18 S.C. 366 | S.C. | 1883
The opinion of the court was delivered by
This was an action on the official bond of H. C. Moses, as clerk of the Court of Common Pleas for Newberry county. It seems that Moses was appointed clerk by the judge of the Seventh Circuit, within which the county of /Newberry is embraced, on February 16th, 1875, and that he then entered into bond for the faithful performance of the duties of the office. He was subsequently required to give a new bond, and accordingly, on April 4th, 1877, he entered into another bond, with all the other defendants, except Montgomery Moses, as his sureties, and the action is brought on the last-mentioned bond.
The breaches assigned are: 1. That he received large sums of money in certain cases stated in the complaint, “which he has neither deposited to the credit of the court in the National Bank of Newberry, nor in any other bank in the Seventh Judicial Circuit, as required by law to do, nor has he turned the same over to Ebenezer P. Chalmers, who was duly elected clerk of the Court of Common Pleas for Newberry county, on July 26th, 1877, and commissioned on August 14th, 1877, nor has he paid the same over to the parties entitled thereto, although often requested so to do.” 2. That the said H. C. Moses “ has neglected and refused, and still doth neglect and refuse, to turn over to the said Ebenezer P. Chalmers, clerk as aforesaid, as required by law, certain of the furniture and papers of the said office, to wit: the iron strong box, or safe, and the money bonds given in cases in said court.” 3. That the said H. C. Moses “did not at each stated session of the Court of Common Pleas for Newberry, present, as required by law, an account to said court of all moneys remaining therein, or subject to the order thereof, stating particularly on account of what cause or causes said moneys are deposited, nor did he file the vouchers thereof in court.” Judgment was demanded for the penalty of the bond, ten thousand dollars, and for costs and disbursements.
The defendants, by their answer, submit that the action was
When the pleadings were read, the written authority for the institution of this suit in the name of the State, signed by the attorney-general, was exhibited to the court, whereupon an order was passed by which it was adjudged: “ That this suit is properly brought in the name of the State, and that Montgomery Moses should be made a party defendant with his wife, Catherine Moses,” and leave was granted to amend the complaint accordingly. This being done, Montgomery Moses filed his answer, admitting that he was the husband of the defendant, Catherine, denying all liability on the bond, and adopting the answer filed by the other defendants.
The cause being thus at issue came on to be heard before his Honor, Judge Kershaw, and a jury, when testimony on the part of the plaintiff, to the following effect, was adduced: 1. That it appeared from the account book kept by H. C. Moses, as clerk, that the several sums of money mentioned in the complaint had been received by him in the cases there mentioned. 2. That E. P. Chalmers was elected clerk on July 26th, 1877, and commissioned as such on August 14th, 1877; that he had qualified, and, on August 18th, 1877, took possession of the office of clerk, and had since that time been acting as such; that on August 18th, 1877, he demanded the office from H. C. Moses,
The testimony adduced upon the part of the defendant was to the effect: 1. That suit had been brought on the first bond of Moses as clerk. 2. That the several sums of money mentioned in the complaint were all received by H. C. Moses prior to the execution of the bond sued on in this case. 3. That E. P. Chalmers, on August 18th, 1877, forcibly ejected H. C. Moses from the office of clerk, and that an action brought by Moses against Chalmers, to regain possession of the office, was then pending. 4. That no order of court, to deposit money in any of said cases, was ever served upon said H. C. Moses, though notices of application for such orders, in several of the cases mentioned in the complaint, had been served, which were resisted by H. C. Moses, and were not considered by the Circuit judge to whom such applications were addressed.
In the progress of the testimony the Circuit judge announced that there could be no recovery on the bond, “ except for the first breach assigned, to wit, the failure of H. C. Moses to account for money received by him "as clerk of the Court of Common Pleas for Newberry county,” though he permitted testimony to be offered as to the other alleged breaches, and as there was no exception to this ruling by either party, the case must be considered as resting alone upon that breach. At the close of the testimony, a motion for a non-suit was made because
In reference to the first question it is only necessary to say that it could only be raised by a demurrer, and there was no demurrer in this case. Pom. Rem., § 207, p. 247. But even had it been properly raised, it would seem from the authorities that the action was properly brought in the name of the State. ■ Ibid., § 176, p. 214.
The second question is fully disposed of by the recent decisions of this court, in the cases of Pelzer, Rodgers & Co. v. Campbell & Co., and Clinkscales v. Hall, 15 S. C. 581, 602.
We come now to the consideration of the third question raised
When, therefore, money is received by the clerk of the Circuit Court, in causes pending therein, it is his official duty to deposit the same in some bank of good standing, to the credit of the court, of which he is the clerk, unless the money is to be immediately paid out, when it need not be deposited, but may be paid out upon the order of the court. If a clerk neglects or refuses to perform this duty, he commits a breach of his official bond, and becomes liable to an action for the penalty. The default consists, not in receiving the money, but in neglecting or refusing to deposit it in bank; or where it is to be immediately paid out, in not paying out according to the order of the court. This is a continuing duty, and the default continues as long as the performance of such duty is neglected.
The fact, therefore’, that the money in this case was all received by Moses, as clerk, before the execution of the second bond, cannot relieve the sureties on the second bond from liability, if the default continued after the execution of that bond. It seems that Moses did continue to make default in this respect after the execution of the bond sued on in this case, and, therefore, the sureties on this bond, as well as those on the .first bond, would be liable for any damages resulting from such default. Treasurers v. Taylor, 2 Bail. 524.
Our next inquiry is as to the form of the verdict, whether it was so uncertain as not to warrant the entry of any judgment. The verdict for the penalty of the bond was, as we have seen, fully warranted by the testimony, and there would be no difficulty in entering judgment on such a verdict. All the rest of the verdict, or rather what. is written below the regular and formal verdict for the penalty, may and should be rejected as surplusage, it being a futile attempt on the part of the jury to find damages in favor of persons not parties to the record, which of course must be regarded as a mere nullity. The proper practice in cases of this kind is to enter judgment for the penalty in favor of the obligee, which will stand as a security for those who may have sustained damages by reason of the breach of the condition of .the bond, leaving it for those parties claiming to have sustained such damages to come in by proper proceedings and establish their claims; and with a view to avoid multiplicity of suits and secure equality amongst the several claimants, an order should be published requiring all such claimants to come in within a prescribed time, and establish such damages as they may have sustained by reason of the breach of the condition of the bond, and obtain execution on the judgment for the damages so established.
The eighth ground of appeal imputes error to the Circuit
The judgment of this court is, that the judgment of the Circuit Court be modified in accordance with the views herein expressed, with leave to the parties interested to come in and establish their claims, according to the practice herein indicated.