Opinion
July Term, 1827.
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 faithful conduct "during his continuance" therein, and the sheriff was reappointed, and the deputy continued to act under him for several years, it was held that the words "during, etc.," should be restricted to the first year, for the deputation expired then; and whether even express words could have extended the liability further, quare.
THE plaintiff was appointed sheriff of Stokes in June, 1813, and in January, 1814, appointed the defendant McMurray one (219) 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 his 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, etc. In June, 1814, when the plaintiff's office by its tenure expired, he was reappointed, and so also in the years 1815 and 1816. McMurray during all 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.
Nash and Badger for the appellants.
In June, 1814, McMurray was in default as deputy 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 $176.67, and in June, 1816, he was again in default for the year then expired to the amount $1,045.05. 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 $315.
In 1819 the plaintiff brought this action upon the bond of McMurray and the other defendants, and assigned many breaches, of which 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 $315 and $176.67 above stated; and the defendants appealed.
The deputation given to McMurray expired with the appointment of his principal, as the principal could not substitute 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 reappointed, 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 Banner as "now sheriff of Stokes," and the latter recites that he "has appointed McMurray 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 he then held. In support of this, I refer to 6 East, 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. I say thereafter to happen, for had there been at the time any other debt due to Banner from McMurray, McMurray might upon paying it have (222) applied it to that debt, or, in his default of making the application, that right devolved on Banner; or, if McMurray had paid upon any special agreement or for a particular purpose, it would not have 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 nor the one demand, it operates ipso facto a discharge of the obligation, for such application can then do neither 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 sureties cannot be affected by their acts. As to the payment of the $315 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 $191.69 and $167.67, with interest.
PER CURIAM. Judgment reversed, and judgment for the plaintiff for the lesser sum.
Approved: Thomas v. Summey, 46 N.C. 554; Jackson v. Martin, 136 N.C. 199.
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