Hagood v. Blythe

• Decision Date: 11 January 1889
• Citation: 37 F. 249
• Parties: HAGOOD v. BLYTHE et al.
• Court: U.S. Court of Appeals — Fourth Circuit

37 F. 249

HAGOOD v. BLYTHE et al.

United States Circuit Court, D. South Carolina.

January 11, 1889

At Law. Action on marshal's bond.

Officers and Public Employees 135

Syllabus by the Court

In order to discharge a surety short of payment of the debt there must be some dealing between the creditor and the principal changing the cause of action, or suspending the right of action.

When a private person brings suit against a marshal and his sureties on his official bond for official default, the judgment should be, not for the penalty, but for his damages legally assessed. Such suit, and the judgment thereon, are for his sole use. Rev. St. U.S. Secs. 784, 785.

Mitchell & Smith, for plaintiff.

Barker Gilliland & Fitz Simons and Brawley & Barnwell, for defendants.

SIMONTON J.

Action at law on a marshal's bond, against him and his sureties. A trial by jury waived. Complaint alleges the collection by the United States marshal of certain costs due plaintiff as clerk of the court in Farr v. Chick,-- $187.75; the failure to pay the same to plaintiff; and demands judgment on the penalty of the bond. The collection of the money, in July, 1883, by Blythe, marshal, and the failure on his part to pay it over, have been proved, except as to the sum of $12.32, which should be credited on the claim. The answer on behalf of the sureties sets up certain dealings between the plaintiff and Blythe, which they claim discharge them. It appears from the evidence that in July, 1883, Blythe was removed from office as marshal; that he called on the plaintiff and told him that he had collected these costs, but that he was put to such heavy expenses attending the removal from his office, such as paying house-rent and other charges that he was compelled to use the money. He promised, however to pay it as soon as he returned to his home in the interior of the state. It does not appear what reply plaintiff made to this. This suit began 25th February, 1887.

In order to discharge a surety short of the payment of the debt there must be some dealing on the part of the creditor and the principal changing the cause of action, or suspending the right of action. Perhaps, in a court of equity, unreasonable and inexcusable delay on the part of the creditor, working injury to the surety, may operate so as to discharge him. In this court there must be a contract to give time; that is, an agreement based upon consideration binding on the creditor. Mere delay, without such a contract, will not discharge the sureties. Hunt v. U.S., 1 Gall. 32; Locke v. U.S., 3 Mason, 446; King v. Baldwin, 2 Johns.Ch. 559; 2 Amer.Lead.Cas. 105. If delay be relied on it must be shown to have operated as an injury to the surety. Hampton v. Levy, 1 McCord, Eq. 107; Smith v. Tunno, Id. 443. In this case there was delay on the part of the plaintiff, but nothing in the shape of an agreement to give time appears. No evidence whatever is offered showing that the sureties have been injured by the delay. They are not discharged, and plaintiff is entitled to a verdict against them, as well as against their principal. There is no evidence of any demand, however, on the part of the plaintiff. He will be allowed interest on his claim, but as against the sureties he can get interest only from the date of the filing of the summons in this case,-- 25th February, 1887. U.S. v. Curtis, 100 U.S. 119.

The more difficult question is as to the form of the judgment. Shall it be for the penalty of the bond? Or shall it be for the sum allowed above with interest? In South Carolina, before the adoption of Code of Procedure, it was the practice to sue the official bond of the public officer either in the name of the state or of any person injured by act of the officer. If the verdict was against the defendant, judgment was entered on the penalty. Inasmuch as suit could be brought by any party aggrieved, (6 St.at Large, 384,) all existing suits were consolidated, and the judgment for the penalty inured for the benefit of such consolidated suits without priority between them, (Treasurers v. Bates, 2 Bailey, 379, 1 Hill, S.C. 409; Mitchell v. Laurens, 7 Rich.Law, 111.) The judgment for the penalty is entered as security for the several sums assessed for breaches of the condition. This judgment takes priority over any judgment subsequently obtained against the defendants, even though the assessment of damages be made on a suggestion subsequent to the second judgment. Norton v. Mulligan, 4 Strob. 357.

In State v. Moses, 18 S.C. 366, decided after the adoption of the Code, the action was in the name of the state, verdict for the penalty, judgment accordingly. On appeal it was held that it was proper in cases of this kind--that is, in suits by the obligee of the bond (the state)-- to take a verdict for the penalty, and to enter judgment on the penalty for the obligee for the benefit of all parties injured by breach of the condition of the bond. That thereupon, to avoid a multiplicity of suits, and secure equality among claimants an order should be published requiring them to come in by a day certain, prove damages, and obtain a share in the proceeds of the execution. The counsel for the plaintiff in this case presses upon the court that this is the practice we must observe under section 914, Rev. St. U.S. This case of State v. Moses goes beyond the cases cited above of Treasurers v. Bates, Mitchell v. Laurens, and others. These consolidated existing suits, and brought them into one judgment on the bond. State v. Moses invites the presentation of claims not yet in court. There is but one case pending on this marshal's bond besides this. That is U.S. v. Blythe. In it the prayer is not for the penalty, but for the breach of the bond. It was said at the hearing that there are other claims not yet sued. State v. Moses was decided by a court which can administer at the same time and in the same pleadings legal and equitable relief. In order to avoid a multiplicity of suits, and equitably administer assets, it can give judgment, call in creditors, and distribute a fund pro rata, if need be. I have serious doubts if this court, as a court of law only, can administer this relief, and if the practice so laid down can be followed. Congress has legislated on this subject. Rev. St. Secs. 784, 785. ...