Taylor v. Johnson ex rel. A. W. & W. P. Carmichael , 17 Ga. 521 ( 1855 )

By the Court.

Lumpkin, J.

delivering the opinion.

[1.] Every point in this case is encompassed, more or less, with doubt and difficultjr — perhaps none more so than the first.

Jeremiah Taylor having been elected Sheriff of Habersham County the first of January, 1852, on the fifth day of Eehruary next ensuing, gave bond for the faithful performance of the duties of his office, with Thos. J. Hughes, P. B. Haralson, James Colly and R. Nash as his securities. The bond was attested and approved by three Justices of the inferior Court.

On the 17th day of April thereafter, being the first sitting of the Superior Court for that county after the election and qualification of Taylor, Judge Jackson examined the bond, as it was made his duty to do, under the law, and passed the following order: “ Examined and approved by Archer Whitehead’s signing as additional security, in presence of the Clerk of the Superior Court.” And this was done, as appears by the official attestation of that officer.

The action against the Sheriff and his securities, for the official misconduct of the Sheriff was brought upon 'this bond; and when the bond was offered in evidence, it was objected up-*on the grounds — 1st. That by the Act of December 26, 1845,. the Judge of the Superior Court was not authorized to strengthen the Sheriff’s bond, by requiring another name to be s'gned to it — and 2dly. That the bond, so altered, could not bind either the old or tho super-added security.

Tho first question necessarily involves a construction of the Act of 1845 — and in order to do this intelligibly, it becomes necessary to glance briefly at our previous legislation upon the same subject.

The Act of 1799 (Cobb’s Digest 57, 45) declares, “Thatthe Sheriffs of the several counties shall attend the Superior and Inferior Courts in the respective counties when sitting, and by themselves or deputies, execute throughout the counties all writs, warrants, precepts and processes directed to them, .under the authority of any Judge or Justice of the said Superior or Inferior Courts, or the Clerk of either of the Courts; and the said Sheriffs or their deputies shall have power to command all-necessary assistance in the execution of their duty; and to ap point, as there shall be occasion, one or more deputies; and before any Sheriff shall enter upon the duty of his appointment, and being commissioned by the Governor, he shall be bound, for the faithful performance of his duty, by himself and his deputies, before any one of tho said Judges, to the Governor of the State, for the time being, and to his successors in office, jointly and severally, with two good and sufficient securities, inhabitants and free-holders of the county, to be approved of by the Justices of the Inferior Court or any three of them, in the sum of $20,000; and the said bond shall remain in the office of the Clerk of the Superior Court of such county, and may be sued for by order of said Court, for the satisfaction of the public or persons aggrie vedby the misconduct of the Sheriff or his deputy,” kc.

In 1803, doubts having arisen as to who ivas the proper person authorized and intended by the foregoing act, to take the bonds and obligations of Sheriffs, a declaratory Statute was passed, (a very common sort of legislation in this State) to the effect: “ That any Judge of the Superior or a majority of the-•"Justices of the Inferior Courts of the respective counties throughout this State, is and are, and by intendment of law, ought to have.been taken, held, deemed and considered as competent in law to take the bonds or the obligations of Sheriffs and to qualify them as by law directed.” (Cobb’s Digest, 199.)

By a careful perusal of the Act ofv1799 and 1803, it will be seen that the doubts which arose under the former of those Statutes and the remedy provided by the latter for their removal, related exclusively to the question as to w'ho should take Sheriffs’bonds; and the law directed that cither the Judges of the Superior or the Justices of the' Inferior Courts, or a ma-' jority of them, might perform this service. And by scrutinizing the Act of 1799 closely, does it not seem plain that no matter by whom the bond was taken, the security ivas to he approved hy the Justices of the Inferior Court or a majority of them ? To secure its legal execution, the duty of taking it might well have.been confided to the Judges of the Superior Courts. At the same time, it must be admitted, that the Justices of the Inferior Courts of the respective counties are better ■qualified, by their local knowledge, to .judge of the sufficiency of the security.

With this passing remark upon the previous Statutes, we come to the Act of 1845. It- purports to be “ An Act to alter and amend the several Acts then in force in relation to the taking of Sheriff’s bonds,” and declares, that “ From and after its passage, it shall be the duty of the Judges of the Superior Courts of this State, at the first sitting of the Superior Court in any county, after a Sheriff shall have been elected and qualified for such Courts, to examine the official bond of such Sheriff ; and if the bond has not been taken in conformity to the law, it shall be the duty of the Sheriff to give another (?) bond in conformity to the law — which bond the Judge is hereby authorized and impowered to take ; and when so taken, shall be ■entered on the minutes of the Superior Court.” (Cobb’s Digest, 217).

Did the Legislature, by this Act, intend to confer upon the Judges of the Superior Courts the power of examining into the solvency as well as the legality of Sheriff’s bonds ?

We cannot resist the conviction, from the phraseology of this Statute as well as its predecessors of 1799 and 1803, that it was designed to delegate to the Judges of the Superior Courts the duty of supervising the formal execution of Sheriff’s bonds, leaving it to the Inferior Courts, as before, to take care of their solvency. The Judges, says the Act, are to examine'the bonds to asoertain^-what? Whether the security is sufficient ? No, but whether they have been taken “in conformity to the lato.” What was the mischief? Not that the public had suffered on account, of the "insolvency of Sheriff’s securities, but that they had escaped, by reason of some technical defect in these instruments. This was the evil intended to be remedied.

We know, however, that a different construction has been put upon this Act in some sections of the State; and contemporaneous construction, when it is general and uniform, should have some influence even in the interpretation of a recent Statute. Perhaps the General Assembly had better settle this difficulty definitely; and thus, save further litigation upon the point.

[2.] Conceding, however, that his Honor, Judge Jackson, was authorized to act in the,premises, what is the effect of the change made in this instrument ? The Act requires that another bond be taken in conformity to the law. Hero an additional security was added to the old bond, without the privity or consent of the former securities.

Respectable authority may be found on both sides of this question. ,The case in Levinz, p. 35, establishes, that after ■ the delivery of a bond a new obligor may be added in this way, without avoiding the instrument as to any previous party. Chief Baron Gilbert in treating on this topic observes, “but if any material part of the contract be altered, aftor sealing and deliv- < r\ —us if A, with a blank left after his name, be bound to B, ;nd .-mor, 0 is added as a joint obligor, this does not avoid the bond ; for ho was bound to pay the whole money, without such addition.” (1 Lofts’ Gilbert, 111.) And the ease of Yonah vs. Clay, which the author quotes as reported in Ventris, 185, undoubtedly sustains the doctrine; for there, the Court overruled the plea of non est factum, on the ground that the bond remained the same as to the previous obligor. And the note at the end of Pigot’s case, (11 Coke,) also recognizes this principle.

But in O’Neale vs. Long, (4 Cranch, 59,) the Supreme Court of the United States held, that if a bond is executed by O, as security for S, to obtain an appeal from the judgment of a Justice of the Peace, and the bond is rejected by the Justice; and afterwards, and without the knowledge of 0, the name of W be interlined as an obligor, who executes the bond, and the Justice then accepts it, it is void as to O.

Mr. P. B. Key contended, in the first place, that the deed was void by the alteration in a matter essential; thereby ma king it the deed of four when it was only the deed of three persons; and that it was immaterial whether the alteration was for the benefit of the obligor or not, the only question in all .such cases being, whether the deed be substantially varied. He insisted, secondly, upon the authority of Whelpdale’s case, (5 Coke, 19 b,) that after the rejection of the bond by the Justice, it could not be again set up without a new delivery; that the Justice was substituted, by the law, for the obligee, and that his rejection is equally fatal as if the bond had been tendered to and refused by the obligee himself: (Shep. Touchstone, 70.)

Mr. Mason, on the contrary, argued that the alteration did not vary the deed, as it was obviously for the benefit of the defendant ; that it was not the less the deed of the defendant because it became the deed of another; that it was in the nature •of a judicial proceeding and not a mere matter of contract between man and man. It is a security required by law in a civil action.

Chief J. Marshall, who delivered the opinion of the Court, ■.stated, “that the Judges did not agree upon the same ground, ■some being of the opinion that the bond was void by reason of the alteration; and others, that it Avas vacated by the rejection of the Magistrate, and could not be set up again Avithout a new delivery — but that all agreed that the bond Ayas void.”

Two cases more perfectly parallel could not well be imagined.

[3.] [4.] The rule of law is not disputed, that the liability of a surety cannot be extended beyond the actual terms of his engagement; and that his liability will be extinguished by any act or omission which alters the terms of the contract, unless it be with his consent. And for myself; I am satisfied that the uniform doctrine of the books, supported by numerous decisions, is, that it matters not that the alteration be for the benefit of the surety, because he has a right to stand upon the very terms of his agreement. And it is no answer to a surety to say that the alteration is not material. He has a right to determine for himself, whether he will- or will not consent to the alteration — whether he thinks it material or immaterial. No power of man can alter his engagement, and his liability be retained. He has a right to stand upon the very terms of his contract; and without his consent, any variation of it is fatal. The law will not alloAV others to speculate as to A\hether or not the alteration be to his prejudice. Adhere to this rule and the course of Courts is safe and simple. Depart from it; and there is no limit — where Avill you stop ? "Who can tell what considerations influenced the first securities to enter into this undertaking with one another for Taylor ? Pecuniary responsibility is not the only nor always the main motive which moves parties to unite in such an undertaking. .Personal as Avell as pecuniary considerations have much to do with it. There may be rich men that would be willing to be bound with Taylor; and yet, Hughes and the other sureties might utterly object to such an association. Has not each co-obligor the right to select his fellow-bondsmen ? Where the measure of damages is unsettled, the popularity of parties in a community will have its influence, justly or not, in the amounts for Avhich verdicts are rendered. But I forbear to enlarge. Suretyships stand upon the exact agreement they have entered into, ■ and they would not stand without it. If it be a needful undertaking which is doubted by many and positively forbidden by Scripture, it is at least always one of peril; and it most usually overtakes and overwhelms those whom we could most wish to see saved — the generous and the humane. That is a bad policy which would increase its dangers.

[5.] The only question then is, has the identity of the bond been destroyed ? Would the plea of non est factum be overruled on demurrer, on the ground that the bond remained the same ? We forbear to decide this question.

[6.] The plaintiff tendered in evidence a rule nisi, including sixteen cases, calling upon Taylor, the Sheriff, to return the ft. fas. into Court with his actings and doings thereon; and to show cause why he did not pay over to the several plaintiffs therein specified, the amount of money due to each of them respectively, upon the executions.

To the admission of this paper in evidence defendants objected, on the ground that these various cases in favor of different plaintiffs and against different defendants, could not be included in the same rule. The Court over-ruled the objection and allowed the testimony to go to the Jury; and thereupon, defendants, by their Counsel, excepted.

The only authority read and relied upon in support of this exception is, the case of Patterson et al. vs. The Officers of the Circuit Court of Mobile, (11 Ala. R. 740.) The first head note is, that several plaintiffs having distinct interests, cannot unite in a motion against the Sheriff.

Without stopping to inquire whether or not the opinion of the Court justified this marginal proposition, we have only to say, that a contrary practice, founded in convenience, and attended with no practical evils, has obtained in all the Courts of all the Circuits in this State, time immemorially. And that wre see no sufficient reason for departing from it at this late day. Any number of parties unite in a creditor’s bill. And a money motion has always been analogized to a proceeding in Equity.

The same objection was taken to the rule absolute as that alleged against the rule nisi, and was over-ruled by the Court, and the decision excepted to.

We deem it unnecessary to repeat what we have already said upon this point.

[7.] The next question made by the record is, how far was the rule absolute taken against the Sheriff, evidence in the suit upon the bond against his securities ? Counsel for the defendants insisted on its entire rejection: whereas, the other side ■maintained that it was conclusive as to the liability of the securities. The Court following the load of most of the American cases and of this Court, took the middle ground, and charged that the rule absolute was conclusive against the Sheriff, and prima facie evidence against the securities.

After a careful re-consideration of the rule adopted hv this Court upon this subject, wo are disposed to adhere to it, although it is somewhat difficult to perceive upon what principle it rests. One thought is suggested by this record — there are two'breaches assigned in the suit upon the bond — one, the failure or refusal of the Sheriff to obey the rule absolute ordering ■ him to pay over the money; and the other, the neglect of the-Sheriff to sell the property levied on according to law. Is not his disobedience to the rule absolute such “ official misconduct” as constitutes a breach of the bond ? And is not the judgment against him conclusive against the securities and every body else, of that fact ? As to the quantum of damages assessable under this assignment, that is quite a different thing.

Mr. Justice Johnson, late of the Supreme Court Bench of the United States, said in one of his opinions, that Lord Coke “seldom let an opportunity escape him that furnished an apology for exemplifying his indefatigable research, and to make each case he reported authority for a score of positive decisions and the introduction to a mass of law upon questions totally distinct. And that his Reports, like the Text of Little-ton, are only to be considered as the occasion or excuse for displaying his acquirements in the law learning of his day, and expressing his opinions upon judicial topics.”

If Reports, which have gone through some twenty English editions, and Commentaries, which are styled the “ Golden Book,” “The Bulwark of the Law,” &c. are thus criticised, I Shall content myself with citing merely some of the leading Cases upon this head. (See Munford et al. vs. Overseers of the Poor of Nottaway, 2 Randolph’s R. 313. 1 Wash. (Va.) R. 31. 3 Atkin. 248. Peak on Ev. vol. I. p. 26. 4 Monf. 243. 10 Viner’s Ab. 464. 1 Greenlf. Ev. §187. 12 Wheat. 515. 5 Binney, 184. 6 Ala. R. 826. 2 Leigh. 393. 4 Ohio, 487. 4 Monf. 317. Note 3 to 4th vol. of Cowan & Hill’s Notes to Phil, on Ev. Part II. 3d edition.)

[8.] The last and main assignment of error is as to the rule prescribed by the Court as to the measure of damages in this case.

Judge Jackson, under the decision of this Court in Crawford, Gov. &c. vs. Wood, Wofford et al. (7 Ga. R. 445,) charged the Jury, that the measure of damages was the amount of the plaintiff’s debt, with interest and cost, and 20 per cent, damages, from the date of the rule absolute.

The facts in the case are these : On the 26th of October, 1852, a fi. fa. at the instance of A. W. & W. P. Carmichael, the defendants in error, against Peter B. Haralson of Haber-sham and John I). Field of Lumpkin County, for the sum of $186-^, including interest and cost, was issued and delivered to Jeremiah Taylor the Sheriff of Habersham County; that on the 25th of February, 1853, Taylor levied upon lands of Haralson in Habersham County; that at the adjourned term of the Superior Court, held on the 13th day of May, 1853, the property being unsold and no return of nulla bona made as to either of the defendants, a rule absolute was obtained against the Sheriff ordering him to pay ovei', instanter, the money due upon the plaintiff’s j6. fa.; that on the 4th of October, 1853, Taylor returned on the fi. fa. that he had sold the land for $210, and that he,had distributed the money to the plaintiff’s execution and eleven others against the defendants, still making no return of no further property to be levied. And thereupon, on the 24th of February, 1854, the plaintiffs brought their action of debt upon Taylor’s official bond, against him and his securities.

The defendants proved that the proceeds of the property levied on had been distributed to the various fi. fas. according to their respective liens; that all of Haralson’s property had- been-sold except a¡ cow or two supposed to be running at large in the mountains and a few hogs in the woods, not amounting to more property than is allowed under the Exempting Law, in favor of poor debtors ; that in the fall of 1852 defendant had a store at Mount Yonah, containing a stock of goods worth, perhaps, several hundred dollars; that the stock was reduced -to a mere remn'ant by the latter part of the winter; that the property-levied on was rising in value from February, 1858, when, it-was levied on, to October of' that year, when it was sold. These facts were substantially testified to by all the witnesses..

We are compelled to admit that it is competent for the Sheriff, in a case like this, to prove, in mitigation of damages, any facts showing that the plaintiffs have suffered nothing or but little by his default or breach of duty. (7 M. &. W. 463, 473. 4 Id. 145. 10 Mass. R. 470. 1 N. H. 82. 2 Mass. 526. 2 Bay, 395. 2 Bing. 317. 1 Johns. R. 215. 7 Id. 189. 11 Mass. R. 89. Id. 188. 2 Greenlf. 46. 45 En. Com. Law R. 577. 28 Id. 383. 1 M. & W. 713. 2 Cr. & M. 413. 10 A. & E. 719. 2 Eng. Law & Eq. 260. 73 En. C. L. R. 371. 24 Maine, 183. 5 N. H. 433. 2 Mass. R. 374. 10 Id. 479. 6 Pick. R. 468. 9 Metcalf, 564. 9 Conn. R. 380. 16 Id. 555. 1 Hill’s N. Y. R. 8. 4 Sandf. N. Y. R. 67. 8 Watts, 153. 5 Watts & Serg. 455. 2 Gill. 62. 9 Leigh. 397. 1 Hawks, 425. 1 Iredell, 318. Harper’s Law R. 73. 1 Bailey, 646. 4 Littell, 152. 4 J. J. Marshall, 202. 3 McLean’s C. C. R. 97. 4 McCord, 84. 16 Ohio, 539. 6 Ga. R. 244. Sedg. on the Measure of Damages, 506.)

Indeed, I am • satisfied that the rule, that the whole sum must be given, is never applied to an action of debt upon the-Sheriff’s bond; and that it is only in debt for an-escape on execution, under the English Statutes, that the measure; of damages is the amount of the judgment, without abatement on account of the poverty of the debtor or any other circumstance. And yet, so firmly persuaded I am of the necessity of holding all officers to a rigid accountability, from the Chief Magistrate -of the Union down to a tide-waiter or a railway tract-walker; and seeing, as I think I do, in many of the adjudicated cases, the cause as well as the proof of the degeneracy and disregard of the law in these latter days, I would, w'ere it in my power, uphold and maintain the doctrine in 7th Georgia Reports in all its stringency — not because it emanated from this Court, but because it is calculated to subserve and promote the best interests of tho country. But convinced, as I am, that to -do so would be to assume legislative functions, I cannot hesitate as to my duty.

[9.] [10.] The object of our law in requiring the Sheriff to give a bond and prescribing its conditions, was to provide, in addition to'other remedies, more ample security to all persons interested in its faithful performance. It was not intended to increase the Sheriff’s obligations or to render a more summary redress for his defalcations than existed by action on the case at Common Law; and consequently, not to conclude him from any defence which he had in that action. In a suit before a bond was required, actual damages only could be recovered, -unless the action under the Statutes of Westminster 13, Ed. I. ch. 11, and 1 R. II. ch. 12 was adopted. Why should the amount to be recovered be different after the bond ? A suit on the Sheriff’s bond is no more a pursuit of the remedy presented by the Statutes than was the action on the case. And this is the clear, legal and conclusive view of this subject which has controlled my judgment.

[11.] This, we repeat, is an action of debt, not under the Statutes of Westminster and Richard, but on a bond — a Statutory bond — with a collateral condition by the Sheriff and his securities, for the faithful discharge of his duties, and with a penalty annexed for a violation. At Common Law the whole penalty was recovered, notwithstanding it far exceeded the injury sustained.

[12.] To remedy this hardship and to render a resort to’ Equity for relief unnecessary, the Statute of 8 and 9 William, III. ch. 11 was enacted. And that Statute has been adopted, in Georgia. (Schley’s Digest, 288.)

[13.] Under its provisions the defendant is liable to no greater damages than the plaintiff has sustained, to be ascertained by the verdict of a Jury, except in a certain class of cases, and this is not one of them. On the contrary, this case falls under the general rule, where the measure of damages is not fixed and certain, and where the party can only recover the damages which the Jury shall believe he has actually sustained under all the circumstances, and after a full investigation of all the facts.