Stephens v. Crawford

1 Ga. 574

• Court: Supreme Court of Georgia
• Decided: November 15, 1846
• Docket: No. 83
• Status: Published

Opinion

By the Court

Nisbet, Judge.

This is an action on a sheriff’s bond, to charge the sureties for a default of their principal, and the first question made is, whether the admissions of the principal can be given in evidence to charge them ?

We think they are prima facie evidence of their liability, and cast the onus upon them.

This court has determined that a decree against a guardian upon a bill suggesting a devastavit to which they were not parties, is no more than prima facie evidence against the sureties — they can inquire into the grounds of the decree ah origine. With stronger reason the admission of a principal is only prima facie evidence. The sureties may show in rebuttal, that the admission was made by the sheriff by mistake — or collusion with third persons for the purpose, of charging them — or any other fact which demonstrates that the money received by him was not guarantied to be paid over by them. Any other rule would be unjust to them.

It is, however, both reasonable and according to the settled practice of the courts, that his admission should go against them as prima facie proof of liability. They would be conclusive upon himself, if bonaf.de made, and will bind the sureties, because they are his privies in law. It is not to be presumed that one will charge himself falsely — the legal presumption is that they are true until the contrary appears. With these qualifications, we think, the testimony was properly admitted. — 2 Bailey, 380, 381; 5 Binney, 184; 1 Starkie, 189, 223, 243; 3 McCord, 412.

The next exception which we notice is to the decision of the court below, admitting in evidence what purported tobe a certified copy of the record of the action of the Inferior Court of Baldwin county, at the time they took the sheriff’s bond sued upon tendered in evidence by the plaintiff in rebuttal. And here it becomes necessary to advert to the facts.

Stephens, the sheriff, was elected on January 6th, 1840 — was commissioned on the 8th, and gave bond on the 11th, of the .same month. Afterward s, to wit on the 3d of March, and after the expiration of 30 days from his election, he voluntarily appeared before three of the justices of the Inferior Court, and suggesting that the bond already given was supposed by some to be invalid, offered for their acceptance asecond bond — the bond sued upon — which they accepted and delivered over to the clerk of the Superior Court. This was not done at either a regular or an adjourned term of that court. The record offered recites the action of the court, at that time, in taking this second bond.

The reasons urged against the admission of it are, that the time, to wit, 30 days, within which the law directs the sheriff to qualify having transpired, the justices, had no right to take the bond ; their action was a nullity, and therefore the paper tendered is'no record, and not competent evidence to charge the defendants. We express now no opinion, as to the power of the court to take the bond, reserving that question for the present. We think upon other grounds the testimony was improperly admitted.

We doubt the power of the Inferior Court, in vacation, to make a record unless it is of a judicial act, which the law directs to be done in vacation, or which the court itself at a regular or adjourned term, by order appearing upon its minutes, may direct to be done in vacation.

Upon this subject the opinion of this court has been fully expressed, elsewhere. The act of the Inferior Court now being considered, was not a judicial act.

By the judiciary act of 1799, the sheriff is required to give bond before any one of the judges of the Superior Court, to bo approved by the justices of the Inferior Court, or any three of them. — Prince, 430.

By the act of 1803, every judge of the Superior Court, or a majority of the justices of the Inferior Court, are declared competent to take the bonds of sheriffs and to qualify them. — Prince, 176, 177. By this act they are appointed the agents of the State for this purpose. The duty devolved upon them is ministerial — it is required of them not as a court, but. as individuals, designated by their official name, and presumed, because of the office they hold, to be discreet men. We refer now to the taking of the bond, and not to the administering of the official oath.

We do not perceive, therefore, that the act appertains to the business of the court, or belongs to its records. As ministerial agents, we are satisfied they have not the power in vacation to make a record ; and if they had, it will not be a record of the Inferior Court. Besides this testimony was supererogatory. The record was not necessary to show the execution of the bond, or before whom it was executed. At the time this record was tendered, a certified copy of it was, in evidence, attested officially by three of the justices of the Inferior Court — bearing date on 3d March, and coming out from the Clerk’s office of the Superior Court, its legal depository. And for this reason, although we think, that in the admission of this evidence the court erred, we will not on that account send the cause back for a re-hearing.

It is well settled that a new trial will not be awarded because illegal testimony was admitted, if, wholly irrespective of that testimony, there was plainly and obviously evidence sufficient to justify the finding.

A court for the correction of errors, we hold, has, in relation to this matter, as ample, if not greater, discretion than the Circuit Court has upon an application for a new trial.

It will, to use the language of the Supreme Court of New York, look beyond the letter of the error assigned, and inquire how far that error affected the judgment of the court, or the finding of the jury. — 9 Coiccn, 680. We hdve no doubt but that the discretion now claimed belongs to all corrective tribunals. It is expedient, as preventing delay and cost in the administration of justice, that this court should be clothed with such power. It has exercised that discretion already. — See JMP Cleskey Adindrs vs. Washington Leadbetter, tried at Gainesville, in September. We are not left to rest the power upon the practice of other courts ; for our own organic law confers it. It is therein enacted that, “ upon the decision of the said Supreme Court, on matters of law, or principles of equity, which may arise in the bill of exceptions, the court shall cause, to be certified to the court below such decisión, and award such order and direction in the premises, as may be consistent with the law and justice of the case, which decision so rendered and ordered, and direction so awarded, shall be respected and carried into full effect by the court below.'’ — See Act to organize the Supreme Court, sec. 5. By this clause the power is conferred to award such order and direction in the premises, as may be consistent with the law and justice of the case.

We have now arrived at the point where, as we suppose, all the other assignments of error may be summarily comprehended in two positions, taken in the argument by the counsel for the plaintiff in error. These positions are:

1st. That the bond upon which the plaintiff’s action is founded, to wit, the second bond given by Stephens, the sheriff, and dated.on the 3d of March, is not valid as a statutory bond ; and therefore the plaintiff is not entitled to recover.

2d. It is not valid as a voluntary or common-law bond, and therefore the plaintiff cannot recover.

We hold that the remaining points, no matter how originating or how stated, must' necessarily be considered and adjudicated, in our discussion of, and opinion upon, these propositions.

Both of these positions were determined against the plaintiff in error in the court below.

1st. Is this a valid bond, under the statutes of Georgia?

By the act of 1809, (Prince, 177,) it is made the duty of the sheriff elect to apply for his commission within twenty days from his election ; and to take the oath of office and give bond within ten days after being notified of the arrival of his commission, by the act of 1811, Prince, 178. By the act of 1323, (Prince,, 183,) if he docs not qualify and give bond within tho tima proscribed by the two before-recited acts, that is, within thirty days, his office is declared vacant and he ineligible.

In view of these statutes it is argued, that this is not a valid bond, because first, not being given within thirty days, the office was vacant, and the sheriff could not therefore have given it .under tho statute.

Now, it is true that the Legislature has declared that unless bond is ,-given within thirty days, the office shall be considered as vacant.

The object of this requirement is to secure the early services of an officer under bond, and the execution of the bond is a condition precedent to the enjoyment of the office; it perfects, so to speak, the sheriff’s title to it. A default here works a forfeiture, against which the Inferior Court cannot afterwards relieve.

If there was no bond executed in this case, then was the office forfeited, and once a forfeiture always a forfeiture. The Inferior Court, in that ovent, could not have regarded him as sheriff; he could not have tendered, and they could not have received a bond, colore officii. But was there no bond given within time ?

The record discloses that there was a bond executed by the sheriff Stephens, to the governor of the State, on the 11th January, 1840; and therefore within time. Whether that bond be valid or hot, does not devolve apon as to determine. It has not, so far as appears to us judicially, been declared invalid by any couit "having jurisdiction over it. The Inferior Court has not declared it void by declaring the office vacant, and ordering a new election. We only know the fact that a bond was executed within time, and from aught that appears, that if is a good bond, and that, the sheriff is properly in office. We cannot therefore say that the bond sued on is not a valid statutory bond, for ike reason that the office was vacated.

2d. It is argued, that it is not a good statutory bond, because not having been taken within time, it is not taken according to the requirements of the statute.

It is insisted that, after the expiration of the time, if is not competent, for the Inferior Court to demand a bond of tho sheriff; that their power to take it is limited, as to time, by the statute ; and that this bond, bearing data after the expiration of the prescribed time, cannot, in any sense, be considered as taken in conformity with the law. We consider this position impregnable. It is true, as claimed by learned counsel for tho defendant in error, that if a bond, required by statute, departs from its strict provisions, as where the penalty is larger than that named in the act, it is notwithstanding good, so far as it is in conformity with it; unless tho statute expressly declares that all bonds, not taken in conformity with its provisions, shall be void.

This proposition, as a rale of law, has an exception in tho case of a, bond intended to operate as a fraud upon the obligors, by color of the law, or as an evasion of tho statute.' — 2 Bailey, 370 ; 2 N. & McCord, 425; 2 McCord, 107; 6 Binney, 298. But this ease does riot fall within the doctrine last stated. This is not the case of a bond in part conformed to a statute, and valid, as to that part, and void as to the remainder of its obligations. It is a bond required by tho Legislature to be taken within a time limited, and taken beyond that time.

The act requiring it to be taken within thirty days, restricts the agent, viz., the Inferior Court, to that time ; they cannot enlarge their powers. If they can defer a demand for tbe bond until one day after the time', they may a hundred, and thus defeat the intent of the Legislature altogether.

If the court has the power to demand a bond in this case, I see no reason why the right would not equally exist, in a case where there was confessedly a forfeiture of the office. But could they by asking, and the sheriff by giving, a bond, where none had been given in time, revoke the forfeiture of his office ? Clearly not.' Besides, if they in such a case may be considered as, under the law, entitled to call upon him for a bond, he must have the reciprocal right to give one, and thereby retain an office which his previous default had vacated. Besides, having given one bond, the sheriff has complied with tbe condition upon which ho is to hold office, and the court has no right to cast burdens upon him which the law does not impos'e.

These views are intended to illustrate the position that this cannot be regarded as a statutory bond. Wo do not find that this conclusion is much strengthened by the fact which counsel for the plaintiff in error seemed to regard as of some importance, that there was no dedimuspotestatem, to the Inferior Court to take this bond.

If the law does not confer the power, the executive dedimus cannot give it, and if it does, then the dedimus is but a wasteful surplusage. We have seen that the Legislature lias conferred it, but, as we have attempted to show, to be exercised within a limited time.

What further remains is to inquire whether this be a valid bond at common law ? We think it is. We recognize the position occupied by the counsel, that to be good as a voluntary bond, it must have all the incidents of a deed ; it must be signed sealed, attested and delivered. One of these incidents, to wit, delivery, it is said, is wanting. The bond is made payable to Charles J. McDonald, Governor of the State of Georgia, and his successors in office, and the argument is, that it was not delivered to Charles J. McDonald. We cannot see that it was necessary.

In considering the question, whether it be, or not, a good voluntary bond, we must look to the circumstances under which, and the character in which, it was given. A bond made to A and delivered to B is void for want of delivery. That is, however, not this ease. The obligor, Stephens, is the sheriff of Baldwin county; as sheriff he goes to the Inferior Court, and suggesting that his previously executed bond was considered void by some, of his own mere motion tenders to them an additional bond, which they accept. The act was voluntary. It does not appear that the court, virlute officii, as agents of the State, considered the previous bond void, and asked a new one, or used any means, by suggestion, threats, or otherwise, to get it. The evidence is that he, of his own accord tendered it.

Now it does seem to me that it does not lie in the mouth of this obligor to object to the validity of this bond. He is estopped, and so are his securities ; for their assumption of the obligations of the bond was also voluntary, and they are his privies in law. What can they say against the breach of a contract thus intelligently, willingly and honestly made ? Nothing. They must lie down under the burdens they have assumed.

We have said that it was not necessary that this bond should be delivered to diarios J. McDonald. Wo have already seen that the Inferior Court are bylaw authorized to take the sheriff’s bonds; and to them, or one of the Judges of the Superior Court, as the appointee of flie law, it could alone be legally delivered, and to them it was delivered. Charles J . McDonald has no more interest in it that any other citizen. Ilis name is but the representative of the sovereignty of the State. It is the people’s bond, made payable to him, as a nominal custodier of its obligations.

The true position upon this point is this : a hond required hy siatuie and made payable to the Governor, is payable to the office. In this particular the Governor represents the people, and may be regarded as a sole corporator, and each chief executive takes everything that belongs to the office by succession. — 2 Bailey, 378; 1 McCord, 568; 2 Bailey, 13.

And here it may be well to dispose of the exception, that this action cannot be sustained in the name of George W. Crawford, Governor of the State of Georgia and successor of Charles J. McDonald without an assignment. Upon the principles above stated, there is no difficulty here. It is made, by the act of the parties to it, payable to" the successors of Governor McDonald, and the pleadings show that George W. Crawford is his successor. The law which creates an official bond, and makes it payable to a public officer and his successors, makes a transfer and tradition of it to each incumbent. As before stated, they take the bond as appertaining to their office by succession. In this aspect of this canso, that is, looking at it with reference to the rights of the obligees, the bond assumes a statutory character. But more of this anon.

To return to the question of delivery. The only inquiries to test the sufficiency of the delivery are, to whom does the law direct this bond to be delivered, and was it delivered to the persons appointed by law to receive it? The answers are, that the statutes of Georgia declare the inferior Court competent to take it, and require it to bo turned over to the clerk of the Superior Court for custody, and that it was taken before them, and by them delivered to the clerk of the Superior Court. All of which not only amounts to delivery, but, in our judgment, is the only kind of delivery which would fulfill the requirements of the law.

We have said that after the expiration of thirty days, the Inferior Court has no power or right to demand an additional bond from the sheriff. Whilst this is true, wo yet hold that it is competent for them, in their official character, and with a view to secure the faithful execution of the duties of the sheriff, to receive an additional bond from him, when voluntarily tendered; and, when so received, the rights under it inure to the parties interested, as in case of the first bond. The security is cumulative. Their original power to receive a bond is continued, in oases where th el aw being complied with and the sheriff in office he in that character tenders other securities.

In this view of it the bond would seem to be statutory. As to the obligors, it is unquestionably voluntary.

Taking into view the circumstances under which it was made ; the oharaeter of the obligor, and also of those to whom it was delivered; we can give it no other designation than this, to wit, a common-law bond. And being delivered to the Inferior Court, and attested by them, and found where the law directs it to be placed — in the custody of the clerk of the Superior Court- — we are of the opinion that the presiding judge committed no error in admitting a certified copy of it to go in evidence.

Let, therefore, the judgment of the court below be affirmed.