Hughes v. Smith & Miller , 5 Johns. 168 ( 1809 )

Kent, Ch. J.

delivered the opinion of the court. The several special pleas in this case, except the last, amount to the general plea of non damnificabas ; and the questions arising on the record respect the sufficiency of the assignment of breaches in the replications. The last plea is no answer to the declaration, as it only avers, that the defendant, Smith, suffered no breach of the bond, previous to the time that the plaintiff took upon himself the office of sheriff, under a reappointment in 1803, and is silent as to the acts of Smith, subsequent to that period. The bond covered the acts of Smith, so long as the plaintiff was sheriff, and Smith continued under-sheriff. It was not necessary to have the bond renewed upon the renewal of the plaintiff’s commission. The bond was, that Smith should execute well the office of under-sheriff, during his continuance in such office; and he was equally in that office, after as before the reappointment of the plaintiff. There was no interval between the one appointment and the other, in which the plaintiff was not sheriff; and it was not necessary to reappoint Smith, in order to constitute him under-sheriff. He had no concern with the renewal of the plaintiff’s commission, so long as there was an unbroken continuation of the plaintiff’s authority.

The replication to the second and third pleas assigns special breaches, and points out the instances, and names the causes in which the plaintiff had.sustained injury by the acts of Smith. No objection is made to this part of the replication. The plaintiff then assigns a. breach in more general terms, by saying that Smith had collected moneys, as under-sheriff, to the amount of 1,000 dollars, which he had refused to account for and pay. This general assignment is sufficient, and is now admitted, in order to avoid a cumbersome prolixity upon the record. The rule was acknowledged, and applied by this court, in the case of The Postmaster-General v. Cochran; (2 Johns. Rep. 413.) and a reference was made, to the English authorities, of which Thurn v. Farrington, and Barton v. Webb, (1 Bos. & Pull. 646. 8 Term Rep. 459.) are the latest and most pointed on the subject. The plaintiff, in the same replication, goes on further, and alleges, that Smith had embezzled 1,000 dollars, received by him as under-sheriff, and belonging to the plaintiff, and which he had refused to account for. This general assignment is equally within the rule, but the defendant contends that the bond does not cover such acts. It is to be observed, that the assignment alleges these acts of embezzlement to have been done by Smith, as to moneys received by him as under-sheriff; and the condition of the bond is, that he shall execute the office of under-sheriff, according to law, and without fraud. I have no doubt but that an embezzlement of moneys received as under-sheriff, is a breach of this condition. The plaintiff, lastly, assigns in this replication, as a breach, that he had been obliged to pay to the amount of 1,000 dollars, in consequence of the negligence and acts of Smith, in his office. Here it might, perhaps, be doubted, whether this general assignment was within the rule, as the causes in which, the persons ’ ... to whom, and the acts by reason of which the plaintiff had been obliged to pay the money, were within his knowledge. But the prolixity upon the record would, be equally burdensome in this case, as in the former instances ; and the acts of the defendant, which had rendered the plaintiff liable, were equally within the knowledge of the defendant. The breach is assigned in the words of the condition, and the assignment, necessarily amounts to a breach ; and when that is the case, the general rule is, that the plaintiff may assign the breach generally, by negativing the words of the covenant; and were this assignment bad, on special demurrer, it is certainly good on general demurrer; and the defendant hath not alleged the omission in this part of the replication as one of his special causes of demurrer, (Simmons v. Langhorne, 2 Wils. 11.)

The replications to the fourth and fifth pleas are also general assignments of breaches ; and are sufficient for the same reasons which render the assignment good in the last part of the replication to the second and third pleas. So that, upon the whole record, the plaintiff is entitled to judgment.

Judgment for the plaintiff.