17 S.C. 1 | S.C. | 1882
The opinion of the court was delivered by
This was an action on what purported to be the official bond of a constable as follows:
“ Know all men by these presents, that we, Marcus Kirby and A. IT. Kirby, are held and firmly bound unto the State of South Carolina in the penal sum of five hundred dollars, to the payment of which well and truly to be made we bind ourselves and each and every of us, our heirs, executors, and*3 administrators, firmly by these presents, sealed with our seals, and dated this 16th day of December, 1873. Whereas, the ■above bound Marcus Kirby has been appointed to the office of Constable by J. B. Tollison, Trial Justice, now the condition of the above obligation is such that if the above-bound Marcus Kirby shall well and truly perform the duties of the said office, as now or hereafter required by law, during the whole period he may continue in said office, then the above obligation to be void and of none effect, else to remain in full force and virtue.”
(Signed “ M. Kirby. [l. s.]
“ A. IT. Kirby.” [l. s.]
This bond was filed in the office of the clerk of the county, on December 16, 1873. Attached to it was a paper addressed to the clerk as follows: “ Capt. F. M. Trimmier: I hereby appoint Marcus Kirby my constable by his compliance with the law. Dec. 15, 1873. (Signed) J. B. Tollison, Trial Justice.” At the time the bond was filed Marcus Kirby took and subscribed the constitutional oath, Section 30, Article II., and entered upon the duties of the office.
While acting as constable under this appointment, he was employed in that capacity by Trial Justice B. II. Steadman, in a case before him against one T. A. Tinsley, for assault and battery. Tinsley was convicted and fined five dollars and costs. Marcus rendered his bill of costs, which were taxed, and Steadman gave him a special appointment in writing to collect the money, fine and costs, which he did. Tinsley sued Marcus for extortion and oppression in office for charging and collecting improper fees. In that case it appeared that he had taxed and collected $10.96 in excess of his lawful fees, and Tinsley had a judgment for ten times the amount under the act upon the subject, which judgment was affirmed by this court. 8 S. C. 114.
Tlie execution against Marcus was returned milla lona, and now the plaintiff Tinsley sues the surety A. II. Kwly on the bond for the amount recovered against Marcus. The presiding judge charged the jury that the bond sued on was suffi
The recovery against Marcus Kirby was not on the bond, but under the statute which declares that “ if a constable shall charge any other fees or for any other service than herein allowed, such constable shall be liable to forfeit to the party injured ten times the amount of excess of fees so improperly charged, to be recovered by suit in the Court of Common Pleas.” Gen. Stat. 208. The execution on the judgment recovered being returned nulla bona the plaintiff now sues the surety, A. H. Kirby, on the bond to make him liable for the penalty recovered against Marcus, upon the ground that such illegal charging on the part of Marcus was a breach of his official bond, and the penalty imposed by law on him must be the measure of damages against the surety.
A rule never to be lost sight of in determining the liability of a surety is that he is a favorite of the law, and has the right to stand on the strict terms of his obligation, when such terms are ascertained. This is a rule universally recognized by the court, and is applicable to every variety of circumstances.
If this bond were free from objection as to its validity, there would be at least a question whether the surety should be made liable upon it for penalties imposed upon his principal for malfeasance in office. The words of the bond are, “ That if the above-bound Marcus Kirby shall well and truly perform the duties of said office as now or hereafter required' by law, during the Avhole period he may continue in said office, that the above obligation to be void and of none effect; else to remain, im, full force and virtue.” To remain in full force and virtue for what purpose ? Might not the answer be to pay all
Does not this consideration touch at least the quantum of damages? Before the act of 1846 (11. Slat. 358) the sureties of a sheriff were held not to be liable for the penalties imposed by acts of the legislature for not returning execution and not paying over money within ten days after demand. Treasurers v. Hilliard, 8 Rich. 412. In that case Judge O’Neall pertinently says: “The undertaking of the securities is, that the sheriff shall discharge the duties of his office; his failure to pay over money collected by him or to return the execution in his office according to law are violations of his duty, and consequently breaches of the covenant contained in the condition of the official bond; and the securities became thereby liable to respond in damages to the parties interested. But penalties imposed on the sheriff for a violation of his duties are not damages sustained by the parties affected by his default. They are punishments inflicted by the law on the sheriff himself for a <yw«si-criminal neglect of duty. If the penalties were in the nature of liquidated damages, it is possible the sureties might be liable, but there is nothing in the acts which authorizes us so to regard them.”
But it is unnecessary to make any ruling on this point. There can be no doubt that as a statutory obligation this bond was utterly void. It was not executed as the law directs, the requisite oaths were not taken, and the required number of sureties were not given. The clerk did not approve the bond in writing or issue a certificate of appointment.
But beyond all these irregularities, it is a remarkable fact •that there is not and cannot be a regula/rly commissioned constable in the state. What the office was intended to be, its duties and fees, are laid down in detail; but the law fails to afford the means by which the office can be obtained. “ Constables shall be chosen in each county by the qualified voters thereof in such manner as the general assembly shall direct, for the term of two years.” Const., Art. IY., § 21. The legislature has not directed the manner in which a constable may be cho
It is said, however, that the bond recites that Marcus Kirby was constable, and the parties who signed the bond are estopped' from denying it. We suppose where recitals are referred to,, all the recitals must be taken into consideration. While this bond does recite that Marcus ‘Kirby had been appointed to-the office of constable, it also recites that the appointment was-made “ by J. B. Tollison, Trial Justice,” which was impossible and illegal, making the alleged appointment simply a nullity. The general rule is that sureties are estopped to deny the facts-recited in the obligations signed by them, and this whether the recitals are true or false; having once solemnly alleged the existence of the facts, they cannot afterwards be heard to deny them. But as we understand it, this rule applies to facts in connection with bonds possible and legal in themselves. If such bond could not be legal, we cannot see how a false assertion could dispense with the law and make it valid. A surety is not in all cases estopped to deny the facts recited in the obligation signed by him. Thus, a court had appointed a guardian for a minor, and while such appointment was unrevoked, appointed another, who gave bond with a surety, reciting that he had been appointed guan'dievn. In a suit on this bond against the surety, it was held that the appointment of the last
Again, a defendant was taken under a bail writ, and the sheriff by mistake took a bond for the prison bounds, which recited the defendants imprisonment to have been under a ea. sa. Held, the bond was void, and that the surety was not estopped to show that there was no ca. sa. Miller v. Bagwell, 3 McC. 429. The ground of the decision is stated as follows : “ It is a general rule of law, and a correct one too, that a man cannot aver against his own deed ; but that is where he has alleged some particular fact within his own knowledge, and which forms a part of the consideration for his undertaking, and that is the whole extent to which the cases relied on go. But the principle cannot be extended to an allegation coming from the other party, and which can be necessarily known only to him, although contained in the recital of a deed made by the defendant. The person supposed to be estopped is the very person imposed on.”
The case before us is even stronger than that; for here, probably, both the clerk who furnished the bond and the parties who signed it were mistaken upon a question of law. No falsehood in fact was recited, but an erroneous conclusion of law that J. B. Tollison could appoint Marcus Kirby a regular constable.
But it is urged that at common law a voluntary bond of a public officer is valid and binding upon him and his sureties. It is true that a bond, whether required or not, is good at common law, if entered into voluntarily, for a valid consideration, and if it is not repugnant to the letter and policy of the law; and the surety on such bond is bound thereby. This
"We have been referred to no case in which the surety was held liable on a bond, purporting to be official, where there could be no such office as that claimed. In reference to the office of constable, the statute declares: “ Nor shall any person not so qualified (by election, etc.) exercise the powers of constable.” This is a positive prohibition, which could not be set aside by the agreement of the parties to disregard it. The alleged appointment of Trial Justice Tollison was against both the letter and policy of the law: “Thus a statute provided that express companies should not do business in the state, without recording, in every county in which they did business, a statement showing the. stockholders’ names, residences, etc. An express company, without complying with the law, appointed an agent, who gave bond for thefaAthful performance of his duties. The agent collected money for packages sent, and failed to pay it over, and it was held that the surety was not bound. The bonds being given for the performance of an illegal act, viz., sending packages by express, was void.” Brandt on Suretyship, § 11; Daniels v. Barney, 22 Ind. 217.
In the case of Cross v. Gabeau and Hunt, 1 Bail. 211, there was a legally appointed collector of fines in the regiment, the difficulty being that no bond was required by law.
In the case of Stevens ads. Treasurer, 2 McC. 107, the legal office of sheriff existed, and the only difficulty was in respect to irregularities in the execution of the bond required by statute. And so in reference. to the State v. Toomer, 7 Rich. 232, Mr. Laurens had been elected to the office of master in equity. And so in all the other cases cited.
It is true that under some circumstances the sureties of an officer de facto will be held liable just as if he were an officer de jure. But the surety will not be held liable in such case,
The judgment of this court is that the judgment of the Circuit Court be reversed.
Except where otherwise stated, the opinion and judgment of the court are unanimous.