The Mayor C of Wilmington v. Horn

2 Del. 190

• Court: Superior Court of Delaware
• Decided: July 5, 1837
• Status: Published

Opinion

By the Court.

Harrington, Justice.

The. question presented by the demurrer and argument of this case is, whether the defendant, as one of the sureties of John Rudolph, in his official bond as high constable of the city of Wilmington, is bound for the defaults of that officer arising after the year in which the bond was executed. The bond bears date the 26th of April, 1832, and is conditioned for the faithful performance by Rudolph of “all the duties required of and incumbent on him as high constable for the city of Wilmington, agreeably to his appointment, and in conformity with the existing laws of the state,” &c.

The city charter authorizes the election of a mayor, alderman, a city council, high constable, treasurer and assessor; the council treasurer and assessor to be elected annually by the citizens on the first Tuesday ofOctober; the mayor, alderman, and high constable, to be elected by the city council, the mayor for three, the alderman for five, and the high constable for one year. The first election of a city council under the charter took place, by the special provision of the 14th section of the act, on the first Tuesday of March, 1832, at which time the term of the high constable then in office terminated; and the act directs that the council shall proceed immediately after the said election, to elect a high constable, &c. In pursuance of this direction, Rudolph was elected ; and, on the 26th April, executed this bond.

Without looking further info the charter, it is plain that the term for which Rudolph was elected was only until the third Tuesday of October following, on which day in each year the fourth section requires that the high constable shall be elected; and it is equally plain that a bond conditioned, as this is, for the performance of ail the duties incumbent on this officer agreeably to his appointment, could not extend the obligation of the surety beyond this period. If this were the extent of the defendant’s obligation when it was entered into, could any act or omission of any other person, or indeed any subsequent matter, enlarge the condition and extend the obligation 1 It is contended by the plaintiff’s counsel, that the failure or omission of the city council to elect at the next annual period, has this effect, because it is said that in such case the charter under and in reference to which the bond was given, continues all the power and authority and also the obligations of the high constable.

The section referred to enacts, “ that in case it should happen that the election day should pass over without an election being held, or in case of the omission of the execution of any authority delegated by this act, the powers of the corporation shall not cease, but the authority of each and every the officers thereof shall continue until a new election can be legally held.” The election day referred to is probably the first Tuesday in October, the day of general election by the citizens of a city council and other officers, and not the time of election by the council of a high constable; and the purpose of the provision is stated to be to prevent the disfranchisement of the corporation, which could certainly not occur bv the mere neglect to appoint a constable. But, supposing that it extends to either elect ion day, and embraces the case of an omission to elect a constable, does such an omission continue not only the existence and authority of the officer, which the law provides it shall do, but also continue his obligations and extend the liabilities not merely of himself but of his surety, which the law does not at least in its terms declare that it shall do 1

A surety is in no case bound beyond the extent of the principal, and the liability of both is measured by the terms of the bond and the condition of things in contemplation of the parties at the time of entering into the obligation. Theobald, Prin. and Surety, 66. The liability cannot be extended beyond the terms of the obligation. Thus, before our act of assembly, it was held by the courts that the condition of an administrator’s bond did not cover the proceeds of sale of the decedent’s lands made by the Orphans’ Court for the payment of debts, though such proceeds came into the administrator’s hands, and though the law at the execution of the bond contemplated ihe possibility of such funds coming into his hands. The reason is, that the parties at the execution of the bond contemplated the administration of the personal assets of the estate, and this liability cannot be extended, although by the lawful action of the Orphans’ Court the land is changed into money and comes into the administrator’s hands.

It is another general principle, that if a person is surety for the fidelity of another in an office of limited duration, or the appointment to which is only for a limited period, he is not obliged beyond that period. Theo. P. and Surety, 66. Thus, in the case of The Liverpool Water Works Company vs. Harpley, (6 East, 507,) the action was against a surety on a bond reciting that one Atkinson had agreed with the plaintiffs to collect their revenues from time to time for twelve months from the date thereof, and with condition to be void if Atkinson should from time to time annually and at all times thereafter, during the continuance of his employment, account for and pay •over, &c. The plaintiffs averred that they continued Atkinson for near three years, and that during that period he had received various sums which he had not paid over. The defendant'pleaded that Atkinson had paid over all he received during the first twelve months after the date of the bond, and upon demurrer to this plea the court gave judgment in favor of the defendant; determining that the surety was only bound for the period mentioned in the recital as the duration of Atkinson’s appointment.

So in the case of The United States vs. Kirkpatrick et al., which was an action on the official bond of a collector appointed by the president in the recess of the senate, under an act of congress authorizing such appointments until the end of the next session; and was conditioned in general terms for the faithful discharge of the collector’s duties; it was held not to extend to a renewal of his appointment by the president with the consent and advice of the senate on the meeting of congress. And the court laid stress on the fact, that by the law the first appointment could not be otherwise than for a limited period.

It is true that in both these cases the recital to the bond expressed the termination of the appointment, which in the principal case it does not. But the condition here is for the faithful performance of the duties of high constable agreeably to his appointment, and in conformity with the existing laics; referring not only to the terms of the appointment, but the law under which it was made. But it needed not such reference; the commission, and the law under which it was made, necessarily enter into the obligation in construing its extent, and must be considered by the court. Thus, in Leadley vs. Evans, (2 Bing. 32,) where the condition was, that if Bailey, a collector of poor rales, should from time to time and at all times account to the church wardens and overseers for all sums collected, &c.; the court took notice that the collector of poor rates was a deputy of the overseer irhose office was annual, and restricted the liability of the surety to one year, though the principal continued to be overseer longer.

Where also a bond was taken under an act of parliament, conditioned for the due collection of certain rates and duties at all times thereafter, and it did not appear on the record that the collector’s appointment was limited, or his office annual, but the act made it annual, the court held that the surety was obliged for a year only. Peppin vs. Cooper, 2 B. & A. 431. It would be difficult to distinguish this case in any respect from the case we have in hand, either in principle or terms, except that the authority cited is stronger in limiting the obligation of the surety.

The case of Curling vs. Chalklen, 3 M. & S. 502, cited by the plaintiff’s counsel, does not at all conflict with the principle of these authorities, as the condition of the bond there was general, and neither the appointment nor the law under which it was made limited its duration. The case was decided on that distinction. Lord Ellenborough, in noticing the argument of counsel that it was an annual office, and, therefore, the obligation of the snrety should not be extended beyond the proper period of the office, said, “ Certainly, if I saw that it was properly an annual office, I should have been inclined to yield to that argumentbut on examining the act under which the appointment was made, he found nothing to show that the appointment was to have an annual commencement or termination.

The contract of surety is to be construed strictly, and is not to be extended beyond the fair scope of its terms. (Miller vs. Stewart et al., 9 Wheat. R. 680.) The obligation of this defendant was for the official conduct of Rudolph agreeably to his appointment, and in conformity with the existing laws of the state. The office to which Rudolph was appointed is an annual office; the term under which the bond was taken ended on the third Tuesday of October following; and the law made it the duty of the city council to reappoint the officer, or elect another, on that day. The defendant became surety of Rudolph in reference to this law; he was interested in the future action of the council, and had the right to presume that they would do their duty. The omission or neglect on their part, cannot prejudice him or extend his liability as surety beyond his original obligation on the terms of his bond taken in reference to the existing law. It is true that the law has provided that such neglect shall not disfranchise the corporation, and has continued the authority of all officers, including the high constable; but the law did not intend, and it is not just, that in thus saving the corporation from the worst consequences of the neglect of its officers, it should extend the! obligation of others far beyond its original character.

Wales, for plaintiff. J. A. Bayard, for defendant.

Judgment for defendant.