| Ill. | Nov 20, 1882
delivered the opinion of the Court:
This was an action of debt on a penal bond having this condition: “Whereas, the above bounden Benjamin H. Seligman has, by the said John Hoffman, sheriff, been duly appointed deputy sheriff of Cook county; now, if the said Benjamin IT. Seligman shall well and faithfully perform all the duties of the said office as deputy sheriff that are or may be required of him by law, then this obligation to be void, otherwise the same shall remain in full force and effect. ”
The declaration contained a general breach that Seligman did not perform all of the duties of the office of deputy sheriff required of him by law, but neglected and refused to account for and pay to plaintiff divers sums of money which were received by Seligman as deputy sheriff, and which it was his duty to account for and pay to plaintiff. There were also other special breaches that-various executions were delivered to Seligman, upon which he collected moneys which it was his duty to pay to plaintiff, but to do which he failed and refused. Defendants filed a general demurrer to the declaration, which was overruled. Defendants thereupon filed a number of pleas. A demurrer was sustained to the fourth, fifth and seventh pleas, and defendants abided by their pleas. Issues were joined on the other pleas, and a trial had, and the jury found a verdict for the penalty of the bond, and 12351.36 damages. A motion for a new trial was overruled, and judgment entered on the verdict, and defendants appealed to the Appellate Court, and now to this court.
It is urged that the court erred in rejecting a challenge to a juror on the ground that he had read an account of the case in the newspapers. The juror stated on his voir dire that he remembered no part of the account he thus saw and read,—that the account made no impression on his mind, nor had he then any impression, and it would not require evidence to remove the impression. He said if the evidence was evenly balanced it might be difficult to decide. We regard the juror as impartial, and qualified. Such a juror would no doubt regard an instruction of the court as to his duty in case the evidence was evenly balanced.
It is insisted that the bond suek upon is void, and no recovery can be had on it. The statute authorizes the sheriff to take from his deputy a bond, as security for his indemnity. The statute prescribes no form for the condition of such a bond, and in the absence of such a provision mere technicalities should not render it void. Unless the condition is contrary to public policy or in contravention of the law, such bonds should be upheld and enforced. The condition of this bond is neither, and we are unable, for any reason, to say it is inoperative. The conditions are sufficiently explicit and free from doubt, and were agreed to by appellants when they signed the bond.
But it is said that there is no such office as deputy sheriff, and Seligman is described as such an officer in the condition to the bond. A deputy sheriff performs the functions of the office of sheriff. He occupies the place and performs the duties of an officer, and it does not matter whether he in fact is an officer or only occupies the place and performs the duties. Such deputies are generally known and designated as officers. But if it were not so, defendants in their bond designate him an officer, or his place as an office, if the construction of appellants must be adopted. But the word “office,” used in the condition, may refer as well, or better, to the office of sheriff as to that of deputy. Appellants, by this bond and its condition, undertook that Seligman should perform all the duties the law imposed upon him, whether the deputyship is an office or a mere place. This is the manifest and unmistakable meaning of the condition, and as it is not prohibited by law it must be held sufficient, either as a statutory or a common law bond.
It is insisted that the general breach is insufficient to authorize different defaults in the collection of money by Seligman, and never paid to plaintiffs, to be proved under it. No reason is perceived why this is not a good breach. The condition to the bond undertakes that he shall perform all of the duties of deputy sheriff. It is conceded that it was his duty to pay to the sheriff moneys received as deputy sheriff, and the breach avers he did receive moneys as deputy sheriff, and did not pay them over. This is clearly the averment of a breach of the bond. We are aware of no rule that requires such a breach to be specific as to all of the minutiae and details of the breach. In the case of Hughes v. Miller, 5 Johns. 168" date_filed="1809-11-15" court="N.Y. Sup. Ct." case_name="Hughes v. Smith & Miller">5 Johns. 168, breaches as general as this were held good. Ch. J. Kent there says: “The breach is assigned in the words of the condition, and the assignment necessarily amounts to a breach, and when that is the case, the general rule is that the plaintiff may assign the breach generally, by negativing the words of the covenant. ” And the doctrine of that ease, it is believed, has prevailed uniformly since, if not before, its announcement. Under this breach plaintiff Was authorized to introduce evidence of Seligman’s default in failing to pay money collected by him, as such deputy, whether specified or not in the declaration.
It is also urged that all the breaches are bad because they only aver that Seligman failed to pay the money to the sheriff, when he had the same power to pay it to the plaintiffs in execution that the sheriff possessed, and this being true, the breaches should have averred that he had failed to pay the money either to the sheriff or plaintiffs in execution. Conceding this to be true, it rendered the declaration obnoxious to a demurrer. To have availed of the error, appellants should have abided by their demurrer when it was overruled, but they pleaded over, and thereby waived this ground of demurrer. A party can not, under well recognized rules, both demur and plead to the same pleading at the same time. The ground of demurrer was waived by pleading over. Defendants, however, might have pleaded and proved the payment of the money to plaintiffs in execution, as a defence. This they omitted to do, and therefore have no ground of complaint. Could they have proved such a defence they would no doubt have interposed such a plea.
It is claimed there were variances between the executions offered in evidence and those set out in the special breaches. We shall not stop to inquire whether there was such a variance, as they were properly admitted under the general breach.
The fourth plea avers that there is no record of recoveries or of the executions named in the declaration, and that no such executions ever existed and came to the hands of Seligman, and prays that these facts may be tried by the court. The plea is not responsive to the declaration, as there are no averments that any judgments were recovered, nor is there any averment therein that the executions were of record. This part of the plea traverses no averment in the declaration, nor does it confess and avoid any averment, and for that reason it was clearly bad on special demurrer. The other averment, that such writs never existed or were in the hands of Seligman, is the averment of a fact, and could not be tried by the record, hence the conclusion of the plea was certainly obnoxious to a special demurrer. The question of whether these writs ever were in the hands of Seligman, was one that plaintiff had a right to have tried by a jury. There was no error in sustaining the special demurrer to this plea.
Did the fifth amended plea present a defence to the action ? Did the mere fact that the sheriff or his principal deputy knew that Seligman did not make return of writs, in his hands on the return day, and the fact that Seligman was not removed, constitute a defence? There is no averment that either knew, or had other reason to believe, that Seligman was misappropriating moneys collected by him on executions in his hands. The mere fact that he was not prompt in returning such writs is not evidence that he was guilty of the crime of embezzlement. The plea fails to aver such knowledge or such gross negligence as to release appellants on their bond. Had the sheriff known Seligman was misappropriating the money, or had he been so notified by creditable persons, or had facts transpired that showed he was so misbehaving, then it would have been his duty to have required Seligman to settle, and removed him from office. But the plea avers no such facts. The plea avers no facts that charge any knowledge on the part of the sheriff that Seligman was a defaulter. Hence there was no fraud in failing to notify the sureties that Seligman had failed to return some executions on the return day.
As to the seventh plea, it avers that appellee, to induce appellants to sign the bond, informed them that it was a rule of the office that where money could be collected on process by deputies holding the same, they should report daily and settle for the money thus received, and thereby insure the faithful conduct of the deputies, and prevent defalcation in paying over such money, and in case any one of them failed to so report, appellee should and would remove such deputy, and advise the sureties thereof, but Seligman did fail to so report, and appellee failed to remove him, and that after such failure to report, the executions upon which the money was collected came to Seligman’s hands, and the money sued for was collected. It appears from the evidence that the rule of the office was as stated, except there was no proof that any deputy was ever removed, or that the rule was enforced with Seligman. There is no averment that the representation was fraudulently made, or that appellee did not, when made, intend to enforce the rule. The averment shows that the representations were made, and the presumption, till rebutted, is that it was fair and-honest. Again, this is not pleaded as a failure of consideration, or that the bond was obtained by fraud and circumvention. The plea avers neither. If anything, it was a contract, which appellee has broken and failed to perform. It does not go to the execution or consideration of the bond, nor does it operate as a release, and not being made for fraudulent purposes, it can not operate as a bar.
It is claimed the evidence does not warrant the amount found by the "jury. If that is a question w'e could consider, the testimony is ample to sustain the amount found. It is also claimed that the amount found is greater than the amount claimed in the affidavit of merits. This is no doubt true, but allowing interest from the time that affidavit was made, until the recovery, the sum found is not too large, and in this there was no error.
Appellants failing to show error in the record, the judgment of the Appellate Court is affirmed.
Judgment affirmed.