Banner v. McMurray, 12 N.C. 218, 1 Dev. 218 (1827)

June 1827 · Supreme Court of North Carolina
12 N.C. 218, 1 Dev. 218

Charles Banner v. John McMurray and others,

From Stokes.

A deputation of necessity expires with the office on which it depends. Therefore, where a Sheriff appointed a deputy, who gave bond for his faithfbl conduct " during his continuance” therein, and the Sheriff was re-appointed, and the deputy continued to act under him for several years, it -was held that the words during &c.” should be restricted to the first year, for the deputation expired then; and whether even express words, could have extended the liability further ? Quere.

The' Plaintiff was appointed Sheriff of Stokes in June, 1813, and in January, 1814, appointed the Defendant *219 McMurray, one of his deputies, who with the other Defendants as his sureties, executed a penal bond to the Plaintiff, “in which he was called Charles Banner, now Sheriff of Stokes,” with a condition, which after reciting that the Plaintiff had appointed McMurray one of iiis deputies, provided, that if McMurray should ably and faithfully demean himself in his appointment of deputy Sheriff, perform all and every act and acts which he should be legally bound to perform “ during his continuance in said appointment,” then the obligation to be void, &c. In June, 1814, when the Plaintiff’s office by its tenure expired, be was re-appointed, and so also in the years 1815 and 1816. McMurray, during ail this time, continued to act as deputy, by color of his original deputation and duly qualified as such in June, 1814, for the ensuing year and so also in June, 1816.

In June, 1814, McMurray was in default as deputy to the amount of 0191 69, for the official year ending at that time. At the end of the second year in June, 1815, he was in advance to his principal, on account of that year in the sum of 0176 67, and in June, 1816, he was again in default for the year then expired, to the amount 01045 05. At June session, 1816, of the County Court, the Plaintiff was paying the county tax for the year 1814, and called on McMurray for money, who paid 0315.

In 1819, the Plaintiff brought this action upon the bond of McMurray and the other Defendants, and assigned many breaches, of w hich the only ones that applied to the year ending June, 1814, were for not collecting and for not accounting for the county taxes for that year. On the trial, before his honor Judge Norwood, the foregoing facts were stated in a case reserved. Upon which he gave judgment for the whole amount for which the deputy had been in default, after deducting therefrom the two sums of 0315 and 0176 67 above stated, and the Defendants appealed.

*220 Mash & Badger, for the Appellants,

The words is during his continuance in said appointment,” are satisfied by a performance during the year in which the bond was given, and shall not extend the lia-biiity of the Defendants to subsequent years in which the deputation was’renewed, (Ld. Arlington v. Merricke, 2 ■Saund. 412 — Liverpool Water-works Co. v. Atkinson, 6 East 507.)

And it makes no difference whether the duration of the appointment, appear on the fae'e of the condition or not; tiie terms of the engagement shall in all cases, he qualified and restrained by the nature of the office in reference to which the parties contract and the largest general terms, shall not include re-appointments, (Wardens-of St. Saviours v. Bostick, 2 Jf. E. 175 — Hassel v. Long, 2 M <§• S. 363.)

Tliis principle as well as the general doctrine to which it belongs, is fully and clearly stated and illustrated in Parker v. Parker, (1 Term 11, 9.07) African Co. v. Mason, (cited 1 Strange 997) and Wright v. Russel, (3 Wits. 530 — -3 Bl. Rep. 944, S. C.)

The utmost therefore, for which judgment should have been entered, is the difference between the deficits of June, n1814, and the sum which the deputy was in advance at June, 1815.

But we contend that judgment should have been for the Defendants; the 8315 paid by McMurraij in June, 1816, was applied to the discharge of the tax due in 1814, in respect to which he was in default, it was not then a general payment in account between the Sheriff and the deputy, but a payment appropriated to the ex-tinguishment of the only claim for which the Defendants are liable on this bond.

For the Plaintiff, no counsel appeared,

but one of the bar as amicus enrice, referred to Hughes v. Smith & Mil., lev, (5 Johns. Rep. 168.)

*221Henderson, Judge.—

The deputation given to McMurray expired with the appointment of his principal, as the principal could not suj,st;tute another in an office which the. principal did not then hold ; the deputation I presume, would so have expired, even if it contained words importing a substitution in future years, when the Sheriff might be re-appointed, but certainly it is so when general words only are used, as in the present case.

The only evidence we have of the extent of the deputation is contained in the recitals of the bond and condition, the former describes Bonner as “now Sheriff of Stokes” and the latter recites that he “ has appointed McMurraij one of his deputies,” it would therefore be inconsistent as well with authority as reason, to extend against sureties the obligations of this bond to the faithful discharge of any other duties, than those arising from the deputation which ho then held. In support of this, I refer to 6 Bast. 507 — 2 Saunders 412, and the other authorities cited in the argument. . We must confine ourselves therefore, to the breaches at June, 1814, when Banner’s appointment, expired. McMurray was then in default in the sum of ¡¡§191 69, and this breach is within the obligations of the bond, for this sum then with interest, judgment would be rendered, were it not that in June, 1815, McMurray was in advance to the amount of $176 67, in other words, Banner owed him that sum.— However, McMurray and Banner might themselves have settled it, if no other persons were concerned, yet where sureties are concerned the fact of Banner’s having so much money in his hands belonging to McMurray was ipso facto, a satisfaction even in a Court of Law, of the breach as far as it would go, and it was out of the power of Banner and McMurray by any agreement either express or implied, to appropriate it to other purposes, thereafter to happen. I say thereafter to happen, for *222bad there been at the time, any other debt due to Banner from McMurray, McMurray might upon paying it, have applied it to that debt, or in his default of making the application, that right devolved on Banner ; or if McMurray l)ad paid upon any special agreement, or for a particular purpose, it would not ha\ e operated, as satisfaction for the default. But where money falls into the hands of the creditor rightfully, and by the debtor’s consent for no definite and particular purpose, when sureties are concerned, and the creditor has but the one demand, it operates ipso facto a discharge of the obligation, for such application can then do neither the creditor nor the principal debtor any wrong, and in the absence of all evidence why it was placed there, the presumption is irresistible that it was placed there in satisfaction of the obligation ; which presumption, the creditor and principal debtor may do away or destroy as between themselves by their after conduct; but the rights of others sureties, cannot be effected by their acts. As to the payment of the S315 at June Term, 1816, McMurray not having made the application when he paid it, and being then indebted to Banner in a larger amount, the right of application belongs to Banner.

The judgment therefore, should be for the difference between the sum of S191 69 and St67 67,with interest.

Per curiam. — Judgment reversed, and judgment for the Plaintiff for the lesser sum.