Brown ex rel. Ellis v. Lester

Citations

• 21 Miss. 392

Syllabus

<p>The clerk of the circuit court is required to give bond conditioned for the faithful performance of the duties of his office; whatever, therefore, is a duty required by law is covered by the condition ; and a failure to discharge such duty is a breach of the bond, for. which the injured party may recover damages commensurate to 1he injury.</p> <p>It is, under the statutes of this state, the duty of the clerk of the circuit court to make out proper dockets of causes in the order required by the law ; and a breach of this duty is a breach of his bond, for which he will be liable in an action to any party injured thereby.</p> <p>In an action on the official bond of a clerk of the circuit court, the plaintiff alleged as a breach that he had instituted his suit, (the parties to which and cause of action he described,) to a particular term at which it was brought to issue, and he was entitled to a trial, and would have obtained a judgment at the next term, had the case been put on the docket; but the clerk omitted to place it there, by which omission he lost the opportunity of a judgment at that term, and thereby lost his debt by reason of his debtor’s insolvency, which, if he had obtained judgment at the proper time, would not have been the case: Held, that the breach was well assigned, and exhibited a cause of action against the clerk.</p> <p>The omission to discharge a duty prescribed by a directory statute, may not vitiate the proceedings of the officer as to third persons ; but he is liable to any party injured by his failure.</p> <p>In an action on the official bond of a clerk of the circuit court, the suit must be brought in the name of the governor of the state for the use of the aggrieved party ; whore, therefore, a suit has been instituted by one for the use of another, and the latter desires to sue for neglect of the clerk in the conduct of the suit, on his official bond, he must institute the suit in the governor’s name, for his own use, and not for that of