Nashville union and American. [volume] (Nashville, Tenn.) 1853-1862, 1859-02-01


State Of Teunessss, for Burns Joseph Clark
This suit is brought upon he official bond of John
F. Lucky against his securities fir the failure of
Lucky to pay over certain moneys collected BY him
as officer, for the plantif, Burns.
The defence relied upon By the defendants is, that
they not liable, because the election of Lucky
was q nullity, and the official bond therefore void
at least 10 them, sureies. The question
arises upon this state of facts; Yseaney Oe
curre1 in the Office of constable in the 1st
civil district Of DeKal5 county. by the resig-
n. .tion Of the incumbent in January, 1856, and
he 2eth Of that month Lucky was elected to Gil
the vacancy, and on TIE 5th Of February, 1866 was
qualified, and entered int bond as required by law
in the county court OF that county On the lst dsy
Of March, 1856 at the general election Of county
and district officers he candidate for the
office, and succeeded. Under this election he was
| again qualified by the county court the day
Of March, and then entered into the bOLd on which
this suit is brought with the present defendants his
sureties, for the faithful performances OF his duties
The poiot made, is, that by the Constitution, ais
first election Ess fer Two years, and there
vseaucy ia the Office at bis second election, and
consequently it void, and the bond being IN
authorized, was a nulliiy
To sustain this position We are referred 10 Keys
vs.. Mason, Sneed Clio, where it is decided by
thus Court, that justice Of the peace elected to m
vacancy holds his of and has right to
else its functions for the constitutional term Of six
yeaTs, Instead CT the remaining portion Of the
term, provided By the act of 1885, ck l. sec 10
In the previous case, Of Brewer Davis, Humph.
POS the game principle settled in reference 10
Clerk Of the Circuit Court. In these cases vel
as those Of CemmOBs rs. Cato, Snetd, POI, the
questions upOa the legality Of the official acts
ofthe officers, when there were conflicting claims
to the office But here it is Entirely different
Lucky the legal efieer under any construction
as he was successful at beth elections. 1t would
not be contTOvered that be might have resigned the
Office and accepted reelection at the March eec
tion In 1856 In that eass there eoul1 have been
controversy. He had right 10 claim the Office
for Two years from his first election, the pIiuei
pie Of the cited. but he could surrender il,
and upon q successful canvass at the regular elec~
ton, be entitled to two years from that time. ls 1t
not tantamOunt to q resIgnRiioD, 10 become can
didae at the last election and conform TO all toe
requirements Of the law, to taking the oath Of
Office, giving new bond, &c! How this would be
in case another hs6 been elected, and any contest
existed between them for the Office, or between
others their ofheial acts, or where act per
formed after the expiration Of two years frcm the
frat electiOa should come ia question. would not
now decide, as this does not necessarily pre-
sent that difficulty. These sureties cannot be al
lowed to avoid their bond Voluntarily entered into
upon any such grounds. Ia any event IL would be
good Ct common law and they are sued in th com
mon law action fer abr eseh ofits conditions By
statute also, bond good at common law is likes
wise good statutory bond It's no objection to it,
that it was entered into before the Court, even II
the last election unnecessary for the cOntinua
tion Of Lucky in the Office. But it cannot be said
that The election rstituiiona for a most it
was only unnecessary. There VS. nothing against
public policy. illegal immoral, in the election
the execution of,he b,n4, by which il would be rem
dered void If Lucky submitted to a re-e eetion,
and the COutsanctienej by iudueting him anew n-
the Office and the defendants apPrevedit By sign
ing his Official bond, it is not for them, whatever
,theTs might i've right TO d., TO question the
proceeding or eseaFe frOn the Obligations imposed
The North CarJlins case 20 which Weare rrferIed,
OF the State Shirley and others, lredell 597,
does not, as think conflict with this view There
the constable had entered into bond before q single
magistrate out Of court, when the law required il
should have been in court. The court held the bond
was not taken by the thority authorized By Law
10 40. for the State in that matte and therefore not
legally dsiireTsd. It is very questionable whether
the fact that it delivered to the county court
aud there kept on 6le, was net an acceptance that
would make it binding. But this is a very different
case even ifihst was correctly decided. Here the
bond was ken By the proper authority and in the
proper form
We think this bond was binding upon the parties,
and thst the court erred in holding otherEIse, for
which the judgment is reversed and the cause
manded for new trial CARUTHERs.
Ac5rTeet copy, Test, J. P. CLARK, Clerk