Mabscott v. Saunders., (CC 487)

• Decision Date: 17 October 1933
• Docket Number: (CC 487)
• Citation: 114 W.Va. 196
• Court: West Virginia Supreme Court
• Parties: Town op Mabscott v. N. L. Saunders et al.

114 W.Va. 196

Town op Mabscott

v.N. L. Saunders et al.

(CC 487)

Supreme Court of Appeals of West Virginia.

Submitted October 11, 1933.

Decided October 17, 1933.

Municipal Corporations

Code 1931, 61-7-5, imposing liability upon the official bond of an officer (when not less than $3,500.00) for his unlawful use of a pistol "whether such bond is so conditioned or not," ex proprio vigore becomes an added condition to the bond. Town of Lester v. Trail. 85 W. Va. 386, 1O1 S. E. 732.

Certified from Circuit Court, Raleigh County.

Action by the Town of Mabscott, on the relation of William Brewer, against N. L. Saunders and others. A demurrer to the declaration was sustained and the ruling certified for

review.

Reversed.

W. H. McGinnis, Jr., for plaintiff.

J no. Q. Hutchinson, Ben H. Ashworth and David G. Lilly, Jr., for defendant Dennis L. Hill.

Hatcher, Judge:

This is an action of debt on an official bond. The circuit court sustained a demurrer to the declaration and certified to this Court its sufficiency.

The declaration alleges the regular appointment and qualification of defendant, N. L. Saunders, as Town Sergeant of the Town of Mabscott, and that he executed a bond for $3,500.00 wuth defendant, Dennis L. Hill, as surety, conditioned as follows:

"That Whereas, the said N. L. Sanders has been appointed by the Municipal Council of said Town of Mabscott as Town Sergeant of said town, and pursuant to Section 2, Article 7, Chapter 8 of the Code of West Virginia, has been appointed by said Municipal Council to collect and promptly pay into the treasury all taxes, special assessments, fines and other moneys due said municipality, during his term of office as such Town Sergeant, or until the Council shall, by order, designate someone else.

"Now, therefore, if the said N. L. Sanders shall well and truly perform his duties as said Town Sergeant in collecting and paying over said taxes, special assessments, fines and other moneys due the municipality as aforesaid, and shall well and truly account for all moneys coming into his hands by virtue of his appointment as aforesaid, then this obligation to be void, otherwise it shall remain in full force and' virtue.''

The declaration further alleges that the bond was approved by the common council of Mabscott, and was the only bond given by Saunders; that he carried a pistol by virtue thereof; and that while acting as Town Sergeant, he negligently and unnlawfully wounded plaintiff, William Brewer, with the pistol, inflicting damage thereby on Brewer to the amount of $3,500.00, etc.

Defendants contend...