The State, on the Relation of Johnson, v. Stewart and Others

The State, on the Relation of Johnson, v. Stewart and Others. Saturday, December 16. Debt by the state, on the relation of «/2., on the official bond of the clerk of a certain Circuit Court. The breach assigned in the declaration was, that B. had recovered judgment in that Court for a certain sum of money against G.; that the judgment had been assigned to the relator, in the order book of the Court, by B. under his hand and seal; that the money had been paid to the clerk who had refused to pay it over, &c. Held, that profert of the assignment of the judgment was unnecessary. ERROR to the Carroll Circuit Court. [MAJORITY — Sullivan, J. Per Curiam.] Sullivan, J. — Debt against Stewart and others on the official bond of Stewart as clerk of the Carroll Circuit Court. Three breaches are assigned in the declaration. The first is, that Stewart did not pay over all moneys which came into his hands as such clerk and by virtue of his office, in this, to wit, that on the 28th of April, 1837, by the judgment of the Carroll Circuit Court, one Simeon L. Stewart recovered a judgment against Samuel Grimes for the sum of 2,259 dollars and 93 cents and costs, which judgment was afterwards assigned, on the order book of said Court, by said S. L. Stewart under his hand and seal to Lewis Johnson, the relator in this cause, of which the defendant had notice; that afterwards, to wit, on tire 13th of July, 1840, the sum of 2,400 dollars, the balance then due on said judgment, was paid to said Stewart, clerk, &c., and was received by hirmby virtue of his said office, which, although thereto requested by said Johnson, on, &c., at his said office, &c., he the said Stewart wholly failed and neglected to pay over. The second and third breaches are substantially the same as the first. The defendants filed a special demurrer to the declaration, and assigned for cause of demurrer, that no profert was made of the supposed assignment of the said judgment by Stewart to Johnson, the relator. Joinder in demurrer, and judgment for defendants. We perceive no valid objection to the declaration in this case. The plaintiff was not bound to make profert of the assignment of the judgment. Even if it were such an instrument as the party would be required, in ordinary cases, to show to the Court if he had declared upon it, yet in this case he is excused from doing it. It is apparent that the assignment was not in the possession of the relator, which was a legal excuse for not making proferí of it. D. D. Pratt and W. Wright, for the plaintiff. J. Pettit, for the defendants. Per Curiam. — The judgment is reversed with costs. Cause remanded, &c.