Opinion
(December Term, 1848.)
When a term 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 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.
APPEAL from the Superior Court of Law of WAKE, at Fall Term, 1848, Dick, J., presiding.
B. F. Moore for plaintiff.
G. W. Haywood, McRae and Iredell for defendants.
(70) This was a case agreed, and the following are the facts: James Edwards was elected sheriff of the county of Wake, for two years, commencing at August Sessions, 1846, when he gave a bond in the penal sum of $5,000 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 $5,000, in conformity with the law requiring a renewal of his official bonds, and died about 20 September following, without having made any settlement for the said taxes or any portion of them.
The sheriff, at his death, had collected, on account of said funds $7,770.86, of which $1,095.18 was on account of the common-school fund, and the residue for county and parish taxes. On 28 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, $5,000. 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 (71) recovery.
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 $1,095.18, with interest from 1 October, 1847; and if the opinion of the court shall be with the defendants, then judgment of nonsuit shall be entered.
And the court being of opinion that the plaintiff is entitled to judgment, judgment was rendered pro forma, by consent of parties. Appeal by defendants.
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 (72) 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 courts, in order to give effect to the intention of the lawmakers, consider the new bonds not as taking the place of the old ones, but as additional thereto.
Bell v. Jasper, 37 N.C. 597, and other cases settle this principle as to the bonds of guardians. Oates v. Bryan, 14 N.C. 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; but 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 taxes, 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 (73) 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 collectible 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 defense 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 CURIAM. Judgment affirmed.
Cited: Moore v. Boudinot, 64 N.C. 193; Coffield v. McNeill, 74 N.C. 537; Comrs. v. Nichols, 131 N.C. 502; Fidelity Co. v. Fleming, 132 N.C. 335.