Glascock v. Ashman

         OPINION          By the Court:

         It is not necessary to determine whether, under the complaint, a judgment could properly have been rendered against the defendant Ashman for the statutory penalty. Nor is it necessary to determine whether the Court erred in rejecting the testimony with respect to the payment of plaintiff's judgment. It would seem very clear that if the offer had been to prove that the payment was made prior to the commencement of the action, or if the defendants had obtained leave to file a supplementary answer, averring the payment after the suit was commenced, the evidence would have been admissible.

         It is enough for the decision of this case to say that the two-hundred-dollar penalty could not be enforced against the sureties. Secs. 4179 and 4180 of the Political Code do not make the sureties liable, in terms, and the liability for more, or other, than actual damages sustained cannot be considered as assumed by the sureties, by their contract, as fixed by the language of the official bond of the Sheriff. The intention of the Legislature is rendered the more apparent by referring to sec. 8 of the Act of 1851, " concerning Sheriffs," which declares that for a neglect to levy when requested, the Sheriff shall be liable " on his official bond." The omission of these words in the subsequent acts has the effect to relieve the sureties from a liability for the penalty, which the present law imposes only on the officer.

         Judgment and order reversed, and cause remanded for a new trial.