Furbush v. Lee County , 37 Ark. 87 ( 1881 )

Eakin, J.

It appears that when these proceedings began in the County Court in October, 1879, Mervin who had been deputy collector under Furbush, was then himself the ■clerk and Furbush had left the county. It does not appear whether any settlement had been made between the collector and clerk in 1878 on account of taxes for 1877, or what balance had been found against the collector. It is to be inferred, however, that there was no controversy save as to the particular item to which the motion was directed. The County Court had jurisdiction of the subject matter, and for the purposes of this decision, it may be taken that its action on the motion was final as to the settlement.

The securities of Furbush can not be regarded as parties to the proceedings. They might have been admitted to' appear in person or by attorney, but Mervin, as deputy collector, had no more right to répresent them than any other individual would have had. It is a fundamental principle of modern pleading that the remedies must be sought in the names of the real parties in interest if they are competent to act sui juris. The motion and the appeal are really in the name of Furbush and must be so considered. The deputy had no interest whatever. In this view Furbush isestopped by his contract from claiming that the package of scrip was actually paid into the treasury. He reclaimed it because he was unwilling that it should go into the Treasurer’s hands upon such a receipt as that given by the Treasurer to Hewitt. This he had the right to do, remaining liable, however, for the amount actually due. If he acted in bad faith his securities are none the less responsible ; they answer for his fidelity, and he has control of the funds collected until they are finally paid overto the person authorized to receive them.

The courts can not recognize the right of a deputy to control the conduct of his principal, or to act as agent of his principal’s sureties, to keep funds out of his principal’s hands, and administer them himself. Persons who become sureties with the suspicions which such a course implies, must abide the risks. The practice has been common and results from political causes with which we have nothing to do. Whilst we may sympathise with a people whose circumstances make it necessary, we cannot give it legal sanction.

The case would not be different if the motion had' been made in the proper names of the sureties. The court, rightly found that the payment into the treasury was never really consummated. The deputy might well have employed an agent or messenger, or obtained the serivces of a friend to transmit the money to the Treasurer and take a receipt-He could not authorize the messenger however, to take any other than a true receipt for the whole amount paid in,, principal and interest. Such a receipt should have been given, as receipts are but memoranda and evidences of facts. If the collector had been on his part liable for interest, it should have been shown by a charge per contra A mere stranger acting for a deputy had no right to determine this question, and the collector might repudiate his-action and leave matters in statu quo.

Affirm the judgment.