Cox v. Thomas' Adm'x
| Decision Date | 28 August 1852 |
| Citation | 50 Va. 312 |
| Parties | COX and others v. THOMAS' adm'x. |
| Court | Virginia Supreme Court |
(Absent Samuels, J.)
In the penal part of a bond the names of fourteen obligors are inserted, binding themselves in a penalty to T. The condition recites that T has admitted the above bound his deputies in the office of sheriff of G. county for twelve months. Now if the above bound shall well and truly discharge the duties of their respective offices of sheriffs as aforesaid, & c the names of the parties who were admitted as deputy sheriffs being omitted. Two of the persons whose names were inserted in the penal part of the bond did not sign it, and one signed it whose name does not appear in the body of the instrument. On a motion by the administratrix of the high sheriff for the default of one of the fourteen who had signed the bond, as deputy sheriff. HELD:
1st. That there being nothing on the face of the bond to indicate that all named in the penalty were not appointed as deputies and the obligors having sealed and delivered the bond in its present shape, they are estopped from denying the fact.
2d. That deputy sheriffs having no joint interest in or entire authority over the whole office, and therefore one not being responsible for the other merely by virtue of the office they can only be held liable for the acts of each other in consequence of an express undertaking. As therefore they do not and cannot be made to stand as principals in respect to the acts of others, and as the bond makes them by its terms responsible for each other, each one must be regarded as principal, so far as his own acts are involved, and the remaining obligors as his sureties.
3d. Though some of the persons named in the penalty did not sign the bond, the parties who did sign it are to be considered as the obligors who are bound and are recited to have been admitted as deputies.
4th. A party signing the bond whose name is not in the penalty, does not vitiate the bond, and he is bound as an obligor.
5th. It is not necessary that the administratrix of the high sheriff shall produce the whole record of the cause in which he was subjected to liability for the default of the deputy. It is sufficient to produce so much thereof as shows the fact. And in this case the judgment was sufficient; that and its recitals being prima facie evidence against the deputy and his sureties.
6th. The bond stating that T was high sheriff and that the party proceeded against as deputy was such, it estops the obligors from denying these facts.
7th. Though the copy of the judgment against the high sheriff in the record, does not show in what court or when it was rendered, that is a mere clerical omission in copying the judgment into the record, and if these facts appear from any other part of the record, it will be held sufficient in the appellate court, when the objection was not made in the court below.
This was a motion in the Circuit court of Grayson county by the administratrix of Jonathan Thomas deceased, late high sheriff of Grayson county, against Samuel Cox jr., late deputy sheriff for the said Thomas, and eleven others, as obligors in a bond executed by them to Jonathan Thomas. The notice was addressed to these parties, the first as late deputy sheriff, and the others as obligors in a bond executed to Thomas. It recited that on the 4th day of April 1846 a judgment was rendered by the Circuit court of Grayson county in favor of John Mitchell, against the administratrix of Thomas, who was late high sheriff of Grayson county, for the sum of 132 dollars 30 cents, with fifteen per cent. per annum damages thereon, from the 1st day of April 1834 till paid, and costs; which judgment was rendered on account of the default and misconduct of the said Samuel Cox jr., who was a deputy of the said Jonathan Thomas, in failing to pay over to Mitchell the said sum of 132 dollars 30 cents, levied by him by virtue of two writs of fieri facias, sued out of said court by Mitchell against Esau Worrell. And the notice was, that on the first day of the next term of the said court she should move for a judgment against them for the full amount of the judgment so rendered against her.
The notice was not served on Samuel Cox jr., but it was served on nine of the other parties, who appeared to defend the motion. On the trial the plaintiff having proved the notice, introduced in evidence the copy of a judgment. This copy, as copied into the record in this court, did not state the court in which it was rendered; but after stating the names of the parties, as John B. Mitchell v. Patience Thomas, adm'x of Jonathan Thomas deceased, late high sheriff of Grayson county, proceeds to recite: " On a motion on a notice for the failure of Samuel Cox, deputy for Jonathan Thomas, high sheriff as aforesaid, to pay over to the plaintiff the amount of two writs of fieri facias, issued from the clerk's office of the Circuit court for Grayson county on the 8th day of October 1833, upon judgments obtained in said court in favor of the plaintiff against Esau Worrell, one for," & c.
It further recites that B. R. Floyd, to whom the matters in difference between the parties had been submitted by a rule of court, made at the April term 1844, this day returned his award in these words: " Pursuant to an order of the Circuit court for Grayson county, referring to me a certain matter in controversy," & c., " having given Samuel Cox notice frequently to produce any offsets he may have had against John B. Mitchell, and he having failed to do so, except those hereinafter mentioned, I do make my award as follows." He then proceeded to award upon the two executions, after allowing a credit of 5 dollars on each, the sum of 132 dollars 30 cents, with fifteen per cent. per annum damages thereon, from the 1st day of April 1834 until paid, and the costs of the notice. This award was confirmed, and a judgment was rendered for the plaintiff against the defendant accordingly.
The plaintiff then offered in evidence a bond, in the penal part of which the names of Samuel Cox jr. and thirteen other persons were inserted, binding themselves in a penalty of 90,000 dollars to Jonathan Thomas. The condition of the bond recites, that whereas the above named Jonathan Thomas hath this day admitted the above bound his deputies in the office of sheriff of Grayson county for twelve months. Now if the above bound shall well and truly discharge the duties of their respective offices as deputy sheriffs as aforesaid, & c.; the names of the parties, who were in fact admitted as deputy sheriffs, being omitted, and it not appearing upon the face of the bond who they were. Two of the persons, whose names were inserted in the penal part of the bond, did not sign it, and one signed it whose name does not appear in the body of the instrument. To the introduction of this bond as evidence the defendants objected, on the ground that it was not relevant testimony in the cause, because it did not show the undertaking of the defendants, nor who was appointed the deputy of Thomas, nor for whose default the defendants were responsible. But the court overruled the objection, and admitted the bond as evidence; and the defendants excepted.
The plaintiffs then introduced in evidence the two executions, sued out from the clerk's office of the Circuit court of Grayson by John B. Mitchell against Worrell, with the return thereon by Samuel Cox jr. as deputy of J. Thomas, " " satisfied." And the foregoing being all the evidence in the cause, the court proceeded to give a judgment for the plaintiff. To which judgment the defendants excepted, on the ground that the evidence was insufficient to justify a judgment against them; and they applied to this court for a supersedeas, which was allowed.
There was no counsel for the appellants.
Floyd and B. R. Johnston, for the appellee.
It is objected in this case that the bond upon which the proceeding was had, is void on account of its uncertainty; or if not and if all the obligors are to be treated as deputy sheriffs, this proceeding cannot be sustained, because the remedy by notice is given by the statute against the deputy and his sureties, and not against one deputy for the default of another deputy. As to the first question there would seem to be nothing in it. The bond from a deputy to the high sheriff is not a statutory obligation; no particular form...
To continue reading
Request your trial