State v. Wayman , 2 G. & J. 254 ( 1830 )

Earub, J.

delivered the opinion of the Court.

On the trial of this cause in Anne Arundel County Court, both parties took exceptions, and have appealed to this Court. We will first decide on the exceptions taken by the Stale, and then turn our attention to those signed at. the instance of the defendant.

The suit was instituted on an office copy of the bond of Thomas II. Bowie, late Register in Chancery, against Henry Wayman, one of his securities. The bond was entered into when Thomas II. Bowie was first appointed to the office, on the 34th day of January, 1816, and he continued to act as Register until his death, in 1881, without being re-appointed by the Executive, or having renewed his obligation to the State: and the first question that presents itself is, can the plaintiff recover in this action, for the failure of Thomas II. Bowie to record all proceedings from the date of the bond, to the time of his death, which it was the duty of the Register of the Court of Chancery for the time being to record ?

This general question brings into immediate view the constitutional point in the cause, as well as the construction to be given to the contract contained in the obligation which is the ground of the action. The one will be disposed of by a recurrence to the constitution itself, and the other by an examination of the language of the condition of the bond, in connexion with the act of Assembly under which it was given.

All appointments to office under the constitution, by the executive of the State, are made by the authority of the 40th, 48th and 49th sections; and it not being pretended that the Register in Chancery is commissioned during good behavior, he is necessarily an officer of annual appointment, under the 49th section. The tenure of his office being limited, he cannot continue to act after his term expires, except in the single instance of the appointment of a successor, in which case he may act until such successor, commissioned in his stead, is qualified. If re-appointed, he may continue to act without any new commission or qualification, but unless re-appointed, he is not legally an incumbent of the office, and cannot lawfully perform any of its duties. This is the plain interpretation of the constitution ; and in arriving at its meaning, our attention has been confined to the instrument itself, and we could not think ourselves at liberty to regard the devious course which is said heretofore to have been pursued in relation to the appointment of this officer. ' The constitutional grant limits the duration of the office to a certain term, and no irregularities in the proceedings of the appointing power, can extend it beyond that period. The idea so much insisted on, of continuing office without a re-appointment, until a new appointment is made, it is supposed has grown out of these deviations from the constitutional law, and therefore cannot receive the sanction of this Court.

The parties to the bond, executed it with an express reference to the provisions of the constitution, as thus expounded ; and if its language could create a responsibility, not comprehended within them, we do not think that the expressions of this contract operate such an effect. The condition rightly and properly pursues the form the act of 1742 prescribes, and its words that seem to look to an extended responsibility, are, “whilst he shall continue in the office of Register of the Court of Chancery,” “and during the time he hath officiated in the said Register’s office;” and these, we are clearly of opinion, are to be construed to relate to the time the officer lawfully continues in his office, and not to a period when he holds it without authority. The provisions of the constitution form the basis of the contract, and like the recital in the condition of a bond, restrain the indefinite expressions used in it, and adapt them to the intention of the parties. Wliai this intention was at the time of making the contract, cannot be mistaken. It evidently was, to engage for a faithful discharge of duties, as long as they could be legitimately performed under the official grant, and no longer.

The question we have to decide in the second exception taken by the State is, whether the plaintiff’ could recover in the action a sum larger than the penalty of the bond sued upon. This subject is not without its difficulties, and they have arisen chiefly from discordant adjudications in reference to it. We will not attempt to point out these discordancies, but proceed at once with an expression of our own opinion, formed upon reflection, and on an attentive review of all the authorities we had an opportunity to examine.

Yl hen the penalty of a bond is sued for against a surety, the utmost that can be recovered is the penalty, and legal interest thereon, by way of damages, pro detentÁone debili, from the time the debt is demanded. This is the import and effect of his contract, and his accountability cannot be stretched beyond it. In this position we are fully sustained by many authorities, but by none more effectually than by 1 Saund. 58, note 1, and Harris vs. Clap, et al. 1 Mass. Rep. 308. This was an action against Clap and surety, on an arbitration bond, in the penal sum of $5000, conditioned to pay an award of $4618 68, which had remained so long unpaid, that the interest carried the amount greatly beyond the penalty of the bond. Under a rule of reference in the Court of Common Pleas, a judgment had been entered up on the award against Clap: he removed the case to the Supreme Court, on a petition of review, Avhich had been dismissed. In the suit on the arbitration bond, Clap and his surety confessed the forfeiture of the obligation; and the question made was, what sum the plaintiff was entitled to recover against the defendants. Thé judges delivered their opinions at large, and determined that the judgments should be entered for the penalty of the bond, and interest thereon, by Avay of damages, for the detention of the debt from the time it Avas demanded by the Avrit; talcing care that it should not exceed the sum due on the ayvard, Avhich Avas in truth and conscience the plaintiff’s demand; and the chief judge declared, that in no case could the plaintiff’s demand be allowed to overrun the penalty and interest thereon.

In the case under consideration,-if the Court below had granted the plaintiff’s prayer, sanction might have been given to a recovery opposed to this case of Harris vs. Clapp, et al. and as we believe, to several other authorities on this doctrine, that could easily be averted to. The plaintiff might have recovered $4000 or £1500, notwithstanding the penalty and interest fell greatly short of that sum. The prayer, however, was refused, and we entirely approve of the opinion given by the Court, Avhich declared, that the plaintiff was not entitled to recover more than £1000, the penalty of the bond. It is not in every case that interest by way of damages is to be recovered on the penalty: and when the case occurs, as it most commonly does where the obligee is plaintiff, or is asking in some form for relief, it may be considered as an exception to the general rule, which limits the recovery by the penalty of the bond. 3 Caine’s Rep. 49. 1 Dougl. 49. 2 Wm. Black. 1190. 6 Term Rep. 303, (no.) Equity Cases, 92. 3. Sergt. and Lowb. 297. That the recovery in this action was properly so limited is apparent to us, when we call to mind that the question arose on a prayer to instruct the jury, who were to assess damages for breaches assigned or proved in the condition of a collateral bond, and were wholly unauthorised by the issues to find damages for the detention of the debt. Over the last they had no cognizance, and it cannot in any way be received in this case, as a subject for the instruction of the Court.

We have a word or two more for this branch of the case, before we dismiss it: We have to beg that our proposition may not be misunderstood. When we state, that the responsibility of a surety cannot be extended further than the penalty of the bond, with interest thereon, by way of damages; our meaning is, to apply it to a question of recovery in a single case, and in no manner to affect the rights of other persons, who may have just grounds to sue the same bond.' If they have distinct demands, it is clear, that a recovery and payment in one suit can be no bar to other actions, in which the several claimants may recover to the same extent, and can only be limited by the penalty: and in particular cases, by the penalty and interest, as in Harris vs. Clap, et al.

Having decided on the exceptions taken by the Stale, we will now turn our thoughts, for a short time, to the four remaining exceptions, signed at the instance of the defendant. In the third exception the defendant’s prayer is laid at the root of the action, and denies the State’s right to maintain it. The plaintiff exhibited before the jury, sundry resolutions of the Legislature, authorizing the Governor and Council to contract, in the name of the State, with some person or persons, to record the unrecorded papers in the Chancery office: and offered the proceedings of the executive under the resolutions. And also offered in evidence the original records, made under the said resolutions and proceedings, and which had been returned to the Governor and Council, and accepted by them, and remained in the Council Chamber for the purpose of binding up, before they were deposited in the Chancery office. He also offered in evidence that the proceedings in Chancery, before the end of the third week in November, 1816, required to be recorded by Thomas H. Bowie, and left unrecorded by him, had been recorded under the said resolutions and proceedings, and accepted by the Governor and Council, and deposited in the Council Chamber as aforesaid; and he produced the said records in Court, and offered further in evidence, that these last mentioned records cost the State about §725, which it had paid to the persons employed to make the same. The defendant on his part offered in evidence from the said records so produced, that many of the cases improperly omitted to be recorded by Thomas H. Bowie, were suits between individuals to which the State was not a party, and in which the State had no other interest than what belongs to it as the guardian of the rights of its individual citizens. And then prayed ail instruction to the jury, that the plaintiff was not entitled to recover damages for the omission by Thomas H. Bowie, to record proceedings and decrees in suits, to which the State was not a party, and on account of which nothing was paid to Bowie by the State, or by him demanded of it. Our reflections on this point, have satisfied us, that the Court were right in refusing this direction to the jury. To say nothing at present of the acts of 1716, ch. 1, and 1742, eh. 10, which in terms give the action to the public, it appears to us, it may be sustained by the State on one ground without the aid of others. The records of our Courts of Justice are to be considered as public property, and so important is it to the community that they should be made up correctly and preserved with care, that when a neglect in these particulars in any ’of its officers occurs, an obligation is imposed on the Stale to supply the defect, and have the work done at the expense of the Treasury. The defaults of the officers are thus visited on the public, and their bonds afford the only means of security for the Stale to résort to against loss.

The fourth and fifth exceptions present questions of evidence, and are of minor consideration, and will be disposed of at the same time. The defendant wished to give in evidence two record books, in which were recorded proceedings required to be recorded by Thomas it. Bowie. He proved by the present Register, that two such books were in the Chancery office, and being unable to produce them, he endeavored, by testimony, to .show they were lost, in order to let in the secondary proof of them, which he offered to lay before the jury. The point then is, whether his testimony was sufficient to answer the purpose he had in view. Whether the evidence of the loss of the books, was such as to authorise the admission of the proof offered. The Court below thought it was not, and we cannot but coincide in the opinion. The utmost extent to which the testimony Went, was to prove that the books inquired after had been missed from the Chancery office, and that there was every reason to believe they had been taken out by, and were in the hands of, some of the persons engaged in recording the Chancery proceedings, under the resolutions of the Legislature: and that Joseph Mayo, the only one of the recording Clerks applied to for these record books, stated he did not recollect having taken them out, and did not know that he had ever seen them out of the office; and while the trial was going on, that he made an unsuccessful search for them among the books and dockets in the committee room of the House of Delegates, which had been used by the Clerks when employed in recording the Chancery papers. This testimony is inconclusive' and unsatisfactory, and leaves the mind in doubt, whether by a further search the record books sought for, might not have been regained. Several persons were employed in making up these records, and for some purpose, it is believed, had these books, and yet one of them alone was applied to for them, and the application to him was made at so late a period, that a confused and hurried examination for them could only be made. This is not the reasonable diligence the law requires in hunting up lost records, and is insufficient to let in, to the jury, the parol proof mentioned in the fifth exception, or the inferior evidence offered by the defendant in the fourth exception. The primary character claimed on the argument, for the reports and orders in the time of Chancellor Kilty, made under the act of 1817, ch. 119, and offered in the fourth exception, cannot be acceeded to them. If they are evidence at all, a point upon which it is unnecessary to make up an opinion, they must range in the subordinate class, and cannot be received to supply the place of a record, until conviction is produced on the minds of the Court of the loss of it. The principal objection made by the defendant in the last exception, to the instruction prayed by the plaintiff was, that the bond sued on was not required by the constitution or any then existing law, and therefore he was not legally responsible under the said bond, for the conduct of Bowie, as Register of the Court of Chancery, for any period of time. This is a question of some magnitude, and we must return again to the constitution for the solution of it. The sheriff is the only officer who is required, in express terms, by the constitution to give bond and security, and this, by the 42d section, he is bound to do, every year,u as usual.” The form then in use was prescribed by the act of 1715, ch. 46, and it was constantly after used by the sheriff elected by the people, until the year 1794, when it was found expedient to increase the penalty and alter some parts of the condition. It was competent to the Legislature to prescribe a new form of bond for the sheriff, immediately after 1776; but at that juncture, there was other business to occupy that body, and they were willing to repose upon the then laws of Maryland, which unquestionably formed the ground work of the constitution itself. How else are we to understand the before mentioned expression of the 42d section, as usual, which has a direct reference to the existing laws, or the practice under them. The County Clerks, by the constitution, are to hold their commissions during good behavior, and although they are not expressly directed to give bond and surety, as in the case of the sheriff, from the year 1776 to the year 1800, bonds were given by them, and that according to the form prescribed by the act of 1742, chap. 2. in the last mentioned year, the year 1800, a law was passed compelling the Clerks of the County Courts to give bonds in larger penalties, and with a different form of condition. The same may be said of the other officers named in the act of 1742, and in the constitution of the State; all of whom, at one period or other, within the last fifty years, have complied with the act, and given bond, pursuant to its provisions, without any respect whatever to the tenure of their offices, which, under the Provincial government, it is believed, was only durante bene plácito. Bordley vs. Lloyd, 1 Harr. and M’Hen. 27. All this uniformity of proceeding, from the earliest times, goes forcibly to prove, that the acts of 1716, ch. 1, and 1742, ch. 2, were existing laws at the adoption of the constitution, and were so considered by those who were first engaged in carrying it into execution. If this wants further confirmation, we think it may he found in the 10th section of the constitution itself, which seems to point to those laws, and to imply strongly, that other officers than the sheriff were to give bond with security. The section gives to the House of Delegates power to direct all office bonds, which are to be made payable to the State, to be sued for any breach of duty. We clearly think, then, that the defendant was responsible under the bond, for the conduct of Bowie, as Register of the Court of Chancery, the first year he was in offiee. Other objections were started by the defendant to the plaintiff’s prayer in the last exception, all of which we consider groundless, and as forming no legal impediment to the instruction given by the Court to the jury. We do not deem it necessary to give them a particular notice.

JUDGMENT AFFIRMED.