Cbawn v. Commonwealth

• Decision Date: 12 January 1888
• Citation: 4 S.E. 721,84 Va. 282
• Parties: Cbawn v. Commonwealth.
• Court: Virginia Supreme Court

4 S.E. 721

84 Va. 282

Cbawn

v.Commonwealth.

Supreme CouH of Appeals of Virginia.

January 12, 1888.

1. Bonds—Successive Terms of Office—Liability of Surety.

Defendant was surety on an official bond given for the last term of a county treasurer, who was elected for successive terms beginning in 187.5, 1879, and 1883, and went out of office in 188.5, owing the state a balance for taxes collected in 1885. In 1878, a balance had become due from the treasurer, and from year to year a balance remained due. In each year after 1878, he used current collections to pay the balance for the preceding year. Held, that the surety was liable for the balance due at the end of the treasurer's tenure.

3. Same—Successive Terms of Office—Discharge of Surety-Failure to Require Settlement.

Defendant was surety on an official bond given for the last term of a county treasurer, who was elected for successive terms beginning in 1875, 1879. and 1883. andwent out of office in 1885, owing the state a balance. In 1878, a balance had become due from the treasurer, and from year to year a balance remained due. Certain state officers failed to perform their duty of requiring settlements from the treasurer, and of suing promptly on default. Held, that such failure did not discharge defendant.

Error to circuit court of city of Richmond; B. R. Wellford, Jr., Judge.

Proceeding by the commonwealth of Virginia against Samuel R. Sterling as treasurer of Rockingham county, Virginia, and E. A. Bear, Samuel L. Slusser, Jacob Wright, J. Hause, S. R. Allebaugh, John F. Crawn, Henry R. Beery, E. R. Neff, John Leedy, and Philo Bradley, as sureties on Sterling's official bond, executed June 18, 1883. Judgment was entered below against the defendants, and John F. Crawn brings the case liere on writ of error.

John E. Roller, for plaintiff in error. R. A. Ayers, Atty. Gen., and W. R. Meredith, for the Commonwealth.

Lacy,.J. This is a writ of error to a judgment of the circuit court of Richmond city, rendered on the thirtieth day of June, 1886, in the case of the commonwealth of Virginia against Samuel R. Sterling, late treasurer of Rockingham county, and the sureties upon his official bond. At the trial the plaintiff proved that there was a balance due the state of Virginia from the treasurer of the county of Rockingham, Samuel R. Sterling, upon the revenue and license tax of 1885, the sum of $19,750.98. The defendant thereupon offered to prove on his part that S. R. Sterling was treasurer of Rockingham county for three successive terms, —the first beginning July 1, 1875, and continuing four years; the second beginning July 1, 1879, and continuing four years; the third beginning July 1, 1883, and continuing to the day of December, 1885, when he resigned his office, —and that a bond was given at the commencement of each term, and a new bond executed on the motion of one of his securities during his second term of office. That the first and second bond was for $150,000. The new bond given during the second term was for $150,000, and at the commencement of the third term a bond was given for $140,000. That the securities on these several bonds were in some instances different persons. That the said Sterling was a defaulter to the state of Virginia during his first term. That such default occurred in 1878, and amounted to at least $35,000. That this default continued up to December, 1885, when said Sterling resigned his office as treasurer. That the collections made by said treasurer of revenues and taxes of each year succeeding the year 1878, were taken by him to make good the deficiency previously existing. That the successive auditors of the state failed to comply with the provisions of section 31, c. 60, Act 1878-79, and the same section of act of general assembly of March, 1875. That the supervisors of Rockingham county also failed to make settlements with said treasurer as required by law, or to require him to make exhibits of his accounts as treasurer with the county, and of the moneys, books, and papers in his hands belonging to said county. That said Sterling was a defaulter to said county in 1878 in not less than $20,000 and continued such defaulter up to the time of his resignation. That if either the auditors or board of supervisors had discharged their duties as required by law, in regard to the accounts of said treasurer, the defaults aforesaid would have been discovered and made known. That said defaults were not known to the sureties upon the bond of 1879 and the bond of 1883, and that said sureties would not have gone on said bonds if they had had any intimation that any default had previously occurred. That one of the sureties died in December, 1883, and another died in August, 1880. That the estates of each, for the most part, had been paid out to creditors and distributees widely scattered in various states, and some of them insolvent, before the institution of this suit, in complete ignorance of any liability on the bonds of Sterling, treasurer, as aforesaid. But the court refused to permit the introduction of said testimony, or any part thereof, whereupon the defend-ant excepted, and, judgment being rendered for the said plaintiff as aforesaid, the defendant brought this case here by writ of error, and the said action of the said circuit court of Richmond city in excluding the said evidence so offered by the said defendant is assigned as error here.

Did the evidence offered by the defendant constitute any valid defense to the action? The application of the payments made by Sterling, above stated, was made by the creditor by the direction of the principal debtor. In a similar case upon this point decided by this court in 1875, (the case of Chapman v. Com., reported in 25 Grat. 721,) Moncure, P., delivering the unanimous opinion of the court, so far as this point is involved, said: "Scott owed two debts to the commonwealth, for which different sets of sureties were liable. He made payments to the auditor on account of...