38 W. Va. 736 | W. Va. | 1894
On tlie 27th day of-May,1889,-I. II. Prondibot was appointed a constable for the county of Jackson to succeed one B. F. West, who had on that day resigned. On the 7th day of June, 1889, Said Proudfoot, with I. M. Adams, W. Lytle, and W. Lytle, Jr., as his sureties, executed a bond conditioned for the faithful performance on the part of said Proudfoot of all of his duties as such constable according to law, and that he should account for and pay over all money that might come into his hands by virtue of said office to the party or parties entitled to receive the same, which bond was acknowledged before and approved by T. II. B. Lcmley, then clerk of the county court of said
At an election hold on the 4th day of November, 1890, the said J. II. Proudfoot was elected constable of said county, and was so declared by the County Court on the 10th day of November, 1890. He, however, did not execute bond as such constable after he was so declared elected, nor take the oath of office required, but continued to act as constable until the 11th day of July, 1892, when, on motion of the prosecuting attorney of said county, a rule was awarded against him to show cause why he should not give bond, and why said office of constable should not be declared vacant; and on the 13th day of July, 1892, the said Proudfoot resigned said office, as above stated.
On the 13th day of October, 1891, while said Proudfoot was acting as such constable, he received on an execution placed in his hands for collection in favor of Treasure Stove Works against A. W. Kidd & Sons the sum of one hundred and twenty four dollars and thirty three cents with interest thereon from the 22d day of August, 1891, and three dollars and ten cents costs, and no part of said sum has over been accounted for or paid over by said Proudfoot, or any person for him.
This state of facts existing, an action of debt was brought to the September rules, 1892, in the name of the state of West Virginia, which sued at the relation and costs of R. P. Thompson and W. II. Francis, partners doing business
Did the Circuit Court err in finding for defendants I. M. Adams and W. Lytle, and dismissing the action as to them? It is a conceded fact that said J. II, Proudfoot, together with I. M. Adams, W. Lytle, and W. Lytle, Jr., entered into and executed the bond declared on by the plaintiffs. It was also ordered by the said County Court that said Proud-foot should not transact any business as such constable until he should file his bond as such constable in the penalty of five thousand dollars, conditioned according to law, and directed that said bond should be approved by the clerk of said court; but said court did not at any time take the acknowledgement of or approve said bond, while our statute (Code, p. 111, c. 16, s. 14) provides that every constable shall give bond with good security, to be approved by the County Court.
Now, it must be conceded that the County Court had no power to delegate its right and duty to approve such bond to the clerk of said court when the statute expressly provides that the bond shall he approved by the County Court, but the question for our consideration is: Did the failure on the part of the County Court to perform its duty by approving said bond relieve the sureties in said said bond in voluntary executing the same, acknowledging it before the
The court in this case, with a view of affording such protection, entered in its order directing’ that said Proudfoot should not transact any business as such constable until he. should lile his bond as such constable in the penalty of live thousand dollars, conditioned according to law, which bond should be approved by the clerk of said court; and at the date of said bond the said Proudfoot took the proper oath of office, and entered upon the discharge of his duties of said office. The said bond was acknowledged before said clerk and approved by said clerk, it is presumed, by satisfying himself as to the sufficiency of said sureties; and while it can not be said that this action on the part of the clerk in vacation was an approval of said bond by the County Court, yet it was acknowledged before him, and delivoz’ed to him for record, and the action of said sureties in thus executing and delivering said bond enabled said constable to qualify and assume the duties of the office.
Murfrce, in his valuable work on Official Ponds, under the head of “Approval of Ponds,” (section 175) says: “Attempts are frequently made by officers and their sureties to evade the responsibility of their official bonds on the ground that the bond was not approved by the proper officer or in the appropriate manner or not approved at all. They have usually failed for the obvious reason that, if the officer had been inducted into office, and thus enjoyed the advantage afforded by the execution of the bond, it does not lie with him or his friends to controvert the validity of their obligation because of the omission of a ceremonial which is not intended for their protection, but the precise reverse — to protect the public against them. The courts in such cases very readily accept slight proof of approval of bonds under which the obligors have gone into office. Hence, in Missouri, a bond was lieklto be approved because it was handed to the clerk of the County Court in vacation,
The case referred to by the author is found in 7 Mo. 46, styled Jones v. State, The second point of syllabus reads as follows : “The failure of the County Court to approve or reject a constable’s bond taken by the clerk in vacation will not invalidate the bond. The duty enjoined upon the County Court in this respect was intended for the security of the public, and their omission to perform such duty can not injure the constable and his securities.”
The Missouri statute under which this decision was rendered provides that the bond shall be approved by the court or clerk in vacation, and, if taken by the clerk in vacation, shall he approved or rejected by the court at the next term. So, also, in the case of Moore v. State, 9 Mo. 198, it was held that, “a bond given by a collector is valid against him and his securities, though not approved by the County Court.” Upon this point see, also, State v. Fredericks, 8 Ia. 553.
In the case of Lyttle v. Cozad, 21 W. Va. 199, which was a contest in reference to the validity of a commissioner’s bond executed by a commissioner under the statute before proceeding to make sale of land, one of the securities claiming and showing that he had signed the bond and delivered it to said commissioner with the agreement and understanding that others were to sign it as securities before it was delivered, Giieen, J., in delivering the opinion of the court, says: “When one of two inuoceut persons must suffer by the act of a third, lie who has enabled such person to occasion the lo.-s must sustain it.”
The question as to the effect of a failure to properly approve an official bond was before the supreme court of Arkansas in the case of Auditor v. Woodruff, 2 Ark. 73, and it was there held that, although the statute requires the official bond of the state treasurer to be approved by the governor, and that approval to be indorsed thereon, before the commission issues or the person qualifies or proceeds to discharge the duties of his office, yet the failure of the governor to indorse such approval or to approve the bond
Counsel for the defendants in error, in their brief, roly upon the case of People v. Van Ness, 79 Cal. 85 (21 Pac. 554) where it is held that “an official bond, like every other deed, is not operative until a delivery, nor are the sureties liable thereon for any breach until after delivery. There can bono delivery of an official bond until its approval by the proper authority.” This is quoted from the syllabus of the case, and, turning to the opinion of the court, we find TiiORXTON, J., delivering the- opinion of the court, says: “There was no delivery of the second official bond executed by Van Ness and sureties until the day on which it was approved by the governor. We can not see how there could have been any delivery until that date. The bond was not in a condition to be delivered until that date. Prior to that time it was inchoate, and imperfect as a bond. Like every other deed, that bond was not operative until delivery. It follows that the parties to the second bond were
The object of the law in requiring the approval is to insure greater security to the public, and it does not lie in the obligors to object that their bond was accepted without proper examination into its sufficiency by the officers of the law.” The opinion in this last case was delivered by Field, J., who for many years has been one of the justices of the United States Supreme Court. On this point we quote the American & English Encyclopedia of Law, under the head of “Bonds,” (page 466) where it is said : In some states an official approval is roquín, d as a condition precedent to its validity, and of the title of the principal to his office. Such an approval isa condition inquired for the protection of the public, and its omission can in no instance inure to the benefit of the obligors. Attempts to invalidate bonds for such reasons have usually failed.”
So in the ease of McCracken v. Todd, 1 Kan. 149, it was held that “the sureties on a sheriff’s bond can not take advantage of an omission to have the bond approved, and its amount prescribed by the probate court, where the amount is within the statutory limit. The deposit of such bond for record held to be a delivery.”
“It very often happens that a bond executed in consequence of a statute, and with the design, by conformity to its terms, of being a valid statutory or official bond, falls short of the statutory requirements, and fails to become a bond of that peculiar character. In such cases the question arises whether the bond so imperfect or defective is absolutely void or valid as a common-law bond, irrespective of the design to impart to it a statutory and official character. The rule upon this subject is well stated in a recent case in Illinois. The court says : ‘We have several
In the case of Supervisors v. Dunn, 27 Gratt. 615, Staples, J., delivering the. opinion of the court says: “A person who signs, seals, and delivers an instrument as his deed will never he heard to question its validity upon the.ground that it was not acknowledged by him, nor proved at the time of the delivery. It. is the sealing and. delivery that gives efficacy to the deed, and not proof of execution.” And this, we think, propounds the law correctly upon this point.
In the case under consideration, however, the County Court fixed the amount of the- bond, and directed that it should be deposited with its clerk. It is, however, insisted by counsel for the defendants in error that the successor to the constable did not qualify in a reasonable time after the expiration of his official term, and that the sureties should be exonerated. In this case said I’roudfoot was elected his own successor, and was so declared on the 10th day of November, 1890. lie failed to qualify or give bond, but continued to perform the duties of his office, and while acting as such constable, on the 13th day of November, 1891, received the execution mentioned in the plaintiff’s declaration, less than a year after his election.
The case of Com. v. Fairfax. 4 Hen. & M. 208, is cited and relied on to show that the sureties in this bond were released, but that decision was under a Virginia statute which required that the sheriffs should be nominated and
In the case of Monteith v. Com., 15 Gratt, 172, the sheriff was re-elected, and gave bond and qualified, and it was held in that case that it could not be held that he continued to hold over under his first election on the ground that his successor had not qualified so as to subject his sureties in his previous bond. Article VI, § 2⅞, of. the Virginia constitution then provided that such officer should continue to discharge the duties of their respective offices until their successors were qualified, and Allkn, J., in delivering the opinion of the court, among other things, said: “.In the case under consideration the sureties are liable for the discharge of the duties of the office for the term for which the bond recites he was elected, and thereafter until a successor qualifies.” Upon this question, see, also, Ex parte Lawhorne, 18 Gratt. 85; also Com. v. Drewry, 15 Gratt. 1, which last-named case is > very similar in its facts — the sheriff held over, and it was held that his sureties were liable for acts performed after his term expired.
Again, section 21 of chapter 10 of our Code provides for the relief of sureties on such bonds on petition when they apprehend pecuniary loss, but tírese sureties, with full notice of the law, allowed their principal to go on and perform tile duties of the office, and thus put it in his power to receive claims from the public, and, when a default occurred, they claim to be released, because he has held over an unreasonable time, which they had it in their power to prevent. Numerous authorities havebcen cited to show that sureties are liable only for the term for which the officer was elected or appointed, but most of them refer to officers of corporations who are required to be elected
My conclusion, therefore, is that the Circuit Court erred in finding for the defendants I. M. Adams and W. Lytle, the sureties in said bond, and giving judgment for them. The judgment complained of is reversed, and the cause remanded to the Circuit Court of Jackson county, in order that a proper judgment may be rendered therein, there being no evidence that J. II. Proudfoot and W. Lytle, Jr., were before the c.ourt; and the defendants in error must pay the costs of this writ.