45 W. Va. 59 | W. Va. | 1898
Charles H. Miller was sheriff of Berkeley County for a term of four years, commencing 1st of January, 1889, and had in his hands taxes against Wisener for 1889, 1890, 1891, and 1892. The legislature passed chapter 23, Acts 1893, providing that a sheriff of a former term should have power of distress for taxes unpaid, and gave the party whose property might be levied on the right to give a forthcoming bond, such as might be given in case of the levy of a 'fieri facias or distress warrant, and provided that such bond should be returned to the clerk’s office of the circuit court, and that such proceedings might be had thereon as were provided in relation to forthcoming bonds under distress warrants, and that “defense may be made to a suit or motion upon such bond that the amount levied for is not due in whole or in part, or that the levy or distress is otherwise illegal.” Miller levied the said taxes upon Wisener’s property, and Wisener gave such forthcoming bond; and a motion for an award of execution on said bond .was made by Miller in the circuit court of Berkeley, and Wisener filed plea of payment and specification of payment and set-offs. The case was tried, and, upon a demurrer to evidence, judgment was rendered for Wise-ner, and Miller comes to this Court by writ of error.
Wisener’s defense is that, before the opening of Miller’s term as sheriff, they made a contract by which Wisener was to act as counsel for Miller, as sheriff, for his term of
I next inquire whether the demand of Wisener can be allowed as a payment. Miller’s counsel contends that it is but a cross demand, never actually applied as payment,— only an unfulfilled agreement to apply it. If this were so, it could not be a payment, but a set-off, as a cross demand cannot be made a payment except by agreement. 18 Am. & Eng. Enc. Law, 152. The question is whether this agreement was merely executory, and hence needing actual execution as a payment, and, in its absence, not a payment. I think that, as the services were performed and the contract executed, it would be a payment in its nature, as “a payment is, by consent of parties, either expressed or impl'ed, appropriated to the discharge of the debt.” Wat. Set-off, 8. I think that, on a demurrer to evidence, we must say that there was a previous agreement to apply it as payment, thus taking it out of the category of set-offs, and as the services were rendered, if the agreement were valid, it would be a payment. We are asked to apply Wisener’s demand as a payment, and we must inquire as to its validity; and we find it to be an agreement between a sheriff and an attorney at the- opening of the sheriff’s term of four years, by which he employs the attorney for four years ahead, at a fixed sum, to be applied in discharge of public taxes. Such a contract is contrary to public policy, because it tends to divert from the public treasury its money to pay the sheriff’s private debt, and no court ought to enforce it. The sheriff can receive nothing but money in payment of taxes. 2 Desty, Tax’m
It is claimed that, after time for payment by a sheriff into the treasury, the law presumes such payment, and that taxes then become a private debt liable to set-off. This seems not to be so. If so, why did it not admit set-off in Humphreys v. Patton, supra, where some of the taxes were two years old? The proposition that, when he has settled with the treasury, the taxes are open to set-off, is not supported by authority. Davie v. Blackburn, (N. C.,) 23 S. E. 321. But there is a consideration which, to my mind, denies this suggestion any force, and it is that not only is there no proof that the county and district taxes had been paid in this case, but, if they had been, it would make no difference, as the sheriff is treasurer as to them, and the fund in his hands is applicable to any draft that may come; and to allow a set-off would be to divert money, in law applicable thereto, to meet private debts, and let the public drafts go unpaid. In Hinchman v. Morris, 29 W. Va., 699, (2. S. E. 863), Judge Green expresses the opinion that where the sheriff had paid to the treasury a taxpayer’s tax, and the statute gave him further time to levy, that statute would not operate to give him a right to recovery as if based on private demand against the taxpayer; that is, it would still be merely a tax. If so, that excludes the set-off.
It is contended that this contract to perforin attorney’s services is void, under the statute of frauds, as a contract not to be performed within a year. It was not intended to be performed in one year, nor could it possibly be, and it would be void under that statute. 8 Am. & Eng. Enc. Law (1st Ed.) 685. “A contract for performing services
Reversed.