
    Jacobs v. Hill and Others.
    November, 1830.
    (Absent Co altes, J.)
    Sheriff — Bond of Deputy — Construction—How Long Binding on Deputy’s Sureties. — A bond is executed to a sheriff, during the first year of his shrievalty, by a deputy sheriff and his sureties, the condition whereof recites, that the sheriff has been commissioned sheriff of N. and that the deputy has undertaken the duties of the said office for and during- the time the sheriff may continue in office, &c.: Held, that the contract here recited is a deputation of the office not only for the first hut for the second year also of the shrievalty, and the sureties are hound for the conduct of the deputy during hoth years.
    Same-Motion against Deputy and Sureties — Interest. —The statute 1 Rev. Code, ch. 78, § 33. giving a summary remedy hy motion for a sheriff against his deputy and his sureties, does not authorise the court to allow interest.
    Same — Same—Evidence against Sureties — Judgment against Sheriff. — A motion is made against a sheriff for default of his deputy, upon which the sheriff, with assent of the deputy, hut without the knowledge of his sureties, confesses judgment: Held, the record of this judgment, is admissible evidence ag-alnst the deputy's sureties, upon a motion hj- the sheriff against the deputy and his sureties.
    Same -Bond of Deputy — Effect of Death of One Surety. —A deputy sheriff gives bond with eight sureties to the sheriff: one of the sureties dies: Held, a motion lies on the bond against the deputy and the surviving sureties.
    Jacobs was commissioned sheriff of the county of Nelson, for the year 1820-21, and, by a second commission, was continued in the office for the year 1821-22. During the first year of his service, he appointed Hill his deputy; and Hill, with eight sureties, executed a, bond to Jacobs, with condition which (so far as it is material to recite it *here) was in the following words: “The condition of the above obligation is such, that whereas W. B. Jacobs hath been commissioned sheriff of the county of Nelson, and the above bound J. T. Hill hath undertaken the duties of the said office, for and during the time the said Jacobs may continue in office; now, if the above bound J. T. Hill shall well and truly execute and perform the duties of the said office, as deputy sheriff, and well and truly collect and account for all moneys which he may receive by any process, &c. and shall moreover indemnify, keep and save harmless the said W. B. Jacobs from all costs, fines, forfeitures and amercements, which he may be subject to in consequence of his the said J. T. Hill’s default, in all suits, actions and motions, and shall in all respects execute and perform the duties of deputy sheriff as he may be required by law, then this obligation to be void.” During the second year of Jacobs’s shrievalty, the clerk of Nelson put his tickets for fees into the hands of Hill, the deputy, for collection; and Hill failing to collect and account for them, the clerk made a motion in the county court of Nelson, against Jacobs, the high sheriff, for the amount, and damages at the rate of IS per centum per annum, according to the statute; upon which Jacobs confessed judgment for 807 dollars, the amount due, and the damages to be computed from the 1st November 1822 till paid, and costs. And then Jacobs gave a notice to Hill and seven of his sureties(stating that the eighth surety was dead) that he should make a motion against them in the same court, for the 807 dollars and the damages and costs, which the clerk had recovered against him for Hill’s default. At the trial of this motion, in the county court, the facts above stated appeared in evidence; and it was proved, that Jacobs confessed the judgment to the clerk, with the assent of Hill; which was the only proof adduced of Hill’s default; and there was no proof that Hill’s sureties were privy to, or had any knowledge of Jacobs’s confession of judgment.
    *Upon this state of facts, the county court gave judgment for Jacobs, for the 807 dollars and the damages and costs recovered of him by the clerk with interest on the aggregate of principal, damages and costs, from the date of the clerk’s judgment for them, and the costs of this motion. To this judgment the defendants prayed and obtained a supersedeas from the circuit court of Nelson, which reversed the judgment, and then Jacobs appealed to this court.
    Heigh, for the appellant,
    referred to the cases of The Commonwealth v. Fairfax, 4 Hen & Munf. 208, Royster v. Leake, 2 Munf. 280, and Munford v. Rice, 6 Id. 81, and he said, the question was, Whether the condition of Hill’s bond to Jacobs, bound him and his sureties for his faithful performance of the office of deputy, during both the years of Jacobs’s shrievalty, or only during the first year? a deputy sheriff and his sureties may, during the first year of his principal’s shrievalty, contract that the deputy shall duly perform the duties of the office, for that and the second year of the shrievalty also; and if that was the contract in this case, it fell within the principle of Royster v. Leake, and the judgment of the county court was right; but if the condition of the bond imported a deputation of the shrievalty for Jacobs’s first year of service only, the principle of The Commonwealth v. Fairfax and Munford v. Rice, applied to the case, and the judgment of the circuit court was right.
    The parties contracted with knowledge of and reference to the statute; which provides, that every person commissioned as sheriff, “shall be continued in office for one year after his qualification, and may, with his own consent and the approbation of the executive, be continued for two years,” &c. 1 Rev. Code, ch. 78, g 6, p. 277. The contract recited in the condition of the bond in this case, pursued, substantially, the language of the statute: whereas W. B. Jacobs hath been commissioned as sheriff of and for the county of Nelson, and the above bound J. T. Hill hath ^undertaken the duties of the said office, for and during the time the said Jacobs may continue in office;” not during the term of the office for which Jacobs then held a commission, but, in the language of the statute, during the time he might continue in office; that is, the ■whole time for which he might lawfully be continued in office; namely, two years, and until a successor should be appointed.
    Johnson, for the appellees,
    said, that the principle was settled by the case of The Commonwealth v. Fairfax, that the office of sheriff was an annual office: and considering that the condition of the bond in this case recited that Jacobs had been commissioned sheriff of Nelson (that is, for a single year only) and that Hill had undertaken the duties of the said office (referring to the office of shrievalty for that year) for and during the time the said Jacobs may continue in office; these last words must be understood as importing Jacobs’s continuance in the office he then held, namely the shrievalty for that year. He might have died, or resigned, or been ousted of the office, during the year; and a determination of the annual office, of the sheriff within the year, would have determined the deputation of it to Hill; so that the deputation of the office to Hill, for and during the time Jacobs might continue in it, might just as .properly be applied to his continuance in the annual office he then held, as to the shrievalty for the succeeding year for which he triight subsequently receive a commission. Jn the language of the court in Munford v. Rice, “it is not natural to give to the general expressions” in the bond of this deputy sheriff, “an extension beyond the term for which his principal himself held his office.”
    But the judgment of the county court was plainly erroneous, in other respects. 1st, The only evidence adduced of Hill’s default, was the judgment which Jacobs confessed to the clerk with the assent of Hill, which is not evidence of Hill’s default, as against his sureties. Munford v. Overseers of the poor &c., 2 Rand. 313. 2dly, The judgment *was rendered, not only for the principal, damages and costs, recovered by the clerk of Jacobs, but for interest ‘ on the aggregate amount; but the statute which gave this, summary remedy by motion, authorised judgment against the deputy and his sureties for the amount recovered of the sheriff for the deputy’s default, but not for interest upon it. 1 Rev. Code, ch. 78, (S 33, p. 283. 3dly, The statute gave the motion against the deputy and his sureties, their heirs, executors or administrators, jointly or severally: but the motion here was neither joint nor several: it was a motion against the deputy and seven of his sureties, omitting the representatives of the eighth who was dead.
    Heigh acknowledged, that the statute did not in express words, authorise the judgment for interest; the interest, however, might, perhaps, be justly considered an incident to the principal. As 'to the other objections taken by Johnson, he said, the case of Munford v. Overseers of the poor &c. only settled that a judgment against the principal by default, was not conclusive evidence against the sureties, not that it was inadmissible. The judgment in the present case, against the sheriff, upon his confession made with the assent of the deputy, was admissible evidence of the deputy’s default against his sureties: they might have controverted the fact of the default; but they did not. The representatives of the deceased surety neither ought nor could regularly be included in the same-motion with the living obligors.
    
      
      Sheriffs. — See generally, monographic note on “Sheriffs and Constables” appended to Goode v. Galt, Gilm. 152.
    
    
      
       Same — Bond of Deputy — Nature of. — A contract between a sheriff and his deputy is a private affair, and therefore the bond of the deputy is not an official or statutory bond, with condition prescribed by statute, but may contain just such provisions to protect the sheriff, and impose duties, obligations, and liabilities on his agent, the deputy, as may be inserted in it. It is a common-law bond, not a statutory one. Poling v. Maddox, 41 W. Va. 781, 24 S. E. Rep. 1000, citing the principal case to sustain the proposition.
    
    
      
      Same — Motion against Deputy and Sureties — Interest. — The principal case was cited with approval in Willard v. Overseers of Poor, 9 Gratt. 141.
    
    
      
      Same — Same—Evidence against Sureties — Judgment against Sheriff — Effect.—Crawford v. Turk, 24 Gratt. 176, was an action of debt, brought by a sheriff against his deputy and the sureties of the deputy, on the official bond, of the deputy, to recover the amount of a judgment rendered against the sheriff for the default of the deputy. The question was presented to the court of appeals whether the judgment rendered againsi the sheriff, the deputy having attended the trial and made full defense to the action, was binding and conclusive upon the sureties of the deputy in the action of the sheriff against the deputy and his sureties. It was held that the judgment was conclusive evidence against the sureties of the deputy as well as against the deputy himself. Judge Moncure, who delivered the opinion of the court, discusses at some length the principal case, Munford v. Overseers, 2 Rand. 313, and Cox v. Thomas, 9 Gratt. 323, and shows that they are not opposed to the view which is taken in the case at bar. Though he seems to approve the proposition laid down in Munford v. Overseers, 2 Rand. 313, that a judgment against a principal in a bond is not conclusive against his sureties, he thinks that the case of a deputy and his sureties, so far as it relates to the effect upon the sureties of a judgment against the deputy, does not come within the purview of the rule governing the case of a principal and his sureties: but that the bond given by a deputy and his sureties is a bond of indemnity, and the case of a deputy and his sureties falls under that class of cases in which those who are not parties to the suit, and do not claim under either of the parties, may be bound by the judgment.
      In discussing the decision in the principal case, he says: “It was not necessary to decide, and was not decided in that case that the judgment against the sheriff was not conclusive evidence against the sureties of the deputy, but it was sufficient to decide, as it was decided, that the said judgment was prima facie evidence against them. The remark of Judge Carr in delivering the opinion of the court, that ‘This, we think was ample evidence of the fact, and charged his sureties, unless disproved by them,' was extrajudicial as to the concluding words, ‘unless disproved by them,’ and seems in that respect to have been made without adverting to the distinction noticed by Judge Green, as before mentioned. 2 Rand. 318. Judge Carr treated the case before him as a case falling under the general rule which governs the case of principal and surety, instead of a case falling under the exceptions, which includes cases of contracts of indemnity and the like. Whether it properly fell under the one or the other, the result of the case would be precisely the same.
      “In that case the judgment against the sheriff was by confession, though with the assent of the deputy, and it was therefore contended by the sureties of the deputy, that it did not bind them; there being, as they said, no other evidence of the deputy’s default. But the court said the record showed that the motion against the sheriff was for judgment for the amount of the clerk's tickets for fees put into the hands pf his deputy, and that upon this motion the deputy assented in open court to the confession of judgment by the sheriff; in other words confessed^that he had received the clerk’s tickets and had not accounted for them; this, the court thought, ‘was ample evidence of the fact, and charged his sureties, unless disproved by them.’ Had the judgment been rendered against the sheriff, • not by confession, but in invitum, and against the utmost resistance of the deputy, the court might have thought the judgment conclusive, not only against the deputy but also against his sureties. In the case now under consideration the judgment against the sheriff was in invitum, and against the utmost resistance of the deputy, who was present on the trial, was examined as a witness for the defendant, and seemed to be the person manifesting the most interest in the progress and result of the action.”
      And in State v. Nutter, 44 W. Va. 389, 30 S. E. Rep. 67, 69, itissaid: "I think lhatin this state a judgment against a principal does not bind the surety, as a general rule. Bigelow. Estop. 145; Craddock v. Turner, 6 Leigh 116; Munford v. Overseers of Poor, 12 Rand. (Va.) 813; Jacobs v. Hill, 2 Leigh 393; Black, Judgm. § 586. These cases overrule Baker v. Preston, Gilmer 235. There is high authority, nowever. in favor of the conclusiveness of a judgment against the principal upon the sureties. Stovall v. Banks, 10 Wall. 588; Bigelow, Estop. 118. note 2. I said above that the j udgment is not generally conclusive upon sureties. It depends upon the character of the bond. If it undertakes to pay such judgment as may be recovered, thatjudgment is conclusive, because that judgment is the event on tile happening of which the surety agrees to pai’. Crawford v. Turk, 24 Gratt. 176 If the effect of the obligation is such that the surety is to be bound by the result of litigation between others, he is. in the absence of fraud or collusion, concluded by such result.’ 1 Brandt Sur. § 110; Herm. Estop, ft 139.153; Black. Judgm. § 586. where the bond is not merely to pay damages, but for indemnity against liability by judgment, it is conclusive.''
      In Henrico Justices v. Turner, 6 Leigh 128, Tucker. P., in his dissenting opinion, said: “In the case of Jacobs v. Hill, 2 Leigh, 393, a judgment confessed by tiie sheriff, with the assent of the deputy, bnt without the knowledge of his sureties, was indeed held to be admissible evidence, but not conclusive, for Junen Oahr, in delivering the opinion of the court, said that it charged the sureties, unless disproved by them.”
      See the principal case also cited in Board of Supervisors v. Dunn, 27 Gratt. 622; Carr v. Mead, 77 Va. 160.
    
   CARR, J.,

delivered the opinion of the-court. He reviewed the cases of The Commonwealth v. Fairfax, Royster v. Leake and Munford v. Rice, and then said: Fromi these cases we may deduce two conclusions. 1. That the office of the sheriff being an annual one, he must give an annual bond. 2. That the contract of the sheriff and his deputy being a private affair, not regulated as to its continuance by law, may be either for one or two years. The case before us arises on a bond executed by a deputy and his sureties; and the question is, Whether the parties intended *to be bound only for one year, or for two? The statute concerning sheriffs enacts, “that every person hereafter commissioned and qualified as aforesaid, shall be continued in office for one year after his qualification, and may, with his own consent and the approbation of the executive, be continued for two years” &c. The bond here recites, that “whereas Jacobs has been commissioned as sheriff &c. and the said Hill hath undertaken the duties, of the said office, for and during the time the said Jacobs may continue in office” &c. From the similarity (almost identity) of expression in the law and the bond, it seems to me highly probable, that the parties meant to be bound for the whole period during which the sheriff might under the law hold the office. The law says, the sheriff shall be continued in office for one year, and may be continued for two years: the bond says, the deputy has undertaken the office, for and during the time the sheriff may continue in office. If the words of the bond had been may be continued in office, they would have been the same used in the statute; and we must have concluded, that by adopting the very words of the statute, which was probably before the parties, they meant to be bound for the same period, during which, under those words, the sheriff might hold the office; namely, two years. But what is the difference in meaning, between the words may be continued in office, and may continue in office? The parties knew the law; knew, that the sheriff must continue in office for the first year, but that for the second year, his own consent and the approbation of the executive were necessary. When they say, then, we agree to be bound, as long as the sheriff may continue in office, do not they mean exactly the same, as if they had said, we will be bound as long as the sheriff may be continued in office? He could not continue in office, unless he was continued in office. So far as his own consent operated, he-might be said (using the verb actively) to continue in office: so far as the approbation of the executive operated, he might be said, by that approbation, to be continued in office: but he could not continue in office ^without a concurrence of both these. The two phrases then, as applied to the continuance of the sheriff in office, mean precisely the same thing; and I conclude, that by using this language, the obligors meant to be bound for the whole time that the law would permit the sheriff to continue, or to be continued, in the office. This conclusion may be fortified by another view of the subject. The bond here, recites that the deputy had undertaken the duties of the office of sheriff, which seems as if he had taken the whole office. The history of the country informs us, that nothing is more common than for a sheriff, so soon as he is appointed, to form otit his office for the two years to a deputy; and this court has sanctioned the custom. It seems very probable, from the recital in the bond, that this is a transaction of that kind; and so, the bond of the deputy would of course be given for the two years.

It was also objected by the counsel for the appellee, that the judgment of the county court against the sureties of the deputy was wrong, because the judgment recovered by the clerk against the sheriff, being by confession, did not bind the deputy’s sureties, and there was no other evidence of the deputy’s default. But the record tells us, that it was a motion against the sheriff, for judgment for the amount of the clerk’s tickets for fees, put into the hands of his deputy Hill, during the second year of the shrievalty, and that upon this motion, Hill, the deputy, assented in open court, to the confession of judgment by the sheriff; in other words, confessed that he had received the clerk’s tickets, and had not accounted for them: this, we think, was ample evidence of the fact, and charged his sureties, unless disproved by them.

It was farther objected, that one of the sureties being dead, this motion could not be made against the survivors; for it must be a joint motion against all, or a several motion against one; and this was neither. This objection is considered unsound. At common law, the principle is perfectly settled, that by the death of one or more of the obligors, *the obligation is not discharged, but survives against those who remain, and an action lies against them as surviving obligors. So, on the joint and several bond given here by the deputy and his sureties; the statute gives a motion against them, their heirs, executors and administrators, jointly and severally ; and one of the obligors dying, the motion lies against the survivors jointly, or any one of them severally. It would be strange indeed, if it were otherwise; for then, in proportion to the number of sureties, added for the safety and protection of the sheriff, would be the chance of his losing by the death of some one of them, the remedy given him by the statute; and this loss produced by the act of God, which the maxim tells us shall injure no one. But we have authority also against this. In Shelton v. Ward, 1 Call, 538, the motion 'was against the sureties of a deceased deputy sheriff. And in Royster v. Leake, the motion was against Royster and others, sureties of Vaughan, deputy for Payne; and Mr. Wickham took the very objection, that the law gave either a joint or a several motion, but that was neither: yet the court affirmed the judgment.

It was also objected that the judgment was erroneous in ’ giving interest on the aggregate of principal, damages and costs, which had been recovered against the sheriff for the default of the deputy. It seems to me just, that such interest should be awarded, and I had thought there was a positive law giving it; but I have not been able to find it; and, as the section of the statute under which this motion was made, says nothing about interest, and acts giving summary remedies are construed strictly, the judgment of the countjr court, so far as it gives interest, must be pronounced erroneous.

The judgments both of the circuit and county courts, must be reversed, and judgment entered here, for the aggregate amount of the principal, damages and costs, recovered of the sheriff for his deputy’s default.  