Poling v. Maddox et al.
| Decision Date | 09 January 1896 |
| Parties | Poling v. Maddox et al. |
| Court | West Virginia Supreme Court |
Bond given by deputy to a sheriff, with condition to faithfully discharge all duties of such deputy, and to account for and pay over to the sheriff all money which might come to the deputy's hands by virtue of his office. This is a private bond or contract between the parties to it, not a public one. On it the sheriff may maintain an action to recover taxes collected by the deputy as such, without first paying such taxes to the public treasury.
Such bond is not a mere bond of indemnity.
A plea of non damnificatus is applicable only to a bond or contract to indemnify and save harmless, or one with words of same import, and not to one where the engagement is to do some affirmative act, though it may operate to indemnify, and the bond may have been intended to save its beneficiary from loss.
On a bond merely conditioned for indemnity, where a plea of non damnificatus would be proper, a plea of conditions performed answers the same purpose. Archer v. Archer's AdmJr, 8 Gratt.
The remedy by motion ou a bond of a deputy sheriff to his principal, under sections 36 and 37 of chapter 41 of the Code of 1891, is a further remedy, and does not take away the proper common-law action on such bond.
If a creditor assure a surety of his debtor that the debtor has paid, and is not In default, and thus induce the surety to take no steps to secure himself, or compel payment by the principal debtor, while solvent, and he becomes insolvent, the surety is discharged.
Such assurance constitutes an estoppel in pais, and is available in equity, but not at law.
Duplicity in a plea is no longer ground of demurrer or objection to it.
D. A. Brown, Elmer L. Stone, James A. Seaman and C. E. Hogg for plaintiff in error, cited 38 W. Va. 549, 557; 75 Va. 628; 1 Comstoek (N. Y.) 550; 6 L. R. A. 278; 15 Minn. 461; 8 Wend. 452; 109 Mass. 72; Abbott, Trial, Ev. 510-16; 21 W Va. 530; Hogg, PI. & Forms, 179; 37 W. Va. 665; 50 Vt. 494; 5 Am. & Eng. Enc. Law 564; 10 W. Va. 507, 509; 76 Iowa, 47; 3 W. Va. 280; 20 Me. 228; 21 Me. 137; 1 Herman, Est. & Res Judicata, 332; 2 Id. 872, 1115; 16 Me. 146; 26 Wis. 84; 30 N. Y. 519; 29 Ga. 312; 35 Vt. 205; 17 Conn. 345; 9 Utah, 476; 43 N. II. 282; 4 Minn. 217; 100 U. S. 578-84; 102 TJ. S. 68; 18 Gratt. 801; 6 W. Va. 110; Code, c. 7, s. 13.
W. A. Parsons and J. A. WOOddell for defendant in error, cited 30 W. Va. 107, 113; 86 Va. 92; 44 N. J. Eq. 363; 52 Vt. 24; 2 Am. Rep. 315; 18 Am. Rep. 641; 4 W. Va. 45; 2 Am. & Eng. Enc. Law, 464, n. 6; 7 Exch. 744; 24 Neb. 674; 35 Vt. 476; 5 Am. & Eng. Enc. Law, 630; Murfree, Sheriffs, § 64; 18 Ala. 651: 13 Mass. 295; 38 W. Va. 549; 35 W. Va. 658, 659; 4 W. Va 48, 49; Steph. PI. 171, 206; 2 Greenl. 275, 276, 221, 282; 1 Chitty (14th Ed.) 483, n. 2; 2 Rand. 20; 1 Rob. Prac, (old) 349, 351, 352, 404, 405; 6 W. Va. 508, 514, 515; 18 W. Va. 582, 299; 20 W. Va. 46; 26 W. Va. 345; 23 Gratt. 636-7-8; 2 Tack. 290, 291; Doug. 218; Tidd. 792; 3 Rand. 516; 37 W. Va. 706.
This was an action by Poling against Maddox and others in the Circuit Court of Jackson county, upon a bond executed by Maddox and others to Poling, given upon Maddox's appointment as deputy for Poling, sheriff of Jackson county, to recover money collected by said deputy for taxes in his hands, resulting in judgment for plaintiff upon a demurrer to evidence, and a writ of error sued out by de. fondants.
The one reason given by counsel for defendants why judgment should have been given for defendants on the demurrer to evidence is that it is not averred or shown that Poling, the sheriff, had ever paid over the taxes placed in the hands of his deputy for collection, and that he can not recover without showing that he had been damaged by having had to account for such taxes.
A deputy sheriff is only an agent of the sheriff. Murfree, Sher. § 75. The sheriff is liable for his acts, and the fact that an action on the case may also lie against the deputy does not render him any the less an agent. 8 Rob. Prac. (New) 79; Lucas v. Locke, 11 W. Ya. 81. As Judge Oarr said, in Jacobs v. Hill, 2 Leigh, 397, a contract between a sheriff and his deputy is a private affair, and therefore the bond of the deputy is not an official or statutory bond with condition prescribed by statute, but may contain just such provisions to protect the sheriff, and impose duties, obligations, and liabilities on his agent, the deputy, as may be inserted in it. It is a common-law bond, not a statutory one. Murfree, Off. Bonds, § 214; Murfree, Sher. § 64. We must, then, look to the provisions of the bond. The bond in this case contains a covenant in its condition that the deputy shall faithfully discharge all his duties as deputy sheriff. On such a provision it was held in Kentucky that the condition is broken by the deputy's failing to pay over to a creditor money collected on execution, and the sheriff may forthwith sue on the bond. Robertson v. Morgan's Adm'r, 3 B. Mon. 307, cited in 2 Rob. Prac. 122. Such a stipulation is broad. Surely, when a deputy sheriff collects taxes, or any agent collects money which he ought to pay to his principal, he breaks the covenant of his bond binding him to faithfully discharge his duties. But that clause is not the only one in this bond bearing on this matter, as it contains the further clause expressly providing that Maddox "shall account for and. pay over to said James M. Poling all moneys which may come to the hands of said A. A. Maddox by virtue of said office of deputy sheriff." Clearly that clause was violated in its very letter by the failure to pay to the high sheriff money collected by his deputy. It would seem that nothing could be plainer. The instant he received the money duty commanded him to pay it to his principal, even without the letter of that provision, and more surely under its letter, because the legal title to the tax tickets was in the sheriff; and, as it was money collected by an agent for his principal, it was that principal's money. Deputy had collected it for the use of the sheriff. Why allow that deputy, with money in his hands, the property of his principal, to say to him, "You have not paid the taxes to the state, and I will not pay you?" The duty of the high sheriff to the state is one thing. The duty of the deputy to that sheriff is another and private relation between them. It is no business of the deputy whether the sheriff ever pays the state or not, He has a right to have the deputy pay, so that he may pay.
Authorities for this principle are numerous, if any were needed. In Badgett v. Martin, 12 Ark. 780, it was held, on a bond of a deputy sheriff to his principal, conditioned to well and truly perform the duties of his office, that an action accrues and limitations commence to run whenever the deputy fails to pay over money collected by him, and that it is not a mere bond of indemnity against actual loss or damage to the principal, and therefore action accrued whenever the principal's liability became fixed by the failure of the deputy to pay over the money. And it was so held in Mullen v. Whitmore, 74 1ST. 0. 477, on a bond conditioned for the faithful discharge of the duties of a deputy. Where a bond indemnifies, not only against actual damage, but against any liability for damage, the party need not wait to commence his suit until he has paid such damages, the right of action being legally complete when he becomes legally liable. Chace v. Hi anion, 8 Wend. 452; Murfree, Off. Bonds, § 497, where it is stated that the general rule is that where the guaranty is for the due performance of duty, the breach occurs and action accrues whenever that duty is not duly performed. The last authority says, as reason says, that if the bond is conditioned that the deputy will duly perform his duties, it is not a mere bond of indemnity against actual loss, but there is a breach whenever the deputy fails to pay over money collected. Even if a bond be one intended to indemnify, if it engage the party to make a payment, or to do a particular act to operate for such indemnity, as here the deputy engaged to perform his duties faithfully and pay over, if there be fail ure to pay or do that act, an action lies, and the party can not say the other party has not been damnified by a plea of "not damnified" (non, damnificatus). 2 Rob. Prac. 116; 4 Minor, Inst. 1220. In Board v. Dunn, 27 Gratt. 608, in a proceeding on a sheriff's bond, with condition for the faithful discharge of duties, it was held that a plea of non damnificatus was not admissible, as it was admissible only on a bond to indemnify and save harmless; thus deciding that a bond with provision for faithful discharge of duty, like the one here, is not a mere bond of indemnity, and that under it a party could not say, when there was a breach by the obligor of its condition, that the plaintiff had not been damnified. So a bond with such condition is pronounced, in the opinion by Judge Woods, not a bond of indemnity merely, in State v. Hays, 30 W. Va. 113 (3 S. E. 177.)
But what of the case of Adkins v. Fry, 38 W. Va. 549, (18 S. E. 737)? It holds that in an action by a sheriff on the bond of a deputy, conditioned for the faithful performance of duties and to pay over money coming to his hands, the right of action does not accrue at the time of the default of the deputy, and the statute does not begin to run till payment by the principal. As applied to the facts of that case, that is right, because there was judgment against the sheriff;...
To continue reading
Request your trial
-
First Nat. Bank Of Cumeerland. v. Petitioner
...cited, and Id. c. 21; Leonard v. County Court, 25 W. Va. 45; Bigg v. Parsons, 29 W. Va. 522, 527 (2 S. E. 81); Poling v. Maddox, 41 W. Va. 779 (24 S. E. 999); Glenn v. Morgan, 23 W. Va. 467. If the creditor deprives the surety of any right which he would have had against the original debtor......