Logan v. State

39 Md. 177, 1874 Md. LEXIS 3

Opinion

Miller, J.,

delivered the opinion of the Court.

Suit was brought in this case on the 3d of December, 1859, on the official bond of William Logan, late sheriff of Washington County, executed on the 5th of Decern her, 1854, to recover fees placed in the hands of Logan, as sheriff, by Isaac Nesbitt, Clerk of the Circuit Court for that county. The original writ endorsed “State of Maryland, at the instance and for the use of Isaac Nesbitt,’’ vs. the principal and sureties on the bond, was returned “ non sunt.” Sixteen other successive writs were issued from term to term, all of which, except the last, were returned “tarde;” under the seventeenth and last writ issued on the 18th of July, 1865, and endorsed in the same manner, the present appellants were summoned, appeared by counsel, and with other pleas, pleaded limitations. Mr. Nesbitt died on the 1st of J une, 1865, and letters of administration on his estate were granted on the 13th of that month. The fact of Nesbitt’s death prior to the issuing of the last writ it is contended rendered that writ nugatory, unauthorized and illegal, and there was hence a discontinuance of the action, w'hich let in the plea of limitations. This question is presented by the first exception, and the rejection of the defendants’ first prayer.

In support of this position, counsel for the appellants rely solely upon the 10th section of the Act of 1794, ch. 54, which provides, “that in any suit which shall or may hereafter be .ordered or directed on any administration, testamentary, inspector’s, collector’s, or sheriff’s bond, the clerk shall, and he is hereby directed before the issuing of the writ to endorse thereon the name or names of the party or parties at whose instance, and for whose use the said suit was instituted; and in case the said action shall or may be struck off', discontinued, or non prossed, or in case there be a judgment on verdict in favor of the defendant, the party or parties at whose instance the action was instituted, shall bo answerable for the legal costs of suit, and may be proceeded against by attachment,’’ &c. The argument is that this endorsement thus required to be made by the clerk, is a con dition precedent to the right to issue the writ, and without such endorsement, the writ itself is illegal and inoperative; that no such writ could be issued at the instance and for the use of a deceased party, because be could not have ordered or directed it to issue; that his administrators had no right to order or direct the clerk to renew the writ in the name of their intestate, and if they did so order, it would have invested the clerk with no authority so to do; and if the administrators had ordered the renewed writ to be issued for their use, it would not be a continuation of the original suit, but the inception of a new one, to which the plea of limitations would apply.

In our judgment this reasoning proceeds upon an erroneous view of the purpose and effect of the legislative enactment, cited in its support, and of the nature and character of suits upon official bonds in which the State is obligee. The true character of such actions is well stated in the case of State vs. Dorsey, et al., 3 G. & J., 75. That was a suit upon a collector’s bond in the name of the State for the use of the Levy Court of Baltimore County. After suit brought the Levy Court became extinct and another body politic and corporate, was created in its place. The defendants interposed this as an objection to the further prosecution of the suit, by pleas in abatement, puis darrien continuance. Upon demurrer to these pleas the question arose whether the action could be further prosecuted, and on that point the Court say: “ When suit is brought on a private bond for the use of an individual, the individual for whose use it is entered, is not the legal plaintiff; the use is only entered for the protection of his equitable interest, and if he dies pending the suit, his death is not the subject of a plea, nor is there for the purposes of the suit, any necessity for suggesting his death, but the suit goes on as if he were still living, or the use had never been entered. The judgment is entered in the name of the nominal or legal plaintiff; and it is nothing to the defendant who may be entitled to the equitable interest. And we can perceive no reason why in the case of a public bond, with the privilege secured to any person interested to bring suit upon it, there should be any difference. In either case the suit must be brought in the name of the obligee. In the case of a private bond, the individual obligee is the legal plaintiff for the use of the person having the equitable interest; and in the case of a bond to the State, as here, the State is the legal plaintiff; and there is mo necessity for the purposes of the suit, to enter the use, whether it is brought for the benefit of an individual or corporation ; nor if entered, does it make any difference to the defendant how it may vary or change as to the person asserting the same right. It does not affect his defence, nor can any change of the use become a fit subject of plea. The judgment is in the name of the State for the use of whoever is entitled to the beneficial interest.” It is true the defendants in that case had been summoned and the question was whether the suit had abated, but that does not render the reasoning of the Court inapplicable here. The decision that there is no necessity for the purposes of the suit to enter the use, and, if entered, that it matters not to the defendant how it may vary or change as to the person asserting the same right, and the reasons on which it is based, apply to the case before us. We regard it as a plain determination that the entry of the use or the endorsement of the name of the cestui que use on the writ, is not essential to its validity, and does not affect the commencement or continuance of the action.

The object of the provision requiring the clerk to make this endorsement was simply to have some person designated and made responsible for costs, including the defendant’s costs in case the suit should in any manner terminate in his favor. The omission or neglect of the clerk-to make it, might subject him to an action by the defendant, if the latter be put to loss or inconvenience thereby, but it does not render the writ illegal, or work a discontinuance of the action by being omitted on any of the renewed writs. It was therefore entirely' immaterial whether the last writ in this case had the name of a deceased party endorsed on it as the cestui que use or not, or whether it was issued under directions previously given by Nesbitt in his life-time to keep the suit alive, or by order of his administrators after his death, or by the clerk himself in supposed obedience to the rule of Court to renew as of course, unless otherwise specially directed. The fact that the State was and continued to be the legal plaintiff in the action, and that the writ was in fact renewed in due time, commanding the - defendants to appear and answer “an action at the suit of the State of Maryland,” preserved the continuity of the action and prevented a discontinuance. It it well settled that for the purpose of preventing the running of the Statute of Limitations the impetration of the original writ is deemed the commencement of the suit, and if that proves ineffectual to bring the defendant into Court and is returned by the sheriff, the suit may be kept alive by writs of summons regularly and uninterruptedly renewed from term to term until the defendant is taken, Hazlehurst vs. Morris, et al., (28 Md., 75,) and there is no dispute that this writ was in fact renewed without interruption from term to term, until the defendants were summoned.

Nor can we perceive how' the security intended for the defendants by this provision of the Act of 1794 has not been afforded them. The original writ was properly endorsed, and so were all the renewals up to the last, and it appears by the amended docket entries respecting that writ that Nesbitt’s death was suggested and his administrators asserting the same right, had leave to and did appear, and had the case entered on the docket “at their instance and for their benefit.” Thus all along from the commencement of the suit till final judgment there were parties named on the writs and on the docket entries who would have been responsible in the mode provided by the statute for costs, and to the defendants for all their costs if the action had terminated in their favor. We therefore find no error in the rulings of the Court on this point.

It was admitted that Nesbitt held his office as clerk in 1853 and 1854, and up to the time of his death, and that Logan was elected sheriff in the fall of 1853 for twoyears and qualified and served from that time to the fall of 1855. By granting the defendants’ second prayer the Court instructed the jury that the bond sued on was not responsible for any fees which accrued to Nesbitt, as clerk, unless said fees were written out in words at full length and were placed in the hands of Logan, as sheriff, between the first days of January and March, 1855. By their third and fourth prayers they assert the additional proposition that this bond was not responsible for any fees except such as accrued to Nesbitf, as clerk, after the 1st of March, 1854. This proposition is based upon the first clause of the 11th section of the Act of 1779, chapter 25, “that no officer herein before mentioned, under the penalty of two hundred pounds for every offence, shall send out his fees on execution but once in every year between the first day of January and the first day of March.” We agree with the appellants’ counsel that this clause was not repealed by the Act of 1822, chapter 219, as intimated by Judge Dorsey, in his edition of the laws, 1 Dorsey’s Laws, 154. It remained in force, and is embodied in the Code, (Art. 38, sec. 2,)' with slight modifications in these words: “No officer, under the penalty of five hundred dollars, shall send out his fees on execution more thorn once in every year, between the first day of January and the first day of May.” But we do not agree with the construction they place upon this provision. It does not, as contended, compel these officers, at the peril of losing them, to send out their fees on execution every year, but restrains them from doing so oftener than once in every year. According to our construction of this provision, an officer may refrain from sending out his fees during the year, counting from the 1st of March to the 1st of March, in which they accrued, and can (unless they.have become barred by limitations) place them in the sheriff’s hands for collection in any succeeding year, provided he does so between the 1st of January and the 1st of March, and at no other time during that year. Thus, Mr. Nesbitt might have retained his fees accruing after the 1st of March, 1853, and placed those with the fees accruing after the 1st of March, 1854, in the hands of the sheriff for collection between the 1st of January and the 1st of March, 1855, and for the collection of such fees the sheriff’s bond, executed in December, 1854, would be responsible. There was, therefore, no error in the rejection of the defendants’ third and fourth prayers.

The plaintiffs’ first prayer is to the effect, that if the jury find that after the execution and approval of the bond sued on, Logan admitted and acknowledged to the witness G-arlinger, that Nesbitt had placed in his hands for collection, and that he had received for collection, as sheriff, Nesbitt’s fee-bills for the year 1854, then such admission and acknowledgment is evidence in the absence of proof to the contrary from which the jury may infer that such fees were received by the said Logan, at the proper time and in the manner required by law. In our opinion, this instruction was properly granted. The sheriff and clerk were both public officers, bound by oath to the proper discharge of official duties.

The law made it the duty of the sheriff to collect the fees of the clerk lawfully placed in his hands for that purpose, and his official bond was responsible for the faithful discharge of that duty. The clerk had the right upon complying with certain requirements of the law to place his fees in the sheriff’s hands, and demand of him performance of his official duty in their collection. We then find the sheriff admitting and acknowledging that he had received for collection as sheriff, the clerk’s fee-bills for the year 1854. From that, and in the absence of all proof to the contrary, we think the jury were properly allowed to infer that the clerk had done all that his duty and interest required of him, in order that he might hold the sheriff’s bond responsible, that is, that these fees were written out in words at full length, and given to the sheriff for collection between the 1st of January and the 1st of March, 1855. Our judgment on this question, would not be affected by the fact that it is averred in the declaration under a videlicet, that the fees were placed in the sheriff’s hands on the 1st of June, 1855. Even if we were permitted, (as we are not,) to look to anything in the pleadings in determining the correctness of an instruction which makes no reference to them.

The defendants’ sixth prayer asserts, that the facts detailed by the witness Gfarlinger, are not sufficient to found a verdict for the plaintiff thereon, because they show no specified amount of fees placed in the hands of Logan, as sheriff, and furnished no sufficient data, by or upon which the amount can he ascertained by them. This, even if free from other objections, goes too far. It denies that this testimony was sufficient to warrant the jury in finding a verdict for any amount in favor of the plaintiff. It overlooks the fact that Garlinger proved the actual receipt by Logan of the specified sum of $80 and some cents, on a lee-bill for 1854, due Nesbitt as clerk. This with the inferences allowed under the plaintiff’s first prayer, furnished the jury with data, sufficiently definite to sustain a verdict for at least that sum, with interest from the time of its receipt. If the prayer had asserted the proposition, that this testimony was too vague and indefinite to allow the jury to find a verdict beyond this specified sum, a different question would have been presented, but as it stands, the prayer is faulty in the particular indicated and was therefore properly rejected.

(Decided 15th January, 1874.)

The defendants’ fifth prayer was granted, and they have abandoned their second exception. . No other questions are presented by this appeal, and it follows the judgment must be affirmed.

Judgment affirmed.