March, 1836. Kincannon V Carroll. NASHVILLE, Surer, on or before the first day in December in each year, and as the bond in this case is conditioned to pay on or before the 1st day of January, it is not a statutory bond, and no judgment by motion can be rendered. The difference between the bond which was executed, and that directed by the act of assembly to be taken, is in favor of the obligors, as it gives the sheriff one month longer, within which to pay the taxes. The court has constantly held, in relation to appeal and certiorari bonds, that although the condition might not be so extensive, as the act of assembly authorized, it was nevertheless good, as far as an obligation was created, and that to that extent a judgment might be rendered. The principle of these cases applies here. Although the collector is not required to pay the taxes so early by a month as the law authorizes, yet as the delay was beneficial to him, the bond was good to compel him to pay, at the time specified in it. In addition to this it may be remarked, that as by the fifteenth section of the same act, the collector is required to pay the taxes to the treasurer, by the last day of December; no proceeding can be had against him for non-payment. The bond, though in form as directed in the preceding section, is made payable the first day of December, yet it is not, in fact, payable till the last day of that month, so that the condition of the bond, in this case, corresponds with the obligation created by law 2nd. It is insisted, that as the law requires the bond to be conditioned for the payment of the taxes to the treasurer of the district, where the said sheriff resides, and in this bond he undertakes to pay to the treasurer of the district of Tennessee, and as there is no such officer, there is no obligation created to pay one, and therefore no recovery can be had. This sheriff resided in Lincoln county, within the district of the treasurer of West Tennessee, and the taxes should have been made payable to the treasurer of the district of West Tennessee. To have specified the place where payable, with critical accuracy, would only have required the insertion of the word "West," before the word Tennessee. This was manifestly intended by the parties. They live in West Tennessee. The law requires this sheriff to pay to Waters V Lewis. the treasurer of West Tennessee, and except the omission NASHVILLE, of the word "West," they use all the words necessary to March, 1836. show a strict compliance with the law. The words used are insensible, if we are not permitted to supply the word "West;" but supplying that word, they are sensible, and are the precise words the law required should be used. This being the case, may not the word be supplied? We think it may. In the case of Coles vs. Hulme, 15 Com. Law Rep. 295, a suit was brought upon a penal bond, the penalty being described as "seven thousand seven hundred,” without any species of money being mentioned. It however appeared from the recitals in the condition, that various sums expressed in pounds, were agreed to be paid, and hence it was apparent, that the parties intended to express the penalty also in pounds, and therefore the court said, that in furtherance of the intention of the parties the word "pounds" might be supplied. This case is full to the point, and so reasonable in itself, that we fully concur in its principle. But if the words, "district of Tennessee" were rejected, so that it would read, "pay to the treasurer," without specifying to which treasurer, the law would have directed the sheriff, and would have made it obligatory on him to pay to the treasurer of West Tennessee. Judgment affirmed. WATERS, et al. vs. LEWIS, et al. Where a judgment is rendered in the supreme court against A and B, as sureties of C, the supreme court has not jurisdiction to render a judgment upón motion in favor of A and B, against co-securities, for contribution. The plaintiffs moved in this court for a judgment against the defendants upon the following facts: they were jointly bound as the securities of Eli Talbot, clerk of the chancery court at Franklin. Judgment, at this term of the supreme court, has been rendered against the plaintiffs, for a liability incurred, as securities, and they ask the court for judgment against their cosecurities, the defendants, for their contributive share thereof. NASHVILLE, Waters Lewis. James Campbell, for plaintiffs. No attorney appeared for defendants. TURLEY, J. delivered the opinion of the court. By the provisions of the constitution of the State, and the second section of an act passed 1st December, 1835, to establish a supreme court, it is provided, that this court shall possess such appellate, and other jurisdiction, as belonged to the supreme court under the old constitution, under such restrictions and regulations as may from time to time be prescribed by law. It is admitted, that the jurisdiction of this case is not appellate, but original, as the motion is only substituted in the place of an action on the case; but it is said, that the court heretofore had jurisdiction by express enactment. Let us examine whether this be so. The first statute which gave judgment on motion, in favor of securities, was passed in 1801, c. 15. The first section provides for judgments against the principal obligor or obligors in favor of sureties, when the amount of the judgment, or any part thereof, has been paid by them, to be entered in any court, or before any jurisdiction, where the judgment against them may have been rendered, or within any other court or judicature in the State. The second section provides for the rendition of judgments in favor of security against security, where judgment may have been obtained against them and the principal obligor or obligors are insolvent, to be rendered on motion in the court of judicature where the original judgment was rendered. This statute does not give the court jurisdiction for two reasons. 1st. This motion does not fall under its provisions; the securities do not move, under the first section, for judgment against the principle obligor, Talbot. They cannot move for judgment under the second section, because it is not legally shown that the original obligor is insolvent. 2nd. When the statute was passed, there was no court of errors and appeals to which it could apply; all the courts of the State had original jurisdiction of the subject matter by action, and where a motion was substituted, it must of necessity have March, 1836. been given to all, unless the legislature designed to diminish NASHVILLE, the jurisdiction of some. The second statute was passed in 1809, (chap. 69,) and the 1st section, provides for a judgment on motion, in favor of securities against their principals, upon the rendition of a judgment against them, without having paid the whole or any part thereof; and the third section, for judgment in favor of securities against their co-securities, without showing the insolvency of the principal obligor. . These judgments are to be rendered before any jurisdiction having cognizance thereof. This statute would cover this case, provided it gave this court jurisdiction; but it does not. The difference of the wording of this statute, and that of 1801, in their description of the courts where the judgment on motion is to be rendered, is striking. The act of 1801 says, "before any court or judicature in the State;" the act of 1809, "before any jurisdiction having cognizance thereof." Why this variance? Because in 1801, all the courts had original jurisdiction. In 1809, the supreme court of errors and appeals, with only appellate jurisdiction as to matters of law, was established; this was done by the act of that year, (c. 49,) previous to the passage of the act of the same year, (c. 69,) on which we are now commenting. It is therefore manifest, that the general words of the act of 1801, c. 15, were not used, because it was not the intention to encumber the supreme court with this jurisdiction, but to leave it to the courts, which, by the previously existing law, had cognizance thereof; to wit, a justice of the peace, if the amount were under fifty dollars, if over, to the county or circuit courts. But if there could be any doubt upon a fair construction of these statutes, whether jurisdiction was given to the supreme court, of the things provided for by them, yet that jurisdiction is expressly taken away by the act of 1822, c. 13, which says, "The supreme court shall not possess original jurisdiction in causes either in law or equity." To entertain this motion would be to assume that jurisdiction, which we have neither power nor inclination to do. Let it be overruled. Waters V Lewis. Motion overruled. NASHVILLE, Perry V Royle. PERRY AND NYE vs. ROYLE AND DAVENPORT. Where a judgment is rendered in one county by a justice of the peace, and an execution thereon properly certified, is taken to another county, upon which a justice of the peace in the latter county renders another judgment: Held, that the justice had no authority or power, under the act of 1805, c. 66, § 4, to render the latter judgment. Where a justice of the peace of one county, renders a judgment upon an execution sent from another county, upon which an execution issued, reciting the first judgment, it was held, that although the justice had no power to render the last judgment, yet he had power, by the act of 1805. c. 66, § 4, to issue the execution, founded upon the first judgment, and that the execution, issued in this case was therefore regular. Where a judgment is rendered before a justice, for ninety-four dollars, fiftytwo cents, upon which thirty-nine dollars, forty-eight cents was paid, an execution afterwards issued, commanding the officer to make the balance, to satisfy a judgment for ninety-four dollars, fifty-two cents, recovered, &c., but which was credited with thirty-nine dollars, forty-eight cents, upon a former fi.fa.: Held, that the last execution was regular, and substantially pursued the judg ment. A judgment was rendered by a justice of the peace, in Giles county, in favor of the plaintiffs, against the defendant Royle, for the sum of ninety-four dollars and fifty-two cents. An execution on this judgment, properly certified by the clerk of the county court of Giles, was sent by the justice to Lawrence county. This execution was credited with the sum of thirty-nine dollars and forty-eight cents. The justice of the peace in Lawrence county, to whom this execution was presented, gave judgment thereon, for the balance of the debt; and issued an execution, which was superseded and taken by certiorari to the circuit court of Lawrence county. This execution commands the officer to levy of the goods and chattels of John H. Royle, the sum of seventy-one dollars, to satisfy a judgment that Nathaniel Nye and James Perry obtained against him, on the 3rd day of Feb'ruary, 1828, before A. Black, a justice of the peace for Giles county, for ninety-four dollars and fifty cents, which was credited in the month of March, 1828, on a former fi. fa. by thirty-nine dollars and forty-eight cents, leaving a balance of debt on the same of seventy-one dollars. The circuit court dismissed the certiorari. |