Johnson v. Koockogey , 23 Ga. 183 ( 1857 )

By the Court. —

Benning, J.

delivering the opinion.

The action in this case, was brought under the. second section of the Act of 1852, “ to regulate the mode of sueing the bonds of executors, administrators and guardians.” Jlcts. of 1851 — ’2, 235.

And there is no doubt, that that section authorized the action to be brought, if the Act can constitutionally apply to laws founded on bonds of older date, than the date of the Act.

And we- think, that the Act can.

The Act is only a remedial Act. It is entirely conversant with remedy. It does not say that the liability of the sureties to whom it refers, shall become primary or, shall, in any respect, cease to be secondary. The last section of the Act, contains these words: “That when judgment shall be obtained against principal and sureties, as aforesaid, the property of the sureties shall not be levied on until that of the principal shall be exhausted, which shall be evidenced by a return of nulla bona”

By the old law, the Act of 1820, an heir might sue the parties to the administrator’s bond, but by that law, he had to bring two suits, in order to reach them all, first, a suit against the administrator alone, then a suit against his sureties. At least, this was what was held in Justices, &c. vs. Sloan, 7 Ga. 31, a decision, however, which I much question. By this new law, he may reach them all in one and the same suit, but he can reach them in that suit, only in the same order, in which he would have reached them, by the old law, in two suits. This is the whole effect of the new law. And this is an effect, on remedy, not on right.

But statutes changing a man’s remedies, have never been held to be unconstitutional.

We think, therefore, that the Court below erred, in sustaining the demurrer,

Judgment reversed,