Governor v. Stonum

ORMOND, J. The question to be decided ' in this case grows out of an act of the legislature, passed in 1832. “ No action, suit, or motion, shall be maintained against the security, or securities of any sheriff, constable, or other public officer of this State, for any misfeasance, malfeasance, or other cause whatever, hereafter committed, unless the same be commenced or prosecuted, within six years, next after the commission of the act complained of.” [Clay’s Dig. 329, § 90.] The sheriff having collected certain monies under executions in favor of the Branch Bank at Montgomery, returned them satisfied, and shortly afterwards died, and no demand was made of his administrator, until about nine years after the return — and the point to bte determined is, when did the statute commence running in favor of the sureties. That this is one of the acts, or omissions of duty, which it was the design of the legislature to provide against, can admit of no doubt. It is indeed the prominent, and chief responsibility of the sureties of a sheriff, vastly exceeding all other misfeasances, and nonfeasances together, and such a construction must be put upon the act, as will effectuate its manifest design. If the statute does not commence running urn %til after a demand is made of the sheriff, then in such a case as this, the act will not bar a suit against the sureties until fifteen years after the return of the shériff, had conclusively ascertained their responsibility for the money collected by him. Such a result would render the statute wholly inoperative, as it is clear that it was intended the sureties should not continue responsible for the acts of their principal, longer than six years. The key to the statute then is, the responsibility of the sureties for his acts; when that commences, the statute begins to run. To cover all possible cases, the legislature employed the most general terms, “ mifeasance, malfeasance, or other cause whatsoever,” and in our judgment this language embraces the case of the retention of money by the sheriff, after its collection. The most formidable argument urged by the plaintiff in error is, the doctrine settled by this court, in several cases, and referred to in his brief, that the sheriff is not liable to an action, until a demand is made of him; or some act of his is [684] shown, equivalent to a conversion of the money to his own use. McBroom v. The Governor, 6 Porter, 32, and the Governor v. Robbins, 7 Ala. R. 80, are instances of this kind. These, and other decisions of this court, are made in reference to our statutes, giving a penalty if the money is not paid over on demand; or else were actions on the sheriff’s bond, where it was necessary to fix a default on the sheriff, in order to charge his sureties : but in all these cases, it is admitted, that a conversion by the sheriff will render a demand unnecessary. If this action was against the sheriff, unless he proved that he kept the money ready to pay over on demand, the inference from such a long detention would be irresista-ble, that he had converted it to his own use. Although the sheriff may not be liable to any of our statutory penalties, or the plaintiff be entitled to the summary remedies .afforded him, until he makes a demand of the money, yet it is equally certain, it is the duty of the sheriff to pay over the money, and to give information if in his power, that he has the money ready to be paid over; and if he holds it an unreasonable time, without any effort to give notice to the plaintiff, it would be such neglect as would be evidence of an intent to convert the money to his own use, as in the case of any other agent. [Lillie v. Hoyt, 5 Hill, 395.] So also, the death of the sheriff, which happened soon after the money was collected, must of necessity have caused a conversion of the money, as his representative could have no means of distinguishing the money of the plaintiff from that of his intestate. [Taylor v. Easterling, 1 Richardson Rep. 314.] What is said in the case of the Gov. v. Robbins, supra, and in Dumas v. Patterson, 9 Ala. 486, that the fact that the sheriff did not retain the identical money which he had received in each case, was not evidence of a conversion, must be understood in reference to that particular state of facts, and amounts to no more than is there stated — that the mere omission to keep each parcel of money received by him separate from all others, would not be evidence of a conversion. This however ceases with the necessity of the case, and after a considerable lapse of time, the inference is the other way, that the money so received has been mixed [685] with the proper monies of the sheriff, and used, and employed by him as his own. We have said this much, in reference to the decisions referred to, that their force may not be weakened by any casual expression dropt here. Our decision here, is based upon what we consider the true and proper exposition of this statute — that when the responsibility of the surety is conclusively ascertained, then .the statute commences running in his favor. Any other construction of the statute would make it perfectly illusory, as he has no means of ascertaining whether the money has been paid over or not, and cannot therefore protect himself by insisting on a suit being brought, or by discharging it himself and resorting to his principal. This view renders it unnecessary to scan the charge of the court, to ascertain whether it is critically correct as the court would have been authorized in going farther than it did, in its charge to the jury. Let the judgment be affirmed.