Dignan v. Shields

51 Tex. 322

• Court: Texas Supreme Court
• Decided: July 1, 1879
• Status: Published

Opinions

Gould, Associate Justice.

The position of cashier in the office of collector of customs is not unknown to the law, as appears by the customs regulations adduced in evidence. (Gust. Reg., arts. 1004,1165.) For aught that appears to the contrary, it was competent for the collector at Galveston to delegate to his deputy the duty of receiving and keeping customs moneys, as cashier in his office, without violating the regulation prohibiting customs officers from performing their duties by substitutes. (Gust. Reg., art. 1152. See also Gust. Reg., art. 566, where the right of the collector to designate a deputy for certain other duties is recognized.)

Without such special designation, the deputy collector may, in case of absence, disability, or death of his principal, perform the duty of receiving and keeping customs moneys, as well as any other duty of the collector. (Rev. Stats., sec. 2630; Cust. Reg., arts. 1033, 1060.)

For these acts of his deputy the collector is responsible, and, even when performed after his death, his estate continues responsible. (Rev. Stats., sec. 2625; Gust. Reg., art. 1061.) The law prescribes no bond for the deputy collector, but it does not forbid the collector from protecting himself by such bond. In requiring from his deputy, whether before or after his appointment, indemnity against loss through the defalcation of the latter, the collector but exercised a legitimate precaution. See the Revised Statutes, sec. 3148, for a statutory recognition, in the corresponding case of a deputy collector of internal revenue, of the right of the collector to revoke such appointment, and to require and accept bonds or other security from his deputies. The bond in the present instance appears to have been voluntarily given, and, as a valid common-law bond, was rightly enforced. (City of Marshall v. Bailey, 27 Tex., 686; Griffiths v. Hardenbergh, 41 N. Y., 469; United States v. Tingey, 5 Pet., 115; Hawes v. Marchant, 1 Curtis, 136.)

It is immaterial whether the declarations of Stone were correctly admitted or not. The fact of Stone's defalcation was sufficiently established by other testimony, and the case was tried by the court without a jury. (Smith v. Hughes, 23 Tex., 248; Melton v. Cobb, 21 Tex., 539.)

The j udgment is affirmed.

Addibmed.

Opinion March 25, 1879.

Motion for rehearing was taken to the Austin Term.

On Motion dob Reheabing.