A clerk who fails to take the security required by § 20-12-120 is liable on the clerk’s official bond to people harmed by that failure.
Any clerk who neglects to take the security required by § 20-12-120 is liable on the clerk's official bond to all persons aggrieved by the neglect. Code 1858, § 3188 (deriv. Acts 1787, ch. 19, § 3); Shan., § 4924; Code 1932, § 9076; T.C.A. (orig. ed.), § 20-1623. Textbooks. Gibson's Suits in Chancery (7th ed., Inman), § 123. Cited: McCalla v. Nelson, 44 Tenn. App. 164, 313 S.W.2d 462, 1956 Tenn. App. LEXIS 172 (Tenn. Ct. App. 1956). NOTES TO DECISIONS 1. Failure to Take Proper Bond — Liability of Clerk. 2. Petition Against Clerk in Pending Suit. 3. Appellate Jurisdiction of Original Application. 1. Failure to Take Proper Bond — Liability of Clerk. The clerk is not liable for defective appeal bond taken in the presence of the court and parties, or in the presumed presence of the court. McAlister's Adm'rs v. Scrice, 15 Tenn. 276, 15 Tenn. 277, 1834 Tenn. LEXIS 40 (1834). The clerk is liable to the persons aggrieved by his failure to take proper prosecution bond; and he may be sued without suing the sureties, and before suit against any third person to ascertain the damages sustained. Pass v. Dibrell, 16 Tenn. 470, 1835 Tenn. LEXIS 110 (1835); Parker's Heirs v. Irby, 68 Tenn. 221, 1877 Tenn. LEXIS 23 (1877). 2. Petition Against Clerk in Pending Suit. Parties entitled to a fund in the hands of the clerk and master may, without giving security for costs, file a petition against him, or if he be dead, against his personal representative and the sureties on his official bond, praying process and appropriate relief. Ex parte Yowell, 54 Tenn. 561, 1872 Tenn. LEXIS 85 (1872). 3. Appellate Jurisdiction of Original Application. It is not within the appellate jurisdiction to make rules upon parties to justify or give new security on process sued out in the court below, for this section only applies to the inferior courts in such cases. This is true where no action of the court below was evoked, but if such action was properly invoked, and improperly refused, the supreme court will revise the error. Stewart v. Wilcox, 69 Tenn. 81, 1878 Tenn. LEXIS 47 (1878).