9 Cal. 286 | Cal. | 1858
The papers embraced in the transcript, purporting to be a statement, are liable to the objection taken in Marlow v. Marsh. The draft proposed, and the amendments to it, are not incorporated into one document, and in their separate form cannot be regarded as any part of the record. The exceptions to the evidence are not, therefore, before us, and the appeal must be determined upon the sufficiency of the demurrer, and the objections to the form of the judgment.
The action is brought against the sureties upon the official bond of Wright, formerly Sheriff of FTevada county. The bond was executed for the faithful discharge of his duties as sheriff, and the breaches assigned consist in his failure to pay over moneys collected by him as taxes, in his ex officio capacity of collector, and his neglect to furnish, under oath, the account of his transactions as such collector, on the third Monday of October, 1856, to the treasurer and auditor of the county, as required by statute. The complaint contains no averment of notice to the defendants of the default of the sheriff, and the only objections meriting
Ho averment of notice is requisite where the matters assigned as breaches lie as much in the knowledge of the one party as of the other. (Chitty’s Plead., 328.)
The defect in the approval of the bond, if any existed, could not avail the defendants. The object of requiring the approval is to insure greater security to the public, and it does not lie in the defendants to object that their bond was accepted without proper examination into its sufficiency by the officers of the law.
The offices of sheriff and tax-collector are as distinct as though filled by different persons. The duties and obligations of the one are entirely independent of the duties and obligations of the other. The case of Merrill v. Gorham (6 Cal., 41) only decides that there is no constitutional inhibition to the exercise of the two offices by the same person. The offices are not so blended that the bond executed for the faithful performance of the duties appertaining to the one would embrace, in the absence of the statute, the obligations belonging to the other. The eighth section of the Act Concerning Official Bonds, which provides that every such bond shall be obligatory upon the principal and sureties therein, for the faithful discharge of all duties which may be required of the officer by any law enacted subsequently, applies only to duties properly appertaining to his office, as such, and not to new duties belonging to a distinct office, with the execution of which he may be charged. The duties of sheriff, as such, relate to the execution of the orders, judgments, and process of the Courts; the preservation of the peace; the arrest and detention of persons charged with the commission of a public offence; the service of papers in actions, and the like; they are more or less directly connected with the administration of justice; they have no relation to the collection of revenue. The difficulty, however, with the demurrer is the fact that the Revenue Act of 1854, by virtue of which the sheriff is made ex officio tax-collector, provides that he shall be liable on his bond for the discharge of his duties in the collection of taxes, and does not require the execution of any new bond; nor is any other bond required than the one executed by him as sheriff, except when he acts as collector of taxes for foreign miners’ licenses. The. bond in suit must be deemed to have been executed in view of the provisions of the Revenue Act. For moneys collected for foreign miners’ licences, and not paid over, the defendants are not responsible; but all delinquencies in the collection of other taxes are covered by the bond in suit. The demurrer was properly overruled.
The objection to the judgment arises from the form of the bond upon which the suit is brought. The judgment is against all the
The counsel of the plaintiffs suggest in the complaint, as a defect in the bond, that part which apportions the obligation of payment among the obligors. This suggestion is made under the eleventh section of the Act Concerning Official Bonds, which reads as follows:
“ Whenever any such official bond shall not contain the substantial matter, or condition or conditions required by law, or there shall be any defects in the approval or filing thereof, such bond shall not be void, so as to discharge such officer and his sureties, but they shall be equitably bound to the State or party interested, and the State or such party may, by action instituted as other suits on official bonds, in any Court of competent jurisdiction, suggest the defect of such bond, or such approval or filing, and recover his proper and equitable demand or damages from such officer, and the person or persons who intended to become and were included as sureties in such bond.”
It is evident from the language of this section, that the defects which are cured upon their suggestion in the complaint, are omissions which, but for the statute, would operate to discharge the obligors. When the bond “ shall not contain the substantial matter, etc., the bond shall not be void so as to discharge such officer and his sureties.” The clause which is suggested as a defect, is not such, but a limitation upon the individual liability of each of the sureties. There are in fact several distinct obligations in the same instrument. The principal and each surety obligate themselves, jointly and severally, in the specific sums designated, and although all the parties may be included in the same action, separate judgments are required; none can be entered against the parties for any greater amount than that for the payment of which they have respectively bound themselves. Of the surviving sureties, four are bound in the sum of four thousand dollars, and one in the sum of five thousand dollars, and separate judgments against them should have been entered for these respective amounts. Of course the several judgments would be all satisfied upon the payment of the amount found due from the late sheriff. The form of the judgment entered in the Court below, might be corrected without vacating the report of the referee, and such would be the direction of this Court, but for a discrepancy apparent upon the report between the amount to be credited by the stipulation, and that allowed. As the evi
Judgment reversed, and cause remanded.