84 Va. 282 | Va. | 1888
delivered the oiiinion of the court.
Did the evidence offered by the defendant constitute any valid defence to the action ? The application of the payments made by Sterling above stated, was made by the creditor by the direction of the principal debtor. In a similar case upon this point decided by this court in 1875, (the case of Chapman v. Com,., reported in 25 Gratt., 721), Moncure, P., delivering the unanimous opinion of the court, so far as this point is involved, said : “ Scott owed two debts to the commonwealth, for which different sets of sureties were liable. He made payments to the auditor on account of these different debts at different times, which payments were applied by the auditor according to the direction of the debtor. This was perfectly proper if the auditor acted fairly, and it is not pretended that he did not; certainly there is no evidence in the record tending to°q>rove that he did not. If he had known that money applied by Scott to the payment of a debt for which his sure
This case seems to be decisive of the case at bar on the cprestion of the appropriation of payments, and rve do not consider that the citations by the learned counsel from Be Colyer on Guaranty, and his citation of cases, affect this question. There was no connivance of fraud on the part of the auditor suggested in either instance. The application of payments as made by them seems to have been in accordance with the settled law upon the subject.
Upon the suggestion that time was given by the several auditors, and that suit was not brought, as the law required, upon the failure of the debtor to pay promptly, it is not charged that there was any fraudulent concealment on the part of the auditors of the true facts in each case; and it is admitted that diligent inquiry on the part of the defenlauts would have
In the case of U. S. v. Kirkpatrick, 9 Wheat., 720, Mr. Justice Story, delivering the opinion of the supreme court of the United States, said these regulations as to settlements “are provisions of law created by the government for its own security and protection and to regulate the conduct of its own officers. They are merely directory to such officers, and constitute no part of the contract of the surety.” These provisions are merely directory to the officers, and intended for the security and protection of the government, by insuring punctuality and responsibility, but they form no part of the con
It is said that a surety is a favored debtor. Ilis rights are especially and zealously guarded, both at law and in equity, and the slightest fraud by the creditor annuls'it. His contract, exactly as he makes it, is the measure of his liability, and cannot be varied without his consent. With these privileges, however, are associated certain duties. He must take care of himself, and obtain all the information essential to his interest which lies within his reach. It is no part of the duty of the creditor to furnish him such information. If he neglects his interest and a loss occurs, he must bear it, unless he shows that it was in consequence of the creditor’s fraud. (Murfree Off. Bonds, § 704.) And it is said by the same author that “the failure of the public officers of the Hnited States to assert the right of the government against a defaulting principal in an official bond will not operate to discharge his sureties. Their laches, it has been repeatedly said, cannot affect the government; and even if the delay be long continued, so that the sureties lose the benefit of remedies which would have been available if the government had acted promptly, it is, so far as they are concerned, damnum absque injuria. A lapse of five years after the cause of action accrued will not create any presumption of' payment or in any degree operate in favor of the sureties.” Section 769, Id. See Doe v. Postmaster-General, 1 Pet., 318-827; 4 Myer’s Ped. Dec., §§ 770, 771; U. S. v. Kirkpatrick, U. S. v. Van Zandt, supra.
In this case, if the auditor received money paid him by the treasurer, applied it, as directed, to the debt due the State, in accordance with well-settled principles of law, in' what degree could that act create any valid defence for the defendants ? If the books of the auditor always showed the true state of the treasurer’s account, and the sureties, confiding in the integrity
Judgment affirmed.