M'Whorter v. M'Gehee

1 Stew. 546 | Ala. | 1828

JUDGE SAFFOLD,

after stating the facts of the ease, as above recited, delivered the opinion of the Court as follows:

It is said that the facts agreed did not authorize the judgement. No objection appears to have been made as to the admissibility of any of the evidence, or the authority of the Court to determine any contested fact: but it is contended, that the facts do not establish that M‘Whorter Was sheriff at the time the instrument, purporting to be a |30ndi was executed. Independently of the evidence of e]ectjon, commission and qualification, as stated by Judge Brown, the fact of his having claimed and quietly exercised the office for a considerable time, and of he and his securities having executed the office bond, containing an admission that he was sheriff, constitutes, as we conceive, an estoppel as to them, and supersedes the necessity of other evidence of the fact, as far as they only are concerned. This principle is recognized by authority presently to be noticed on the doctrine of escrow.

As to the question raised respecting the sufficiency of the bond, which also embraces the inquiry, whether there was any vacancy created in the office, from a failure of the sheriff at any time to give a legal bond, reference must be had to the statute of 1819, ^a the act of 24th December, 1822, ^b and a subsequent act of the same session, December 31. ^c The first statute referred to, is found to have had a limited object, and to apply only to the sheriffs who had then recently been elected as the first under the constitution, and directed that they should, on or before thq/zr.si Monday in April, 1820, give bonds, with such number of good and sufficient securities, as should be approved of by the County Courts respectively, in such sum in addition to the sum of §4000, previously required by law, as they might deem necessary, &c.; and it further provided, that if any sheriff failed or neglected to comply, he should thereby vacate his office, and the same was thereby declared vacant. But as this sheriff came into office under the second election after the adoption of the constitution, the statute quoted does not affect the present question, unless by analogy, in shewing before whom the original bonds of sheriffs should be taken; as no previous statute is found containing that direction. The second act referred to, ^d was passed subsequent to the date of this sheriff’s original bond, and prior to the second and third. It contains a general requisition that “all sheriffs then elected, or thereafter to be elected or appointed under the constitution, should, before entering on the duties of their office, give bond with such number of good and • sufficient securities as may be approved of by the County Courts respectively,” &c. as in the former act. It provided also, that it should “be the duty of the sheriff to renew his bond annually, if required by the County Court.” The succeeding section provides further, “that .any sheriff failing or neglecting to comply with the pro» visions of the preceding section, shall vacate his office, and said office is hereby declared vacated.” In the construction of this statute, in relation to sheriffs, who, like the present, had previously been elected, given bond, and entered on the duties of the office, there is some difficulty. Could it have been the intention, that one thus situated should absolutely vacate his office, and forfeit his claim to it, by mere neglect to renew his bond, without any notice or requisition to that effect from the County Court, securities, or otherwise. We are drawn to the conclusion, that such could not have been the intention of the Legislature, and that such construction would produce much evil and inconvenience. Such neglect or failure, may well have been made the foundation of judicial proceedings against a sheriff, with a view to vacate his office; and probably a refusal to give a new bond, would be sufficient to afford validity to the appointment of a successor, as in case of vacancy, had advantage been claimed, and any such been made; otherwise, we think the failure could not materially affect his authority, and much less the responsibility of himself and securities. As it is not necessary to the decision of this case, we- decline the expression of any absolute opinion as to the strict legal validity of the first or second bond, further than to say, there was no such forfeiture of the office, as can avoid the force of the third bond subsequently^ given in strict conformity to the third statute referred to. ^a The pro’-i-sions of this statute are, that whenever application shall be made to the Judge of the County Court, by the securities of any sheriff, he shall issue a citation to such sheriff to appear before him on some day therein named, not less than ten nor more than fifteen days, then and there to enter into a new bond, &c. and if any sheriff being duly served with a citation as aforesaid, shall fail or refuse to give such bond, then the Judge shall decree the office to be vacant, and cause an entry thereof to be made on the records of the County Court.

On application and notice as contemplated, McWhor-ter and these securities gave, before the Judge of the County Court, the third bond, which is now in contest. The amount of the bond is the same as the two previous bonds. As to the objection that the same was not origi--nally established by the County Court instead of the Judge thereof, we think the last act referred to, gave the Judge fu]i COntroul of the subject, so that he could have varied the amount or 'form of the bond, had he found it necessary; and that this would be a correct construction whether the two acts of 1822 used the terms “County Court” and “Judge of the County” convertibly or not. In taking such new bonds, the authority is expressly given to the Judge, and the necessity of speedy attention to the object necessarily excludes the idea of waiting for a stated term of the Court; and whether the Judge suddenly assumed the capacity of a Court, and had the records present, and entries made, or no.t, can make no substantial difference.

It is further contended, that this bond was given as an ¡escroto. As already shewn, it is not stated that any one signed the bond subject to any condition. Penland only states, that he, who had not yet signed, said to the Judge, in presence of Goyne, “that he would let the bond go,” the latter who had signed remaining silent. Someo.fthe-obligors signed and sealed .on the seventh-; a sufficient number not appearing on that day,- the bond at their request, remained open until the next day, when the others signed and sealed the same for the purposes therein expressed. It was first and last left in the ■ hands of the Judge to dispose of according to law. It is immaterial what language or manner is adopted for the delivery of a deed, provided it be signed and sealed, and expressly, or by necessary implication, directed to the object for which it was prepared. In this case, we think the delivery was sufficient;- nor is it material that the obligors signed on different days, as it is sufficient here to date the existence of the bond from the latter day.

On the question respecting the different days on which the several obligors signed, and the effect thereof; as also whether the securities, after signing the office bond, are not estopped to deny the legality of M‘Whorter‘s appointment, the case cited ^a by the counsel for the defendant in error, is fully in point. There it was held, that the name of an obligor may be erased from a bond, and a new obligor inserted by the consent of all the parties, without avoiding the bond. Such consent may be proved by evidence; and it is immaterial whether the consent be given before or after the execution of the bond. In that case it was also decided, that obligors were estopped to contest the penalty of the bond, on the ground of excess, unless it manifestly appeared to be so notwithstanding it was taken in virtue of a statute, by an officer of the government. In the previous decision of the same Court, ^a the defence was sustained on the ground of excessive penalty; but there the sum was grossly exorbitant, and extorted by the officer charged with the duty of taking it, and reluctantly given by the obligors to obtain a clearance for the vessel. Here it does not appear that any objection was, or reasonably could have been made to the penalty of the bond.

We are of opinion, that this is a good and sufficient bond, under the statute last referred to. This conclusion -obviates the necessity of any examination into the dis-criminations contended for between statutory and common law bonds.

As to the exception urged, that this sheriff had made himself responsible for this debt, before the securities became bound, inasmuch as he had failed to make a legal return on the original execution, having only endorsed it “not satisfied,” we yet hold, as heretofore adjudged, that this return was a nullity. But we are equally clear, that the sheriff’s previous dereliction of dutv, for which on advantage was claimed, cannot affect the responsibility of himself and securities for the money actually collected subsequent to the date of this bond.

It is further objected, that a recovery in this form may operate unequally and oppressively on such of the securities as may in the first instance be compelled to pay, as they will not be entitled to the same summary redress against the co-securities. To this it is sufficient to say, that by statute, all bonds in this State are interpreted as joint and several, and that the obligees, or those for whose security they are designed, may seek redress against part or all the obligors, and the latter are left to adjust the accounts between themselves according to the existinglaw, whatever it may be.

In this case, judgement was ordered against the sheriff, and such of his securities as were served with notice,- or voluntarily appeared, for the debt received with interest and costs. Damages were not allowed. Goyne, one of ihe securities, who was not served with notice of the motion, appeared and joined in tbe pleas, which is tantamount to service.

yye fin(] n0 error jn the decision of the Circuit Court; the judgement, as signed by the clerk below, is uncertain as to the defendants embraced by it. The clerk here is directed to correct the judgement corresponding to the decision of the Circuit Court.

Judgement corrected at the costs of the plaintiffs in error.

CiriER Justice Lipscomb and Judge Perry, not-sitting.

a Laws Ala. 677,

b . Ibid 9. 535 4.

c ffiud.p.68s.

a «Page ess,

a Speake & others vs. The United States, 9 Cranch 28.

a The United States vs. Gordon et al. Cranch 287.