38 N.J.L. 324 | N.J. | 1876
The opinion of the court was delivered by
This is a suit on the bond of Josephus Sooy, given by him as treasurer of the state. The questions to be settled arise on a demurrer to several special pleas, the sufficiency of which will be considered in the order in which they appear upon the record. It should be premised that they are all put in by the sureties, and that Mr. Sooy does not join in these defences.
The second plea, and which is the first of those demurred to, states, in substance, that Josephus Sooy, Jr., was duly appointed treasurer on the 13th of February, 1873, and that he thereupon took an oath of office and gave a bond, according to law; that no other person was, after that time, and prior to the date of the bond in suit, appointed to said office; nor was he, the said Sooy, appointed anew to it, but that he, the said Sooy, by force of the constitution of the slate, continued in said office from the said 13th of February, 1873, hitherto ; that the legislature, or either branch of it, did not suspect the obligors in said treasurer’s bond to be insufficient, or require, on that account, the said Sooy to give another bond; that said Sooy was not required by law to give any other bond than the one first given by him, but that, notwithstanding, that, on or about the date of the bond in suit, “ the same was, by order of the two houses of the legislature, caused to be prepared and transmitted to said Josephus Sooy, Junior, and it was required and demanded of him that the said bond or writing obligatory, and the conditions therein written, should be executed by him, the said Josephus Sooy, Jr., with sufficient sureties, before he should be permitted to
It will be observed, from this sketch of the plea, that the situation leading to the legal issue now before the court is this : Mr. Sooy, on originally going into office, executed a bond which, as the then existing law required, was in a penalty of $50,000 ; that he was not re-appointed, but held over, and in the year 1874 he gave the bond in suit, which is for the payment of $300,000.
The defence rest in this plea, on the ground that, in such a juncture, there was, first, no law requiring the treasurer to-give a second bond ; and, second, that the bond in suit, being extorted from him by the legislature, is void.
A denial of the fact is the answer, made by the Attorney-General, to the first of these contentions and in support of such denial, and in proof of the existence of a law authorizing-the taking of the bond in suit, we are referred to the supplement to the act respecting the office of treasurer, passed on the 27th of March, 1874. But it seems to me that the statute thus vouched is inapplicable to the posture of things when this bond in question was taken. Mr. Sooy had then long-been in office, and was holding over, by force of the constitution of the state, until his successor should be appointed andi qualified. The language of this supplement to which our attention was drawn, is: “That the treasurer of this state shall,, prior to the entering on the duties of his office, take and subscribe an oath of office, and give bond with sufficient sureties, to be approved of by the legislature, in the sum of $300,000,” &c. Than these terms it would be difficult to select any less-fitted to describe duties to be imposed on an incumbent in office at the time of the passage of this 'act. The express requisition is, that the treasurer shall give bond “ prior to the
Reaching then this point, that the law referred to is inapplicable, and that, consequently, there was no statute in force that required Mr. Sooy to give this bond; the next inquiry, in testing this plea is, whether this instrument is sustainable as the voluntary act of the obligor and his sureties.
There is abundant authority for the proposition that a bond, not exactible by law, but given without compulsion, by an officer, conditioned for a faithful discharge of his duty, is valid. In the case of The People v. Collins, 7 Johns. 554, it is said : “ The general rule is that a bond, whether required or not by statute, is good at common law, if entered into voluntarily, and for a valuable consideration, and if not repugnant to the letter or policy of the law.” The question has arisen and has been considered, and adjudged to a like effect in a number of cases in the United States courts. The leading example is that of The United States v. Tingey, 5 Peters 115, an authority which is likewise to be considered with respect to another aspect of this discussion. The inquiry was there directly presented whether a bond, which had been given by a disbursing officer and his sureties, to secure the faithful performance of his duties, constituted a valid contract, the fact being that the taking of such bond was not prescribed by any act of congress, and such inquiry was answered in the affirmative, the court saying, in the language of Judge Story’s opinion, “ we hold that a voluntary bond, taken by authority of the proper officers of the treasury department, to whom the disbursement of public moneys is entrusted, to secure the fidelity in official duties of a receiver or an agent for disbursery of public moneys, is a binding contract between him and his sureties and the United States, although such bond may not be prescribed or required by
The facts stated in the plea to show that the bond in suit was extorted, are substantially, that the two houses of the legislature “ required and demanded ” that it should be executed before the treasurer “ should be permitted to remain in the said office of treasurer, or to receive the pay and emoluments attached thereto.” Was this such an act of extortion that it will, in law, invalidate this obligation ?
It seems to me that if we look only to legal principles as they are to be found in the common law, it will be manifest that no act of extortion that falls short of duress, will avoid a sealed instrument. What duress is has been plainly expressed in the decisions of the courts, and by the elementary writers. Sir William Blackstone divides it into two parts; first, duress of imprisonment, where a man actually loses his liberty; and second, per minas, of which four instances are enumerated by Lord Coke; 1st, fear of loss of life; 2d, of member; 3d, of mayhem; 4th, of imprisonment. To constitute the defence the imprisonment, threatened or inflicted, must be unlawful. Aleyn 92; Bull., N. P., 172. It will not do if the threats are directed to the burning of houses or the destruction of goods. Co. Litt. 253, b. Baron Parke in Atlee v. Backhouse, 3 M. & W. 650, says: “ The law is clear, although there is some case in Viner’s Abridgment to the contrary; that in order to avoid a contract by reason of duress, it must
But while I think it clear that such was the ancient rule of the law, and, although, this rule appears to be still adhered to by the English courts, it must be admitted that its stringency has, in some measure, been relaxed in this country. There are a number of decisions in the federal courts which seem to countenance the idea that a constraint not tantamount to duress will defeat a bond. These decisions embrace two classes of cases, which, in principle, are entirely distinct. The first of these consists of bonds professedly taken in pursuance of the requisitions of a statute, but which vary .in substantial particulars, from the form or matter prescribed. In the early case of Dixon v. The United States, 1 Brockenborough 177, Chief Justice Marshall appeared to incline to the opinion, that where a statute empowered the taking of a bond, the gen
But with this line of cases we, at present, are not concerned; they are not in anywise applicable. The bond in suit was not a statutory bond; it was taken without any color of authority from any existing law; the first step in this inquiry reached this point, which was considered to be clear, that the statute of 1874 did not look to the case of a treasurer continuing in office after the expiration of his year by reason of the non-appointment, of his successor, and that such juncture was a casus omissus. It must, therefore, I think, be conceded that this principle running through the decisions just cited to the effect that in the taking of statutory bonds, if the act is not followed, the instrument taken will bo, under some circumstances, invalid, can have no effect on the subject now under consideration.
But it is the other class of decisions in the federal courts, above referred to, which approach nearer to the matter in hand. These lay down the doctrine that even a voluntary bond may be void from being extorted by a compulsion falling short of duress. On this branch the leading case is that of The United States v. Tingey, reported in 5 Peters 115. This was an action on a purser’s bond, and in its condition imposed
It is very manifest that if this decision was grounded alone in the fact that the bond was obtained by compulsion, it would be a wide departure from that doctrine of the common law already stated, which required such compulsion, in order to be legally effective, to amount to duress. The plea which was deemed sufficient exhibited no such force as could be said to destroy, upon legal principles, the free agency of the party giving the bond. But I think the result which was obtained was reached by the court in great part from the persuasion ■that where a statute directed a bond of a certain character to be given, the officer having the power to require it should not, on grounds of just policy, be permitted to demand a different and more onerous one. Even in this view it would seem that the case is open to much doubt, and can be vindicated, in my opinion, on the hypothesis only, that the act of the navy department in that instance, was to be considered
Rut the principal feature in which the two cases differ, is in the absence from the present one of that element of illegality in the demand of the bond, which appears in the case decided in the federal court, and which element is always essential when either extortion or duress is set up. In The United States v. Tingey, the secretary of the navy, according to the pleadings, had claimed what he had no right to claim, and what he had no power to enforce, except by the exercise of arbitrary power. He demanded the bond in defiance of the statutory provision, under threat that he would keep the purser from the exercise of his office, and would withhold from him its emoluments. This was sheer usurpation of authority, and a tyrannous abuse of his official position. In this case, nothing of the kind can be reasonably alleged. It does not present the feature of a superior officer tyrannizing over an inferior. The state treasurer is a constitutional officer, and in his office is not subject to legislative rule. His office cannot be taken away from him until his term is ended, nor can. he be deprived of its emoluments. The only point that
The next plea demurred to is the third on the record. The substance of it is, that the bond in suit was not executed before the president of the senate, nor was it approved of by the legislature.
The statute respecting the office of treasurer ordains that the treasurer shall “ give bond, with sufficient sureties, to be approved of by the legislature.”
The act with respect to this ceremony of approval is clearly directory, and its non-observance cannot affect the validity of the instrument. It is suggested in the brief of counsel that this legislative approval is an indispensable part of the acceptance of the obligation; if this be so, the result would be that the bond never had any existence, the delivery not being complete, and the defence would be appropriate under the plea of non est. factum. But I do not think there is any substance even in this suggestion; the bond may be obligatory,
To the fourth plea, the objection is merely formal, the alleged fault being that it should have concluded to the country, and not with a verification. This criticism, I think, is just. . The declaration assigns as a breach, according to the language of the condition of the bond, that the treasurer did not account, &c., and did not well and truly perform the duties of his office. The plea meets this negative by an affirmative, alleging the performance of these matters in the words of the bond and the breach as alleged in the declaration. There is no new fact alleged in the plea, and, consequently, no place for a verification. The plea in this respect is clearly defective.
The sixth plea was not noticed on the argument, and it is presumed its insufficiency was intended to be conceded. Its gravamen consists in an alleged non-performance of a duty by the comptroller ; but it does not show any injury resulting from such omission; it barely intimates the possibility that such was the case — it says if a certain state of facts exists, then a defence exists. Such pleading is clearly bad.
The seventh plea, it was admitted on the argument, would not, in its present form, present for decision the question intended to be raised. It is suggested in the brief that, while in the hands of the court, it may be considered as amended so as to give rise to the contemplated issue. But this suggestion I am not willing to put in force. The form and substance in pleading are so closely commingled that it requires care and skill to adapt the one to the other, that it might lead to dissatisfaction, if the court should undertake to make the proposed modification. The plea, as it stands, is good in substance, as it alleges that part of the moneys in question were the individual moneys of Mr. Sooy, and did not come to him as treasurer. Such an allegation, however, has no office in the case, and can have no effect; and as it is associated with a statement of other facts, the plea should be
The eighth plea sets up, that part of the moneys in controversy consisted of dividends on certain stocks owned by the state in certain corporations; and that by the law of the state the comptroller is required to draw in favor of the treasurer upon such corporations for such moneys; and that if such moneys were paid to Mr. Sooy, they were paid without such drawing by the comptroller, and were paid to him by said corporations in their own way.
It is obvious that this plea is founded on the idea that, under no possible circumstances, can the dividends of the stocks owned by the state come into the hands of its treasurer as a part of the public moneys, unless such moneys shall be drawn upon the draft of the comptroller. But I think this is obviously a misconception of the law. The statute does not make this form necessary in every case. The language is that the comptroller shall thus draw in favor of the treasurer “ when necessary.” Suppose the company should transmit to the treasurer the amount of the dividends, without waiting for the comptroller’s draft, and the treasurer should give a receipt therefor, countersigned by the comptroller, can there be any doubt that even in form such a course would be strictly statutable. In such a case a draft would not be necessary, and the direction of the act is, that a draft shall be drawn, “ when necessary.” The naked allegation of this plea, therefore, that the money was not received on the draft of the comptroller does not show a legal defence. This plea cannot be sustained.
In the tenth, and last plea, fraud is the defence disclosed.
The averments, in effect, are — that for a year prior to the giving of the bond in controversy, Mr. Sooy had been treasurer, “ and that during all that time he, the said Sooy, had been wanting in regularity in the performance of his duties as such treasurer, and in the keeping of his accounts as such, and had at various times embezzled and wasted divers sums of money of them, the said plaintiff, and applied the same to
In the argument touching the matters thus set forth, the principal position taken by the counsel of the defendants was, •that in this plea concealment of material facts known to the ■state was shown, and which facts, if divulged, would have prevented this contract of suretyship, and that such concealment rendered the contract void. The cases ^illustrative of the duty of the obligee to make disclosure of facts within his
The demurrer- being general to all these pleas, must be overruled.