Wright v. Leath

• Decision Date: 01 January 1859
• Citation: 24 Tex. 24
• Parties: W. C. WRIGHT AND OTHERS v. J. R. LEATH, ADMINISTRATOR.
• Court: Texas Supreme Court

24 Tex. 24

W. C. WRIGHT AND OTHERS

v.J. R. LEATH, ADMINISTRATOR.

Supreme Court of Texas.

1859.

The delivery of a sheriff's bond to the chief justice, for the approval of the county court, is a sufficient delivery on the part of the obligors; and a deposit and record of it in the proper office, fully evidences its delivery to and acceptance by the state, and renders it effectual, without other evidence of approval by the county court.

ERROR from Rusk. Tried below before the Hon. W. W. Morris.

This was a motion by the defendant in error, against W. C. Wright, sheriff of Rusk county, and the sureties on his official bond, for the recovery of money collected by him under execution, which he had failed to pay over.

The only question in the case, arose upon the exceptions taken by the plaintiffs in error to the ruling of the court, as to the validity of the sheriff's bond.

The parties waived a jury, and submitted the case to the court, upon the sufficiency of the bond of Wright, and the exceptions taken by the defendants to the plaintiff's motion. The court adjudged the bond to be valid and binding, and rendered judgment for the plaintiff.

The bond was in the ordinary form, and in compliance with the statute, dated the 13th day of August, 1852, and signed by the principal and sureties. Attached to it was the oath prescribed by the constitution, to which Wright had duly subscribed, on the same date, before the chief justice of Rusk county. Also, on the said bond was the following indorsement:

“I, James E. Glasscock, chief justice, do hereby approve of this bond, the 13th day of August, 1852.

J. E. GLASSCOCK, Chief Justice.”

“Filed for record, August 13th, 1852.

J. L. SWAN, C. C. C., Rusk Co.”

The certificate of the clerk of the county court, which followed the above indorsements, showed that he recorded the said “Bond of W. C. Wright, as sheriff, in book I., page 146, of Records of Bonds, County Officers,” etc. This certificate was attested on the 9th day of April, 1853.

Armstrong & Parsons, for the plaintiffs in error. For the plaintiffs in error, we insist, that the court below erred in rendering judgment against them, because the bond upon which this proceeding is based, purporting to be the official bond of Wright, as sheriff, was never approved by the county court; and was never delivered to the governor, or to any person or persons by law authorized to accept it for him. The bond is void for want of delivery, and this is apparent upon its face. In support of this position, we beg leave to invite the court's attention to the authorities upon the subject.

1. “An act defining the office and duties of sheriffs,” passed “May 12th, 1846” (Hart. Dig. p. 868, art. 2882), provides that the bond of a sheriff shall “ be approved by the county court of his county, for such sum as may be directed by such court.”

2. What did the legislature mean by the words “ county court,” used in the act referred to? Did it mean a “ county court” composed of one “ chief justice? ” We think not, for at that time no such court existed in this state. At the time the act was passed, the “ county court” consisted of one chief justice and four commissioners (Hart. Dig. p. 156, art. 280; and p. 157, art. 285); and it must have been this court which the legislature intended, and expressly directed, should fix the amount of, and approve the bonds of sheriffs.

3. Nor is this conclusion in the least disturbed by a subsequent act of the legislature, organizing county courts, passed March 16th, 1848 (Hart. Dig. p. 161, art. 307). It is true the first section of this act creates a “county court” to be composed of one chief justice. But the 11th section (art. 317), which provides for the election of a chief justice, also requires that four commissioners be elected. However, the powers and jurisdiction of the chief justice, when acting without the assistance of the commissioners, are plainly and distinctly defined, and marked out by the 20th section (art 326). The time of holding his court, and the duties which he shall perform, are clearly and unmistakably stated, and are limited to “the probate of wills, the granting of letters testamentary, of administration, and of guardianship, and the transaction of all business growing out of, or connected with, the powers and jurisdiction of the county court over executors, administrators and guardians, and the estates of deceased persons, minors, idiots, lunatics, and persons non compos mentis.”

The 21st section (art. 327), which fixes the time of holding the court, composed of the chief justice and commissioners, and defines their powers and jurisdiction, furnishes still further evidence, that it was the legislative will and intention, that the chief justice should be limited in his powers and jurisdiction, to probate matters alone. It provides, that terms shall be commenced and held “on the third Monday in February, May, August and November, in every year, for the transaction of all business growing out of, or connected with the powers and jurisdiction of the county court, over all matters other than those named in the second and twentieth sections of this act; such terms shall be held by the chief justice, with the assistance of any two or more of the county commissioners.” The matters named in the second and twentieth sections relate exclusively to estates of deceased persons, minors, idiots, and persons non compos mentis. Then the inquiry arises, can the chief justice, without the assistance of at least two of the commissioners, direct the amount of a sheriff's bond and approve it, so as to make it valid and binding upon those who have signed it? Is he the governor's agent, appointed and authorized by law to receive such a bond? Or would not a sheriff's bond, taken by the chief justice, as in this case, be null and void for want of delivery? We think it would, and believe we are sustained by authority. The State v. Shirly and others, 1 Ired. Law, 597; Crawford v. Meredith and others, 6 Geo. 552; The State v. Purcell's Executor and others, 16 Tex. 305.

These cases are directly in point upon this question, and are the only adjudications upon it which we have been able to find. In delivering the opinion of the court, in The State v. Shirly and others, Gaston, J., says: “His acceptance of the instrument, imparted to it no more validity than it would have received from the acceptance of any, the humblest individual in the land.” This was a constable's bond, taken by one of the justices of the county court. The case of Crawford v. Meredith and others, was upon a sheriff's bond, which was taken and approved by two of the justices of the inferior court. The bond was held a nullity, because it was not approved by at least three of them. The bond in this case should have been approved by a county court, consisting of a chief justice, “ with the assistance of the commissioners.”

If the bond was not delivered to the governor, or to one authorized to receive it for him, an action cannot be maintained on it. Fay v. Richardson, 7 Pick. 91;Fitts v. Green, 3 Dev. 291; State v. Oden, 7 Har. & Johns. 108, note. The act of recording the bond was no delivery of it. Maynard v. Maynard, 10 Mass. 456;Harrison v. Phillips Academy, 12 Id. 456.

It may be insisted, that the bond in this case is good as a common law bond, and valid for one recovery upon it. But we would inquire, is any bond binding upon the obligors, whether a statutory, common law, or voluntary bond, until it has first been delivered to, and accepted by the obligee, or some person authorized to receive it for him?

Hollingsworth & Jones, for the defendant in error.

WHEELER, C. J.

The question raised by the exception is, whether the sheriff's bond, on which this recovery was obtained, became effectual by delivery, as the bond of the officer, contemplated by the statute (Hart. Dig. art. 2882). It is insisted that it did not, because it does not appear that it was approved by the county court, but only by the chief justice; and in support of the objection, two decisions, one by the supreme court of North Carolina, and the other by the supreme court of Georgia, are relied on.

In the former case (State v. Shirly, 1 Ired. Law, 597), a constable, whose bond was in question, had been appointed by a justice who had no authority to make the appointment, and thereupon gave the bond. The court held, that the appointment of the constable was utterly void, and that the bond, not having been taken by a person authorized to take it, was also void. In their opinion, however, the court refer to the decision of the supreme court of the United States, in the case of the Bank of the United States v. Danridge, 12 Wheat. 64, and of Chief Justice Marshall, in the United States v. Maurice, 2 Brock. 96, and conclude, upon the authority of these, and similar decisions of other courts, that there may be cases where a bond, payable to the state, though taken by an unauthorized person, if it be for the benefit of the state, may be upheld as valid, on the ground of a presumed acceptance. But they held, that this principle did not apply to the constable's bond, which was not made for the benefit of the state, but only to secure persons who should intrust the constable with the collection of debts.

In a later case (State v. McAlpin, 4 Ired. Law, 140), the same court held a sheriff's bond, given to secure the performance of his official duties, valid, though not taken in the manner, nor by the persons appointed by law to take it, on the ground intimated in the opinion in the former case; and the authorities there cited, to the effect, that the bond, being for the benefit of ...