Poole v. Cox, 31 N.C. 69, 9 Ired. 69 (1848)

Dec. 1848 · Supreme Court of North Carolina

31 N.C. 69, 9 Ired. 69

WILLIAM R. POOLE, CHAIRMAN, &c. vs. ANDREW COX & AL.

When a terra of office (as that of sheriff) is for more than one year, the bonds given for the faithful discharge of the duties of his office, at the time of the appointment, and the new bonds given from that time to time afterwards, are cumulative ; that is, the first bonds Continue to be a security for the discharge of the duties during the whole term, and the new bonds become an additional security for the discharge of such of the duties as have not been performed at the time they are given.

The cases of Bell v. Jasper, 2 Ire. Eq. 597, and Oats v. Bryan, 3 Dev. 451, cited and approved.

Appeal from the Superior Court of Law of Wake County, at the Fall Term, 1848, his Honor Judge Dicic presiding.

•• This was a case agreed, and the following are t.he facts. James Edwards was elected sheriff of the County of "Wake, for two years, commencing at August Sessions, Í846, when he gave a bond in the penal sum of five thousand dollars, for the collection and payment of the County, Parish, and School Taxes. At August Sessions, 1847, he executed a bond, for the same purposes, in the penal sum of five thousand dollars in conformity with the law requiring a renewal of his official bonds, and died about the 20th of September following, without having made any settlement for the said taxes or any portion of them.

• The sheriff, at bis death, had collected, on account of said funds, the amount of seven thousand seven hundred and seventy dollars and eighty cents, ($7770 86-100) of which the sum often hundred and ninety-five dollars and eighteen cents, ($1095 18-100) was on account of the common school fund, and the residue for County and Parish taxes. On the 2Sth day of January, 1848, the plaintiff, William R. Poole, as Chairman of the Board of superintendents of common schools, having demanded the money, due that fund, of the defendants as sureties on the official bond of August 1847, and they refusing to pay the same, instituted this suit, by giving notice to them of an intended motion for judgment against them, at February Sessions, 1848, for the said sum of money; which was done ; a motion made, judgment of the County Court rendered therefor, and an appeal'taken to the Superior Court, where the cause pended until this term.

After the institution of this suit, an action was commenced in the County Court of Wake on the bond of August, 1846, at the instance of the Trustees of the said three funds, and judgment confessed on the said suit for the entire penalty of the bond, to-wit, five thousand dollars, (g.5060.) At this term of the Court, the defendants pleaded, since the last continuance of the cause, the said judgment of the County Court, in bar of the plaintiff’s re. covery.

If, upon the foregoing case, the plaintiff, in the opinion of the Court, shall be entitled to recover, it is agreed, that he shall have judgment for the said sum of ten hundred and ninety five-dollars and eighteen cents, with interest from the 1st day of October. 1847; and if the opinion of the Court shall be with the defendants, then judgment of non-suit shall be entered.

And the Court being of opinion that the plaintiff is entitled to judgment, it is considered that the plaintiff recover against the defendants, the said sum of fen hundred and ninety-five dollars and eighteen cents, with interest from 1st day of October, IS 17, and costs of suit. Appeal to the Supreme Court by the defendants prayed and granted, and without security, by consent.

N. B. The judgment was rendered proforma, by consent of parties.

B. F. Moore, for the plaintiff.

G. W. Haywood, McRae and Iredell, for the defendants.

Pearson, J.

We consider the principle well settled, that where a term of office is for more than one year, the bonds given, for a proper discharge of the duties of the office, at the time of appointment, and the new bonds given from time to time afterwards, are cumulative— that is, the first bonds continue to be a security for the discharge of the duties, as at first intended, and the new bonds become an additional security for the discharge of such of the duties, as have not been performed at the time they are entered into.

This principle is deduced from two considerations. The new bonds are not required for the relief of the sureties upon the first bonds, but are taken for the benefit of those, who may be concerned in the proper discharge of the duties of the office ; and when the office is to continue for more than one year, it was presumed that the bonds, taken at first, might become insufficient from the insolvency of the sureties or other causes; hence the Legislature took the precaution to require new bonds to be given from time to time, and the Courls, in order to give effect to the intention of the law-makers, consider the new bonds not as taking the place of the old ones, but as additional thereto.

Bell v. Jasper, 2 Ire. Eq., and other cases settle this principle as to the bonds of guardians. Oats v. Bryan, 3 Dev. 451, settles this principle as to the bonds of Clerks. The same principle is applicable to the bonds of Sheriffs. We presume, the question would not have been raised, but for the fact, that formerly sheriffs were appointed' annually,' and then their bonds were not cumulative, for each appointment was a new office, and the sureties of one year were no more bound for the duties of a former year, when the same man was appointed a second time, than if another person had received the appointment; bat when the law was changed, so that the sheriffs are elected for two years, and are required to renew their bonds annually, then the principle of cumulative bonds clearly applied. When there is the same reason, there is the same law.

The counsel for the defendants attempted to take a‘ distinction, between bonds, like the present, given at the expiration of the first year, for the collection of County,poor, and school faxes, and the then bonds of a sheriff'; insisting that bonds, like the present, are prospective — ■ that this bond, given in August 1847, was a security for the taxes collected in 1848, and the bond, given in August 1846, a security for the taxes collected in 1847.

We are unable to see any ground for this distinction. The principle, which has been established, is, that the new bonds are additional securities for the discharge of all such duties as have not been performed at the time they are entered into, as well such as have been commenced, but are not completed, being “in fieri,” as those which have not been entered upon. In this case the duty of collecting, receiving and accounting for the taxes collectable in 1847, had been commenced, but was not completed, and it falls within the words of the bond, and within the principle above announced.

The defence of a former judgment is wholly untenable. The parties, in this action, are not the same — the bond is not the same ; and, by the case agreed, the damages, to be recovered in this action, are not the same with those, recovered in the other action, being merely the excess above what is covered by the former judgment, so that even if that judgment had been satisfied, there would be no bar.

Per Cubiam. Judgment affirmed.