11 S.C. 381 | S.C. | 1879
The opinion of the court was delivered by
The statement is, that this was an action brought by the plaintiff' against Langston and the other defendants, his sureties on his official bond as judge of probate, for certain moneys collected by the said Langston, judge of probate, for said plaintiff, but not paid over either to the said plaintiff or to his (Langston’s) successor in office. Langston was elected judge of probate in June, 1868, and gave his bond, which is conditioned that he “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 office.” The money was collected on a bond which was in the Court of Probate when Langston took possession as judge of probate in 1868. It was collected in May, 1872, nearly two years after the time when, according to law, the term for which Langston had been elected in 1868 had expired. The defence set up by tlie sureties was, that the judge oí probate is elected for two years only, and that the liability of the
The first question is, whether the judge of probate was continued in office by the act of February 14th, 1870, entitled “ An act to provide for a general election of county officers,” and of which Section 2 says: “ That the present county officers shall continue to perform the duties of their respective offices until their successors shall be elected and duly qualified.” If this act was intended to apply to the judges of probate, Section 2 is, to that extent, unconstitutional and void. The constitution, Article IV-, Section 20, provides that “ a Court of Probate shall be established in each county. * * * The judge of said court shall be elected by the qualified electors of the respective counties for the term of two years.” How said office shall be filled when a vacancy occurs is provided for by Section 11 of the same article: “ All vacancies in the Supreme Court or other inferior tribunal shall be filled by election as herein prescribed; provided, that if the unexpired term do not exceed one year, such vacancy may be filled by executive appointment.” In no event other than that of an unexpired term not exceeding one year, can the office be filled except by an election “ by the qualified
The case of Vaughan v. Evans is questioned by Harper, Ch., (who delivered the opinion in it,) in the subsequent case of Field v. Pelot, but the explanation of Vaughan v. Evans, by Johnson, -Ch., in his separate opinion in Field v. Pelot, is very satisfactory, and is clear on this point, that in Vaughan v. Evans it was held “ that a surety is discharged if no act of mal-administration was committed during his time; provided he can show that at the expiration of that time the trust fund passed into hands lawfully entitled to the possession of it.” Page 400.
The case has always been recognized as authority, and the same doctrine is upheld in Street v. Laurens, 5 Rich. Eq. 227. But the facts, as admitted, show that Langston went out of office in June or July, 1870, and that up to May, 1872, when this money was collected by him, there had been no qualified successor, and that he, Langston, had remained in possession of the bond. It is further admitted that there has, since May, 1872, been a judge of probate in that county, and that Langston has failed to turn over to him either the bond or the money in ques
The defence contained in the last sentence cannot be set up in this case, for Langston had received the bond in his official character. These sureties would have had a good defence if' Langston had been his own legal successor. That defence, however, is prevented by the facts as admitted, and they, the sureties, are obliged to rest solely upon the ground that the wrong was committed after he, Langston, went out of office. By the law as above expressed, that defence cannot avail, nor should it; for the sureties are bound for whatever comes into the hands of the office while he holds his trust, if it is received by him under the trust. They pledge themselves to a given amount that their principal will not commit a breach, or that if he does they will be responsible, and upon such security the interests of many depend, and demand protection. But the point is decided in Lowndes v. Pinohney, 1 Rich. Fq. 155. In that case the commissioner in equity had not turned over to his successor a bond given to him as commissioner in equity, but had retained it and collected the money on it. The court says: “ It [the bond] was not delivered over to his [the commissioner’s] successor within the period prescribed by law, nor for six years afterwards. * * * In the judgment of the court, the sureties of Mr.
That case made a stronger showing for the sureties than this, and there was a difference of opinion among the members of the court; but we follow its decision upon the point in question, and especially are we relieved from any doubt in so doing, for the reason that the principal grounds for the dissenting opinions do not exist at all in this case. Besides, the sureties rest here upon technical defence. It is plain that it was thought that Langston was continued in office by the act of February, 1870, and that the old bond remained as security. For if that had not been thought, a new bond would have been required. If the sureties had any doubt upon that subject, they had their remedies, and could have prevented any waste by Langston. They are held by this decision simply to their original liability, for the safe keeping and proper accounting concerning all that went into Langston’s hands as judge of probate during the two years, 1868-1870, and no more. While the Circuit judge may not have expressed the law as it is viewed by this court, his conclusion of law was correctj and we see no reason why a new trial should be granted. As the facts admitted stand, the sureties are legally liable, and if the charge of the judge had been in accordance with these views, the conclusion would have been the same, and could not have changed the result. The attempt on the part of Langston to appeal is without any foundation; the facts show his liability, whatever had been the decision with regard to his sureties.
The judgment is affirmed. Motion refused.
Appeal dismissed.