Imágenes de páginas
PDF
EPUB

State v. Swinney.

held that the giving of time to a tax collector by an act of the legislature, was a release of his sureties. We concur in the correctness of these decisions, and hold that in the present case the demurrer was properly overruled." MCFARLAND, J., dissented.

This decision is approved in Prairie v. Jenkins, 75 N. C., 545 as follows: "The principle that if a creditor by any binding contract gives time to a principal debtor, the sureties are thereby discharged, cannot be questioned. It applies when a State is the creditor as well as when an individual is. A State may by an act of the assembly, incur an effective obligation to give time, although there was no consideration for the act; for although it may be repealed, yet while it stands, it binds the officers of the State, and puts it out of the power of the sureties to use the name of the State in enforcing the obligations of the principal. These conclusions are supported by the judgment of the Supreme Court of Tennessee, in the case of Johnson v. Hacher, at October Term, 1874."

The contrary is held in Commonwealth v. Holmes, 25 Gratt. 771. The court said: "In cases of suretyship, in private and individual obligations for the payment of money, there can rarely arise any serious difficulty as to the nature and extent of the surety's liability. But when as here his obligation is that a public officer shall discharge his duties according to law, the delicate and important question at once arises, what is that law according to which the officer is to discharge his duties? The appellee's counsel insist and cite authority to show, that it is the law existing at the date of the contract, and that alone. No Virginia authority has been cited to that point; and a just interpretation of the words, and a due regard to the nature and object of the bond and the office would perhaps justify us in holding that the condition of the bond was to secure the due discharge by the officer of all such reasonable duties germain to the office as might be imposed by law during his continuance therein; that the legislature could not have intended by taking bond to secure the public interest, to deprive itself of the power of otherwise contributing to the same end in a proper way without first obtaining the consent of the surety. It would perhaps not be unreasonable to hold, under such a bond as this, that the legislature had not intended to do, and had not done an act so inconvenient and indeed so prejudicial to the public interest.

"But without deciding that proposition, and conceding, as a general rule, that the law at the date of the contract is the law, and the only law which enters into and forms part of the sureties' contract, the question again arises, what part of that law is it which enters into and forms part of the sureties' contract?

"For the purposes of this case that question may be more conveniently answered by showing what kind of laws do not enter into the sureties' contract."

[ocr errors]

"Laws, then, merely directory to the officers of government, requiring that settlements shall be made at short and stated periods are provisions of law created by the government for its own security and protection, and to regulate the conduct of its own officers. They are merely directory to such officers, and constitute no part of the contract of the surety.' Mr. Justice STORY delivering the opinion of the Supreme Court in United States v. Kirkpatrick, 9 Wheat. 720, 736–7.

"In the United States v. Vanzandt, 11 Wheat. 184, Mr. Justice WASHINGTON, delivering the opinion of the court, confirms the authority of the U. S. v. Kirkpatrick; and speaking of analogous provisions made in that case for the safety of the public, he says, p. 190, The provisions in both laws are merely directory to the officers, and intended for the security and protection of government, by insuring punctuality and responsibility; but they form no part of the contract with the surety.'

"The same principle is reaffirmed in United States v. Nicholl, 12 Wheat. 509, and United States v. Boyd, 15 Pet. 187, 208. In the last mentioned case Mr. Justice CATRON says for the court: The regulations requiring settlements to be made by its officers at short periods, are designed for the protection of the government, and merely directory to the offices, and form no part of the contract. Such is the settled doctrine of this court as holden in United States ▼. Kirkpatrick, 9 Wheat. 720; United States v. Vanzandt, 11 id. 184; and United States v. Nicholl, 12 id. 509.'

"The force of these principles has been attempted to be averted by the counsel for the appellee, by showing that the question directly decided in each of the cases involved laches merely; and not a change or violation of the sureties' contract. That is true; but it is equally true, that in order to reach that question it became necessary for the court to in

State v. Swinney.

quire and decide what the contract of the surety really was; and it was held unanimously in all the cases, that these directory regulations for prompt settlements were regulations for the protection and security of the government, and formed no part of the contract of the surety. Forming no part of that contract, it follows as a necessary consequence, that like any other act of a like nature, the provision may be extended, altered or repealed at the will of the legislature, and without the assent of the surety, looking alone to the public interest. And we think, as a general rule, that what in such a case will advance the public good will at the same time protect the interest of the surety. Indeed the indulgence granted to the officer by the extension of time in this case is not a contract, but is an ordinary act of legislation for the public good, with no consideration for the extension moving from the officer; and it is repealable at the will of the general assembly. Such extension was held, and we think correctly, by the Supreme Court of Mary. land, in the case of the State v. Carleton, etc., 1 Gill, 249, 258, not to operate as a discharge to the sureties. The law was not considered as binding or obligatory upon the State, but alterable by the legislature at their pleasure, whenever the interest or convenience of the State might require it.' And this we think is the law in the case.

**Several cases in the English courts have been cited in seeming conflict with these views, Were that actually so, we would not hesitate to disregard their authority, however high may be our respect for the source from which they come. But when carefully examined, these cases will be easily distinguished from the case in judgment. They were cases in which such new and additional duties were imposed on the officer as to make the office itself, in the opinion of the court, a new office, to which, of course, the contract of the surety did not extend. This is merely the conceded doctrine that you cannot enlarge or materially vary the surety's contract without his consent.

"Two cases from the Supreme Court of Illinois, reported in 1 and 2 Gillman, which seem to be very much in point, have also been relied on for the appellee. On these cases we will only say, that they seem to be in conflict with the principles established by the Supreme Court of the United States and the Supreme Court of Maryland in the cases above cited; and we think the latter the better law, and approve them."

In Prairie v. Worth, 78 N. C. 169, the same was held as to a surety on a sheriff's bond, where it appeared that certain conditions on which the extension was granted had not been fulfilled; and on the precise point here in question the court remarked: "If the sheriff had brought himself within the proviso of the act of December 1, Laws of 1873-4, chap. 4, by a compliance with the conditions precedent, it does not follow that the surety upon his bond would then have been discharged. A distinction is made between private bonds, individual and corporate, and public official bonds given to secure the performance of continuous public duties affecting the general welfare. The collection of public taxes must be conducted under the continuous supervision and control of the legislative branch of the government. The laws affecting the assessment and collection of the public revenues must be from time to time made more or less rigorous in their enforcement, or otherwise modified to conform to the existing condition of the country, the depression of trade, the failure of crops, the scarcity of money and other causes, often delicate and complex, as affecting the sensitive subject of taxation. The power which imposes the burden of taxation is the sole power that can legally indulge, mitigate or suspend the assessment and collection of the revenues. Every collecting officer therefore accepts office and gives bond, affected with notice and subject to the exercise of this right of sovereignty. It enters into and becomes a part of the contract with the State, and is as binding upon the bondsmen, as any express condtion of the bond. The sheriff took the office and executed the bond, subject to the power of the legislature to control its duties, as the public good might require."

[blocks in formation]
[blocks in formation]

The plaintiff deposited with the defendant, a merchant, a sum of money for safe keeping, without reward, and with permission to use it, of which he never availed himself. His book-keeper, by the acquiescence of both parties, occasionally temporarily took small amounts to make change. It was kept separate, and was stolen without defendant's fault. Held, that defendant was not liable.

A

CTION to recover deposit of money. The opinion states the case. The plaintiff had judgment below.

Taylor & Kyle and L. C. Standifer, for appellant.

Stone & Cook, for appellee.

CHALMERS, J. Appellee Hall placed in the iron safe of appellant Caldwell the sum of $35. It was contained in an open box, and to it and from it Hall added and withdrew at his pleasure; so that at one time he had on deposit as much as $700.

was any

The money was never mingled with Caldwell's nor receipt given for it, nor any entry of it made upon his books.

His book-keeper, who carried the key of the safe, sometimes used small portions of it in making change, always dropping into the box tickets showing the amounts so withdrawn, and always replacing them within a few days. His habit in this regard was known to and acquiesced in by both the depositor and the depositary. Some months after the date of the original deposit Caldwell's safe was robbed, without any fault or negligence on his part. His own money was lost along with that of Hall and other depositors.

Caldwell was not a banker, but a merchant, and the deposits belonged to friends and customers to whom he had not made himself liable. The day before the robbery, his book-keeper used $15 or $20 of Hall's money, which not having been replaced, he paid to Hall after the robbery.

This suit is brought by Hall to recover the balance of the sum stolen. The right to recover is rested upon the statement testified to by Hall, but denied by Caldwell, that at the time of the first

Caldwell v. Hall.

deposit, it was understood and agreed between the parties that the money was to be used by Caldwell in his business, if he so desired, and that it was received on this basis. It is not claimed that Caldwell actually then became the borrower of the money, and that the relation of creditor and debtor then arose, but that Caldwell became a bailee of the money, with an agreement to return it in specie, or to use it, and repay it with other money, at his option; and this, it is insisted, constituted that peculiar species of bailment known in the civil law as a mutuum.

This irregular and anomalous character of bailment, well defined and recognized in the Roman or continental law, is alluded to rather than distinctly announced by the common-law writers. In our system of jurisprudence it is treated as a sale rather than a bailment, and this seems to be its proper aspect, since its practical effect must always be to operate a transfer of title where chattels are deposited, and to create the relation of lender and borrower where money is involved. In the one case it is a sale, with the right in the purchaser to return the thing delivered or its equivalent in kind, though not in specie. In the other it is a deposit of money with the understanding that it is to be surrendered on demand, but with the right in the receiver to use and replace it if he desires. If A. delivers to B. a quantity of flour or wine or cotton. with the agreement that the latter may use it at his pleasure, and return its equivalent in the same species of goods, this is nothing more or less than a purchase, with the right in the buyer to pay in a particular manner; and if the goods are neither returned in specie, nor paid for in the manner contracted for, an action of assumpsit may be maintained for their money value. The result is the same where the thing delivered is money. It follows therefore that in the common law the idea of bailment in this class of cases is lost in that of a purchase, where the thing deposited is a chattel, and in that of debtor and creditor where it is money. Schouler on Bail. 5, 7, 73, 75; Edw. on Bail. 136-186; Story on Bail., § 283.

In order for this suit to be successfully maintained, such a state of facts must be shown as will warrant the idea that Caldwell, when the money was deposited, became at once the debtor of the depositor; and testing the case by Hall's own testimony, it is evident that such was not the contemplation nor agreement of the parties. The true aspect of the case, under the facts testified to by him, is this; the money was received by Caldwell as a bailee without re

Turner v. State,

ward, and was to be so held and accounted for by him, with permission however to use it in his business, if at any time thereafter he should elect so to do. If he did use it he was to become at once the debtor of the depositor. If he did not, but on the contrary it should continually remain on deposit at all times subject to be drawn out by the depositor whenever he chose, and without consultation with Caldwell, the latter remained a bailee without hire and bound only for that ordinary care demanded of persons occupying that position. It is not pretended by appellee that appellant, at the time of the deposit, borrowed the money, or in any way indicated a present intention to appropriate it to his own use; and the subsequent manner of dealing with it by both parties shows that it continued to be regarded by both as the property of the depositor. Under this state of facts, there was no liability upon the depositary.

Reversed and remanded.

TURNER V. STATE.

(60 Miss. 351.)

Criminal law-evidence — wife against husband.

On an indictment of a husband for an assault and battery on his wife, she may be compelled to testify against him.

YONVICTION of assault and battery. The opinion states the case.

CONVICTION

Slack & Longstreet, for appellant.

J. L. Harris, for State.

COOPER, J., The appellant was indicted for an assault and battery committed upon the person of his wife. On the trial of the cause the wife was introduced by the State as a witness to prove the commission of the offense; she objected to delivering her testimony, and thereupon the defendant protested against her being compelled to testify, and excepted to the action of the court in directing her

« AnteriorContinuar »