William C. Bevins and Oliver P. Earle, surviving Partners of the firm of Bevins, Earle & Co., Assignees, &c., who sue for the use of Oliver P. Earle, Plaintiffs in Error v. William B. A. Ramsey, Robert Craighead, James P. N. Craighead, Thomas W. Humes, and James McMillan, Administrator of Andrew McMillan, deceased, 15 How. 179

Mr. Justice CATRON delivered the opinion of the court. The defendant, William B. A. Ramsey, and his sureties, were sued on an official bond given by Ramsey as clerk of the Chancery Court held at -Knoxville, Tennessee. The condition of the bond declares that the clerk shall “ truly and honestly keep the records of said court, and discharge the duties of said office, according to law; ” and the declaration alleges- that said Ramsey did not truly and lawfully discharge the duties of his office, in this, that Bevins,.

Earle & Co. filed their bill in equity in the Chancery Court at Knoxville against Chase & Bowen, and that certain goods of theirs were attached, and put into the hands of said Ramsey, as receiver; and that by an order of court the injunction was dissolved, and the réceiver, Ramsey, was directed to surrender, the goods to Chase & Bowen, “upon their entering into, bond with security to abide by and perfoim the judgment and decree of the court upon final hearing of the cause, if'made against them and that by virtue of the order it became the duty of Ramsey, as clerk and máster of said court, to take a bond as above prescribed.

Nevertheless, he did not take from Chase & Bowen their bond, with sufficient sureties thereto, but, on the contrary, he took certain sureties, (five in number,) who were wholly insufficient to perform the decree of the court, and on said insufficient bond and security surrendered the goods to Chase & Bowen ; and that afterwards, on a final hearing, a decree was rendered against Chase & Bowen in favor of Bevins, Earle & Co., for the sum of $6,303.64, with interest thereon, which remained unpaid.

The second and third breaches aver that Ramsey surrendered the goods without taking any bond, “ with good and sufficient sureties,” from Chase & Bowen; and, The fourth breach avers, that no bond whatever was taken from Chase & Bowen, on the delivery of the goods to them. The defendant relied on several pleas in defence, only two of which, the fourth and sixth, it is deemed necessary to notice.

The fourth plea sets out the order dissolving the injunction, and the bond taken by Ramsey from Chase & Bowen, and their five sureties, and avers that, after the final decree was made against Chase & Bowen, the bond- was, on the application of Bevins, Earle & Co., by order of the -court, surrendered to them by the clerk and master, and was accepted by them; and under and by virtue of said bond, Bevins, Earle & Co. have demanded • .and brought suit against and received of the' sureties in said bond large, sums of money; to wit, two thousand dollars, part and parcel of the penalty and condition of said bond-, which were demanded, and received on, and in discharge of, said bond.

The sixth plea avers that the bond taken by Ramsey, as clerk and master, was for ten thousand dollars, and was in due form; and that in judging as to . the sufficiency of the sureties, and in surrendering the property, said Ramsey acted bond-fide, and in the exercise of his best judgment; To this plea the plaintiffs replied, reaffirming that said Ramsey had not taken bond with good and sufficient security, as was his duty; and to the replication there was a demurrer.

As the declaration did not charge the clerk with bad faith, and the presumption of good faith being primd facie in his favor, from the face of the bond, taken by him, neither the plea or replication could be of any force, because in their legal effect they are the same as that of the declaration; and so the court below held, and, going back to the declaration, declared it bad; and secondly, overruled the demurrer to the defendant’s fourth plea. The plaintiffs were offered the liberty to amend their declaration and pleadings, but this they declined doing, and final judgment was rendered against them.

"Whether it was necessary to aver in the declaration that insufficient security was taken wittingly and knowingly, and consequently in bad faith, we do not propose to discuss, as it is a question more appropriately belonging to the State courts than to this court. But as judgment was given ■ against the plaintiffs on the fourth plea, and as that judgment is conclusive, if the plea is good, we'will consider that plea.

The demurrer adifoits that Bevins, Earle & Co. obtained the bond of Chase & Bowen and their sureties; that they sued the sureties on it, and received of them two thousand dollars, part of the penalty; and which sum was received in discharge of the bond; whether the money was obtained by judgment or compromise, does not appear, nor is it material. Chase & Bowen were principals to Ramsey, if he was in default forjtegleet of official duty; and so were the sureties to the bond responsible to him should he be compelled to pay in their stead.

The clerk was the last and most favored surety, and if forced to pay the debt, he was entitled to all the securities Bevins, Earle & Co..had, to remunerate his loss; and, in such event, he would have been entitled to the bond, on Chase & Bowen, and their sureties. And in the next place, it is manifest, that Ramsey cannot be in a worse situation than if he had been a party to the bond, in common with the other sureties; and in such case, it must be admitted that he would stand discharged. We concur with the Circuit Court that the fourth plea was a good defence, and order the judgment to be affirmed. Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States, for the district of East Tennessee, and was argued by counsel. ' On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the. same is hereby, affirmed with costs.