Wheeling v. Black et als.

• Decision Date: 06 December 1884
• Citation: 25 W.Va. 266
• Court: West Virginia Supreme Court
• Parties: Wheeling v. Black et als.

25 W.Va. 266

Wheeling

v.Black et als.

Supreme Court of Appeals of West Virginia.

Submitted Septembers, 1884.

Decided December6, 1884.

1. Where a declaration on abend with collateral condition contains a general and also special assignments of breaches, the defendant may properly demur to the declaration and to each assignment of breaches, (p. 273.)

2. If in such case the demurrer is simply to the declaration and the latter contains matter sufficient to maintain the action, the demurer must be overruled, although some of the breaches assigned are insufficient, and the grounds of such insufficiency are specified in the demurrer, (p. 273.)

3. It is a general rule in actions on such bonds, that the breaches will be sufficiently assigned by negativing the words of the condition, (p. 273.)

4. This general rule is universal where the condition provides for a single act to be done, but where it provides for many things of different kinds to be done, the omission of any one of which would constitute a breach, it is usual and proper to make special assignments of the breaches of each kind or class of such acts. But it is not necessary to set forth each single actor the several particular sums of money received constituting the breaches, (p. 274.)

5. Under our statute sec. 46 of chap. 160, Acts of 1SS2 providing for the filing of a bill of particulars of the plaintiffs claim, the necessity for special assignments ot breaches is to a great extent if not entirely obviated. By filing such bill of particulars with his declaration the plaintiff may dispense with such special assignment in most if not in all cases, (p. 274.)

6. Where by the charter or organic law of a municipal corporation the officers are to be elected for a term of years specified, and the charter or ordinances contain no restrictive clause or words, the officers continue to hold and exercise their offices, after the expiration of such specified term, until they are superseded by the election of other officers in their places, (p. 275.)

7. B. having been elected by the council of the city of Wheeling collector of said city for the unexpired portion of the current term of said office, and having continued to hold and exercise the duties of said office after theexpirationof said current term and until his successor was elected and qualified. Held:

I. B. legally continued to hold and exercise the duties of said office until his successor qualified; and

II. The sureties on the official bond of B. are bound to the same extent for any default while thus in office after, that they are for defaults committed before, the expiration of the current term specified, (p. 277.)

8. Special assignments of breaches being merely in the nature of bills of particulars or notices of the character of the plaintiffs demand, no such assignment can be held bad on demurrer if it contains any single averment constituting a breach of the condition of the bond, even though it contain other matters which do not constitute such breach. The proper mode of reaching such irrelevant matters is to move to have them stricken out, or to object to the introduction of evidence to prove them. (p. 278.)

9. In an action in which a municipal corporation is plaintiff, a subpoena duces tecum may be awarded for the production of a document in the possession of the defendant on the affidavit of members of the council of such corporation having peculiar knowledge of the importance of such document as evidence for the plaintiff, (p. 279.)

10. On the (nets appearing, a motion by the defendant for a change of venue was properly overruled, (p. 279.)

11. An application for a change of venue should be made at the earliest opportunity, (p. 280.)

12. Our statute sec. 1, chapter 02, Acts 1881, declaring that no judge or officer of a court shall be disqualified from performing his official duties in any cause by reason of the fact that he is a citizen and tax-payer of the county, district, or municipal corporation interested in or a party to such cause, is constitutional, (p. 280.)

13. A municipal court of a city will take judicial notice of the ordinances of such city, and they need not be pleaded, (p. 281.)

14. When a collector of a city collects from the tax-payers by virtue of his office interest on taxes, he is in no position to assert that said interest was illegally collected; and in an action brought against him for such interest by said city he will not be permitted to defeat the same by alleging such illegal collection, (p. 281.)

15. A city or other collector of public taxes, which bear interest, is liable for interest accrued on said taxes; and if he fails to account for the same, and instead of doing so he deposits the proceeds of such taxes in bank and takes to his own use the interest paid by the bank on such deposit, he and his sureties will be liable to said city for the specific interest so received by him from the bank on such proceeds, (p. 283.)

16. In an action on a bond with collateral condition, to which the only plea is conditions performed, an instruction, which assumes that the defendant, a tax-collector, may have received interest on the taxes collected by him or their proceeds which it was his duty to pay to the plaintiff, and places the burden of proving that he has not paid or accounted for said interest on the plaintiff, is erroneous and was properly refused, (p. 285.)

17. An instruction is erroneous which tells the jury, that, in order to recover for items omitted in a settlement, the plaintiff must not only prove that there was such omission, but that it was fraudulently procured, or made unintentionally and through mistake, and that in the absence of any evidence of the circumstances attending the settlement, the jury cannot infer the existence of such fraud or mistake; and especially is it so, when there is evidence in the case tending to show that such omission was caused by the suppression of facts on the part of the defendant which it was his duty to disclose, (p. 286.]

Statement by Snyder, Judge:

Action of debt on the official bond ot George Q. Black as collector of the city ot Wheeling, brought May 19, 1879, by said city against said Black and W. II. Woodward, 11. A. McCabe, B. M. Eoft and T. II. Reed his sureties on said bond. The action was commenced in the municipal court of Wheeling and was, September 20, 1880, upon the motion of the defendants, removed therefrom to the circuit court of Ohio county, in which court, it was docketed and by consent ordered to be proceeded in there, in all respects, as if it had been originally brought in that court.

At the March rules 1881, the plaintiff filed an amended declaration. The bond sued on is in the penalty of $30,000.00, dated August 25, 1874, and payable to the city of Wheeling. Its condition is as follows:

"The condition of the above obligation is such, that whereas, the above bound George Q. Black was, on the eleventh day of August, A. D. 1874, duly elected collector oi the city of Wheeling by the council of said city tor the unexpired portion of the current term of said office and hath accepted the same: Now, if the said George Q. Black shall well and truly account for and pay into the treasury of the said city, at the time or times which are or may be prescribed by the council of said city, all taxes which shall in the year 1874 be levied and assessed on the personal property and on the real estate and tithables in said city, and also all water rents assessed or due while he is such collector or which shall be placed in his hands for collection, and all taxes and assessments which it is or may be made his duty to collect, and shall in like manner account tor and pay into the treasury of said city or into the hands of a receiver of said city, or to such person or persons as may be entitled to receive the same, all moneys which may come into his hands under or by color or pretense of his office, and shall do and perform all things required of him as such collector by the ordinances ot said city, and shall in all things diligently, honestly and faithfully discharge the duties of his said office, then the foregoing obligation shall be void, or otherwise to be and remain in full force and virtue."

The declaration, which occupies twenty-five manuscript and over fourteen printed pages ot the record, is too long to be inserted here especially as it would subserve no useful purpose to do so. Only a general statement of its nature and purport will be given here, and the portions assailed as insufficient will be more particularly noticed hereafter in the.consideration of the demurrer thereto.

It contains but a single count, and alter declaring on the bond in the usual form and setting forth its condition in full, it avers that the city of Wheeling, the plaintiff, had on April 20, 1870, passed an ordinance consolidating the offices of "collector of assessments" and "collector of water rents" and creating the office of "collector of the city of Wheeling," conferring upon the latter the duties and liabilities theretofore pertaining to the two former offices as then prescribed by the laws and ordinances ot said city, and that it was provided by an ordinance of said city then in force that the term of office of each of said first mentioned officers should continue until his successor should be elected and qualified, that the successor of said Black as such collector, qualified on September 14, 1875, that the said current term of office of said Black as collector continued until the said day, and that as such collector he was charged with and assumed the duties of collecting, accounting for and paying to the plaintiff all taxes levied and assessed within and for the year 1874, for the use of said city on the real and personal property, tithables and water rents of and within said city, that taxes were levied and assessed within said year on the real and personal estate and tithables in said city for a large sum, to-wit: $100,000.00, and...