judgments, mortgages and executions, ‘&g.

*649These acts were commented upon by the counsel* and much stress laid upon them. After a careful examination of the acts, it does not appear to me that the two first intended to introduce any new law. They hare merely prescribed the mode by which the sheriffs are to give bond with sureties, to which the public and individuals can have recourse to be indemnified for misconduct by those officers. But they do not speak of these bonds as a debt established,* on the contrary, suits are directed to be brought on the bonds, by the public or persons aggrieved, to establish any debt or demand on the sheriff. The bond to the public was contingent till a forfeiture had taken place, and been established by suit on the bond *;*so that if we even admit that the. state and its assignees are entitled to all the advantages of priority of payment, on the ground of prerogative, and of the acts of parliament giving the king’s debts a priority, (though few of these acts are of force) this does not appear to be one of the cases to which the right of priority applies, or can be made effective. The rule is, that where the rights or titles of the subject and of the king concur, the king shall have the preference. But the concurrence must be in the beginning. It is so laid down in 9 Co. Rep. 55, 129. So in Co. Lytt. 306, and 4 Bac. 198. Now the state, or its assignee, had brought no suit, and established no rights, on Tyson’s bond, at the time of the existence of the judgments and executions of Tyson’s private creditors against him, nor even to the time of his death. I recognize then nothing till the death of Tyson which could establish any right or title in opposition to the legal liens of the judg* ments and executions of the creditors of Tyson, which bound Ms lands from the signing the judgment, and ins goods from the delivery .of the writ of execution ,* so that the sheriff might levy on the goods even in the hands of the executors or administrators. See 2 Bao. Abr. 352, Cro. Eliz. 181. Raym, 695. Salk. 322. The great case, of Rourke *vs.*Days'ell, 4 Term Rep. 402, has however settled this question conclusively.

The other act to be examined is that of the year 1739, which prescribes the order for the payment of the *650debts of a deceased person by his executors or administrators. This act is directory to executors and administrators. ^ meant not to change any law *;*it only re-enacts the common law. It must be taken with reference to other established doctrines — that is to say, that when it directs debts to the public to be paid before judgments, and executions, and mortgages, it must mean where those debts are established and concurrent, not contingent and doubtful. It would be monstrous to say, that a mortgagee, or judgment and execution creditor, should be postponed to a bond to the state officer $ not for a liquidated debt, and an ascertained sum of co-equal existence, but on a penalty given to cover defaults in office, which are known or ascertained at the death of the officer. The act directs payment according to the rights of parties at the time of the death of the deceased. But no debt had been established on the bond to the treasurer at Tyson’s death. Í do not think therefore the statute of 1789 will oblige the administrator of Tyson to pay the complainants, to the prejudice of bis private judgment creditors.

If however I had any doubts, they would be overruled by the judgment of this court in the case of the Commissioners of Public Accounts *vs.*Greenwood and others, creditors of P. Bocquet, decided in Charleston, in August, 1795. Sec Reports of Cases in Equity, 1 voh p. 450, and Appendix.

Nor is the case of the security, Presley Garner, better than the persons on whose judgments and executions Tyson had received the money in question. If he pays the money, he stands in their slices, with all their rights and advantages, but no higher or better.

I am therefore of opinion that the complainants are not entitled to the priority they claim, to be paid out of the assets of Wright Tyson, the late sheriff of Richland district : but must come in on his assets at all events subsequent to the judgment and execution creditors.

The complainants are entitled to a decree against the defendant Presley Garner.

It is therefore ordered and decreed, that Presley Garner do pay to the complainants the amount received *651by the late Wright C. Tyson, as sheriff, on the executions in his hands *•,*and that it bo referred to the commissioner to examine and report what was so received by Tyson, and not paid over to complainants. Costs to be paid by Presley Garner.

From this decree there was an appeal on the ground, that the complainants are secured by a bond due to the public, which takes priority of the judgment creditors of the sheriff.

Blanding for appellants. — Harper for respondents;

The court of appeals made the following decree :—

This case having .been submitted to the court, it is ordered and adjudged, that the decree of the circuit court be affirmed.

(Signed) HeNry W. Desaussure.

Theodore Gaillarb.

Thomas Waties.

W. D. James.